By Angeline Chan
With the onset of the Wuhan coronavirus outbreak, fewer people are taking to the streets in Hong Kong – but for prosecuted protesters, the work is just getting started.
By the end of January 2020, over 7,000 people had been arrested in connection with the protests, about 1,000 charged, and 20 sentenced. Common charges are criminal damage, possession of an offensive weapon, assaulting the police, obstructing the police, participating in an unlawful assembly, and participating in a riot.
Those who are charged are brought to court. A minority are not granted bail, and have to remain in custody for months pending the outcome of their cases. Those who are granted bail by the court have to comply with bail conditions such as reporting, curfews and prohibitions from going to certain areas.
Those who have been arrested but not yet charged have been offered police bail and hence can carry on with their lives apart from having to report to a police station about once a month. They also have the option of refusing police bail. However, regardless of whether they are on bail, they face the prospect of being charged later on.
And even if they are not, in many cases the mere fact of arrest, whether justified or not, already does a fair amount of damage. Some people have lost their jobs for the sole reason of being arrested, even if no case is made out against them in the end. This is not to mention the great emotional stress to those arrested and their loved ones while they are detained by the police without outside contact, especially with prevalent accounts of police brutality and misconduct.
The charges of criminal damage, possession, assault and obstruction usually involve relatively simple and discrete facts, and a smaller number of defendants. It is these cases which have already progressed to verdict and sentence.
In comparison, the public order offences of unlawful assembly and riot involve more elements to be proven by the prosecution, facts that span a longer time period, and hence more laborious fact-finding. These cases are also more likely to involve legal argument, for example, what constitutes “participation” in a riot.
Further, it is in these cases that we have seen a high number of defendants per case – one will recall instances in which there was not even enough physical space in the dock for the defendants to stand, and in which the hearing had to run for over 12 hours or till past midnight for all defendants’ applications to be dealt with. These practical constraints have made the process even more taxing that it already would be for the defendants.
Initial hearings are called mentions, at which matters such as bail conditions and the state of investigation are dealt with. Only when an investigation is completed are cases fixed for trial. A trial is the substantive hearing in which witnesses are called and the evidence is scrutinized. Hence, trials are of a longer duration.
For example, the unlawful assembly case of 3rd August 2019 in Mong Kok, involving nine defendants, has been fixed for a trial of 23 days in a magistrate’s court spanning this July and August. This will be in all probability the first unlawful assembly or riot case that will proceed to trial.
At the time of writing, none of the riot cases have been fixed for trial yet. The earliest that they will be heard is likely early 2021. While it is often said that rioting will attract a maximum sentence of 10 years, this will not be so in any of the current protest cases. The reason for this is the venue chosen for hearing these cases.
Generally speaking, criminal cases in Hong Kong can be tried at one of three levels of court, in order of increasing jurisdiction: the magistrates’ courts, the District Court, and the High Court. The less serious cases (criminal damage, possession, etc.) are being tried at the magistrates’ level, where the court can impose a maximum sentence of 2 years. At the District Court, the maximum is 7 years; and at the High Court, life imprisonment. At the magistrates’ level and at the District Court, cases are decided by a single judge; it is only at the High Court that trials can be heard before a jury. As all the present riot cases have been or will be transferred to the District Court, none of them will be decided by a jury.
Between the three branches of Hong Kong’s governance, the judiciary has traditionally enjoyed more legitimacy than the virtually unaccountable executive and the crippled legislature. But the courts are not designed to and indeed are unable to address the massive social resentment that lies behind these protest cases.
It is sometimes difficult not to think of the grand scale of arrests and prosecutions as a massive exercise in futility. Faced with a case of a young man arrested with a home-made petrol bomb in his backpack, the court has no choice but to sentence him to imprisonment, and at most mitigate his sentence for his civic-minded fervour.
But the government’s consistent arrogance in failing to listen to the demands of its citizens has shown no sign at all of abating – even when faced with the outbreak of a pandemic right at its doorstep. It is deeply unfair that the cost of this is being borne by all of society, and disproportionately so by those who do not have a chance to make their voices heard. Nothing is achieved by the crackdown apart from punishing those who cared enough about their hometown to take a stand, and alienating an entire generation.
Angeline Chan is a solicitor in Hong Kong and a member of the Progressive Lawyers Group. She has been providing legal assistance to people arrested due to the anti-extradition protests.