We continue to make legal history of a rather dubious kind. Consider the case of the four University of Hong Kong (HKU) students who appeared in court this week and were sentenced to two years of correctional servitude.
The first of several interesting things about this event is that the offence was purely an expression of opinion. The four were among the members of the student council which, the day after a man had stabbed a policeman and then himself, passed a motion lamenting the death of the attacker, and describing him as a “martyr”.
You may think, as I do, that this was a thoroughly misguided opinion. Indeed the students seem after further thought to have come to the same view, because the following day they apologised and retracted it.
What boggles my mind, having dabbled extensively in student politics in my time, is the majestic intervention of the law in what is usually considered a rather impractical and private matter.
In student political circles one hears thoroughly misguided opinions in large quantities. Some of them make their way into motions and some of these motions are passed. The passed motion then lands with a soundless plop in the great well of public opinion, which does not, to be very honest, care what students think about anything.
It is true that people once blamed the Oxford Union for World War Two on the grounds that passing a motion in 1933 that “This house would not fight for King and country” had encouraged Hitler. This is now considered rather unlikely. I cannot think of a more recent example. Riots, protests or occupations attract attention, as they should. The passage of motions causes no ripple in local politics, let alone national ones.
Both the Oxford Union and its Cambridge counterpart have from time to time considered outrageous motions clearly intended to epater la bourgeoisie, or scandalise the middle classes. Nobody was arrested.
These days I suppose the misguided motion can be put on the internet, like everything else. That does not mean anyone takes much notice of it. Indeed it seems the only reason the HKU case became a cause celebre was the storm of abuse from people who disagreed with it.
I am unable to believe that this disagreement was based on a principled objection to suicide or knife violence. Some people were eagerly seeking to establish that it was no longer safe to express any opinion but adulation about our police force, or any opinion but disdain for our protesters.
The result of this, as usual, is that an obscure event which happened two years ago is still in the news, as it is here. Competing with all that good news about Hong Kong we have the discovery that ill-considered student oratory is now a serious criminal offence.
Which offence it might be brings us to a curious feature of the recent proceedings. The judge, Adriana Noelle Tse Ching, faithfully followed the current judicial practice of subjecting anything offered in mitigation to scathing criticism as soon as it arrived. This led to a curious discrepancy.
One of the defending counsel pointed out that there had been a plea bargain: the prosecution agreed to drop a charge of “advocating terrorism” and the defendants agreed to plead guilty to “incitement to wound with intent”.
To the untutored lay mind this looks rather as if they are admitting that the motion inspired an attack which had already taken place before it was passed, an innovative concept. No doubt it makes sense to lawyers.
Anyway the deal clearly proceeded on the basis that the incitement to wounding charge was a less onerous one than the advocating terrorism one. But the learned judge rejected this suggestion on the grounds that the maximum sentence for inciting to wound was life imprisonment. Sticking to terrorism would mean a maximum of 10 years.
So in her view the defendants had admitted a more serious offence with which they had not been charged, in return for having a less serious one dropped. Was there some confusion here?
The judge, it is reported, said that the students must “bear the consequences of their legal strategy”, which sounds a bit ominous, especially as she followed up with “it’s about time for someone to learn there are consequences to actions.”
It is difficult to know what was going through the judge’s head at this point. Was this a reminder that defendants must bear the consequences of their counsel’s errors? Or was it a comment on the case as a whole, in which case I cannot resist the thought that there was no action here. The crime, if it was a crime, consisted entirely of speech.
There was no suggestion that the deplorable motion was followed by an epidemic of knife attacks, or even by an epidemic of equally objectionable motions being passed by other student unions. The law has become an elusive and occasionally surprising animal. This was an error by people who had not noticed how the law is used these days.
Rather similar, in fact, to the judge’s own action in having two people’s mobile phones seized during an earlier hearing on the grounds that the law requires phones to be switched off in court. Not so. The Judiciary’s policy is that you may text, but not talk. In the light of this case you would do well to choose your words with care.
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