(Please roll down for English version)
敬請 聯合國人權事務委員會密切關注：近來，香港政府，為消滅異見聲音，不斷利用香港公安條例中惡法，濫捕濫告，而暴動案往往嚴刑峻罰，令大量義人含冤入獄，均涉嫌違反國際人權公約。香港公安條例中過時殖民地惡法，包括非法集會、非法集結，違反國際人權的言論集會自由，應予廢除。公安條例暴動罪則過時，定義模糊，刑罸過重，不合國際人權公約的比例原則，應予廢除或釐清縮窄定義。晚近某些暴動案法官涉嫌違反無罪推定；判刑或有重刑觀念，並忽略抗暴人士的示威行動對社會之貢獻。敬請 協助含冤入獄人士。
香港《公安條例》源於英治時期，六七土共暴動，導致無辜市民死傷枕藉，港府乃制訂《公安條例》，對付土共，如規定公眾集會要向警方申請牌照，否則犯非法集會罪。一九九五年立法局修訂公安條例，規定公眾集會只須事先通知警方。詎料九七後，港共政權恢復惡法，要集會人士事先申請警方不反對通知書，用以打壓爭取民主人權自由人士，惡法中非法集會（unauthorized assembly）、非法集結（unlawful assembly）罪名違反國際人權公約訂明的言論、集會、結社自由。
To: Human Rights Committee, United Nations
Re.: Pls Look into Hong Kong Government’s Abuse of Public Order Ordinance to Harass Dissidents
Please look into the fact that recently, in order to stifle dissident voices, the Hong Kong Communist Government has been arbitrarily arresting and prosecuting people by way of outdated clauses in Hong Kong Public Order Ordinance. And the sentences of defendants in riot cases are in general incredibly harsh, such that a lot of good people are now in prison. These phenomena are suspected of contravention of International human rights.
Evil clauses in the Public Order Ordinance, like unauthorized assembly and unlawful assembly, should be abolished as they contravene the rights to freedom of speech, assembly and demonstration, as enshrined in the International Covenant on Civil and Political Rights. The riot charge is also outdated, its definition vague, and its maximum penalty too heavy, contradicting the notion of proportionality which is part and parcel of human rights law. It should therefore be abolished or at least its definition should be narrowed down and clarified.
The way certain riot cases were tried recently are suspected of contravening the presumption of innocence. The defendants might not have been proven guilty beyond a reasonable doubt. Did the judges concerned not intend to dissuade future protesters with exceedingly heavy penalty? Was the protester-defendants’ contribution to the democracy and freedom of Hong Kong society taken into account in sentencing? Efforts had better be made to rescue righteous people wrongly imprisoned.
Protest and Assembly are Human Rights
HK Public Order Ordinance originated from the 1967 Riot, in which local communists killed and injured numerous innocent citizens. The HK Government then passed the Ordinance to deal with local communists. Certain evil clauses in the Ordinance were abolished in 1995, which were, however, revived by the Provisional Legco in 1997. E.g., in 1995, public assemblies only required prior notice of the Police while they now require a “notification of no objection” from the Police. The offenses of unauthorized assembly and unlawful assembly apparently contravene the right of peaceful assembly as enshrined in International Covenant of Civil and Political Rights.
When three persons or more gather in a public place and cause fear of “breach of peace” , they may be found guilty of unlawful assembly, but “breach of peace” is excessively vague, and thus easily abused by the authorities.
The concept of proportionality is indispensable to human right law. It means that legal measures restricting civilians’ rights must be proportional to the end of public interests and social security. It also means punishment being proportional to crime.
Once the link between a unlawful assembly and “breach of peace” is confirmed, the participants will be found guilty of “riot”, the maximum penalty for which is 10 years in prison! This is excessive and, in recent cases, out of proportion with the alleged acts. Compared with the 1967 Riot, the 2011 London Riot, etc. the 2016 Lunar New Year Mongkok “Riot” is just a minor matter, or a police-civilian conflict.
The 2016 Mongkok police-civilian conflict originated from righteous civilians supporting hawkers in defiance of brutal police officers, and the protesters are meritorious ethically and politically. Likewise, The Sunflower Student Movement is associated with protest against the secretive Cross-Strait Service Trade Agreement. In contrast with HK courts, the Taiwan law court finally acquitted the protesters on the ground that the movement was civil obedience.
Presumption of Innocence
The way several Mongkok riot cases were tried recently are suspected of contravening the principle of presumption of innocence as enshrined in the Universal Declaration of Innocence. E.g., in the Yeung Ka-lun case, the judge Anthony Kwok on 3 April, 2017, found the defendant to be the culprit on the ground that both the defendant and a photo of the culprit had protruding teeth. In another riot case, the Judge Sham on 16 March, 2017, rejected a defendant Sit’s defence that he had only been mere observers at the riot. He said that Sit should not have run away along with the crowd – which could have caused a stampede – if he did not want police to confuse him with a rioter. Yet, by common sense, everybody knows ten persons being chased by a dog have ten different reactions.
Arbitrary Arrests and Prosecutions
“No one shall be subjected to arbitrary arrest, detention” (International Covenant on Civil & Political Rights, Art. 9). Yet, after the Umbrella Revolution, the HK police has kept arbitrarily arresting and charging dissidents.
Example 1: Democratically elected law-makers Baggio Leung and Yau Wai-ching have been charged with unlawful assembly in the Legco, for having tried to force their way into a Legco conference against a number of security guards sent by the Chair of Legco to stop them. At that time, they were not yet disqualified for challenging China during a swearing-in session.
Example 2: Occupy leaders each face public nuisance charges under the Common Law over 2014 Hong Kong protests. The maximum penalty is 7 years in prison, while under the Summary Offences Ordinance, the maximum penalty for nuisances committed in public place (which refer to minor offences like urinating in a public place) is only a fine of HKD500 or three-month imprisonment.
Example 3: Nine Hong Kong activists , including two from Demosisto as well as members of League of Social Democrats and Student Fight for Democracy, were charged with incitement to behave in a disorderly manner in a public place, taking part in an unlawful assembly, etc. in a protest against Basic Law interpretation by Beijing.
The Human Rights Committee had better look into how Hong Kong police and judiciary have been trampling upon human rights and universal values in HK. Public assemblies, protests and demonstrations should only require perfunctorily notifying the police. Either the riot offence should be abolished or its definition narrowed down. The HK courts should strictly comply with the principles of presumption of innocence and reasonable doubt, and sentences must be proportional to corresponding crimes. The HK police must stop arbitrarily arresting dissidents and the HK Government must not try to suppress voices of protesters by judicial harassment. As for innocent people already imprisoned, they should be released as soon as possible by such means as appeal or through international support.
With best regards,
Chapman Chen, Ph.D.（signed）
Facebook page: https://www.facebook.com/drchapmanchen/