The protests for more democracy in Hong Kong are far from over but the government is already considering who to prosecute and for what offenses. It will be a difficult decision involving complex legal and political questions.
On Friday, the Legco house committee passed a proposal by Jeffrey Lam of the Business and Professionals Alliance for Hong Kong for a comprehensive investigation into the organisation and planning of the protests, the sources of funds, public safety and impact on society.
On Thursday, Hui Chun-tak, chief superintendent of the police public relations branch, quoted a statement from the Hong Kong Bar Association that participants of the protests “should be ready to accept the criminal consequences of their conduct”.
The government has considerable scope in making its decision. None of the street protests are approved; even taking part in an illegal assembly is an offense.
Under the Public Order Ordinance of 1997, the government can prohibit a public meeting or procession on the grounds of “national security”, “the protection of the rights and freedoms of others”, “public safety” and “public order”.
Under section 17A, without police approval, such a meeting is a criminal offense and can be punished by up to five years in prison. In 2011, police arrested 444 protesters and prosecuted 54 of them.
In May 2013, Melody Chan, a solicitor trainee, was arrested for her alleged involvement in blocking roads in Central two years earlier and given a one-year good behavior bond in July that year.
“All the citizens of Hong Kong enjoy the right to a peaceful and lawful demonstration,” said Director of Public Prosecutions Kevin P. Zervos during her trial. “However, members of the public should also respect one another’s rights and abide by the law.” That will be the legal basis of prosecutions.
The easiest to prosecute will be those who attempted to take over the space in front of government headquarters on Sept. 28 and were repelled by police with tear gas.
Lawyers describe this as an “open and shut case” because of the video evidence and many police witnesses. They can be charged with “riotous assembly”, for which the maximum term is 10 years.
So the law is clear enough. The question for the government is who to prosecute and when. During the case against Melody Chan, Kevin Zervos said: “This is not a political prosecution.”
The government is under strong pressure to take action from the many in Hong Kong who oppose the protests and whose lives and businesses have been affected and from pro-Beijing legislators.
The voices from the mainland are even louder.
“The opposition in Hong Kong must understand the law that extremes turn into the opposite,” wrote Yang Guangbin, a politics professor at People’s University, in the Global Times on Friday.
“The anti-secession law is not only directed at those who want the independence of Taiwan. The system of ‘one country, two systems’ does not allow illegal activities in Hong Kong that harm the nation.
“China is governed by a single constitution. No one has special privileges to act outside the constitution,” he said.
A commentary in the newspaper that day said the United States was heavily involved in fanning the protests.
“Benny Tai and other leaders of Occupy Central have close ties with the American National Democratic Foundation and other American organisations.
“The US has provided a refuge for those who want to split China, Fa Lun Gong and political dissidents and can set up a base there. You can say that the US has become a refuge for those who want to overthrow the Chinese government, divide the country and cause chaos,” it said.
In other words, the leaders of the protest are not only involved in illegal assembly but a darker plot, in collaboration with a foreign government, to harm the national interest.
The newspaper also said that the revelation of the payment of £4 million sterling by the Australian firm UGL to CY Leung at this critical moment in the protests were another example of the “western forces” and the democratic camp in Hong Kong working together.
On the other hand, the government must pay attention to public opinion in Hong Kong that is sensitive to anything that looks like political persecution.
It must base any prosecution on a strong legal basis that will stand up in court and rebuff charges of a political vendetta.
For this reason, it is likely to wait several weeks, at least until the protesters have left the streets and the political temperature has fallen before it starts any cases.
It may choose not to press charges against the vast majority of students because of their age and inexperience and only target a limited number of student leaders and the organisers of Occupy Central.
Any cases will be followed blow-by-blow by the media and could turn the defendants into martyrs and further inflame public anger.
It will need the wisdom of Solomon to balance all these conflicting interests.
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