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dissident voices, the Hong Kong Communist Government has been arbitrarily arresting and prosecuting people by way of outdated clauses in Hong Kong Public Order Ordinance.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, to which the international community should pay close attention.
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 The riot charge is also outdated, its definition vague, and its maximum penalty too heavy, contradicting the notion of proportionality which is part and parcel of human rights law.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.
Is the way certain riot cases were tried recently in contravention of the presumption of innocence? Were the defendants really proven guilty beyond a reasonable doubt? Did the judges concerned 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 help righteous people wrongly imprisoned and their families.
Protest and Assembly are Human Rights
Hong Kong Public Order Ordinance originated from the 1967 Riot, in which local communists killed and injured numerous innocent citizens. The Hong Kong Government then passed the Ordinance to deal with local communists. For instance, public assemblies were required to apply for permission from the police, or else the participants would be guilty of unauthorized assembly. In 1995, the Legislative Council amended the Public Order Ordinance such that organizers of public assemblies only had to notify the Police in advance. In 1997, however, the Provisional Legco, in order to crack down on activists fighting for democracy and freedom, revived evil and outdated clauses in the Ordinance, such that public assemblies now require a “notification of no objection” from the Commissioner of Police. The offenses of unauthorized assembly and unlawful assembly apparently contravene the rights to freedom of expression and assembly as enshrined in the Universal Declaration of Human 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 general, and therefore easily abused by the authorities.
Riot Offence in the Ordinance is Outdated and its Penalty Out of Proportion
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!
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.
The riot offence in Public Order Ordinance is exaggerative; its maximum penalty exceeds the offence description, and recent sentences in such cases in Hong Kong are out of proportion with the alleged acts. Compared with the 1967 Riot, the 2011 London Riot, and the 1992 Los Angeles Riots, 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 brutalizing police officers, and the protesters are meritorious in morality, politics and history. Likewise, The Sunflower Student Movement is associated with protest against the secretive passing of the secretive Cross-Strait Service Trade Agreement. In contrast with HongKong 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 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 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” (Universal Declaration of Human Rights, Article 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 International community had better pay close attention to how Hong Kong police and judiciary have been trampling upon human rights and universal values in Hong Kong. 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.
The Chinese version of this article can be found in ＜曾焯文：拯救無辜停濫捕，廢除惡法維人權＞