Hong Kong’s top court ruled on Tuesday that the three student leaders convicted for their roles in a protest that led to the pro-democracy Occupy Movement in 2014 should not be jailed, overturning the prison sentences given to them last year.
In a unanimous decision, a panel of five judges of the Court of Final Appeal (CFA) allowed Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang to walk free, although they warned against future acts of civil obedience, the Hong Kong Economic Journal reports.
The trio were found guilty of taking part in an unlawful assembly on Sept. 26, 2014, shortly before the Occupy protests officially kicked off, when they stormed a barricaded area outside the government headquarters in an initiative called “Reclaim Civic Square”.
Wong and Law were ordered in 2016 by a magistrates’ court to do community service while Chow was given a three-week jail sentence suspended for one year.
But the Department of Justice considered the punishment inadequate and therefore submitted an application for a judicial review to the appellate court.
In August last year, the Court of Appeal sentenced them to six to eight months in prison, prompting the trio to challenge the decision in the CFA.
Backing the original ruling given by Magistrate June Cheung Tin-ngan, the top court’s panel said she did not make any mistake on the case, disapproving the appellate court’s claim that she made five errors of principle, including not considering deterrent factors at all and giving incommensurate weights on the defendants’ backgrounds and motives.
As the panel considered the original punishments given to the defendants obviously “not too light”, the appellate court then had no basis to hand out different weightings on the sentencing elements. The panel said the judicial review requested by the justice department should be overruled.
It also said it is inapplicable for the appellate court to apply the new guideline it set, which is more severe than the previous sentence range, retroactively.
That said, the top court justices acknowledged the correct message sent by the appellate court, that is, even a low degree of violence, as in this case, will not be condoned and any elements of violence must be deterred.
According to the judgment, civil disobedience is not a mitigating factor if defendants “cross the line of acceptability”, particularly if violence is involved.
Such an idea deserves to be recognized in Hong Kong and every jurisdiction that respects personal rights, the CFA said.
In a statement released on Tuesday night, the justice department said it welcomes the CFA judgment, especially the part that states no unlawful assembly involved with violence can be condoned, adding that it is groundless and misconceived to say there were political motives behind its application for judicial review.
Wong lamented the latest ruling, calling it a “sugar-coated” and “harsh” punishment. He also said the road to democracy in Hong Kong will be bumpier in the future because the “Reclaim Civic Square” initiative was deemed violent and the standards for civil disobedience was tightened.
Law called the result a victory for the three of them but a defeat for Hong Kong democracy as they would definitely face heavier sentences should the same initiative take place at present.
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