Tuesday, November 11, 2014

Prosecution response to Occupy Central?

As of 3 November 2014, 324 persons were arrested by the Hong Kong police in connection with the "Occupy Central" protests which began at the end of September 2014.  In theory, thousands may be liable to prosecution for offences that have resulted from the illegal occupation of roads and the altercations arising from such occupation.  What approach should the Department of Justice (DOJ) adopt to potential prosecutions flowing from Occupy Central?  
     As police internal guidelines specify that DOJ's advice should be obtained before charges are laid in public order matters, the DOJ plays a central role in deciding the appropriate criminal justice response.  Its task will not be easy.  Already, pro-establishment legislators are asking the Secretary for Justice how prosecutions will be handled.  But even before Occupy Central, there was public concern that a stricter approach was being adopted given the rise in the number of public order prosecutions in 2011.  
    Above all, the DOJ needs to be, and appear to be, apolitical.  This lies at the heart of Article 63 of the Basic Law, which refers to the DOJ controlling criminal prosecutions "free from any interference".  The Secretary for Justice has repeated in public statements that, "All prosecution decisions are made in accordance with the law, the Prosecution Code and the evidence, totally free from any political, media or public pressure".  For this reason the Secretary should consider withdrawing from Occupy-related prosecution decisions because his role on the political reform Task Force may be seen as being too close to the subject matter of the protests.  Delegation of authority by the Secretary to the Director of Public Prosecutions (DPP) to "avoid any public perception of bias or partiality in the handing of the case" is an established practice in the DOJ and was last done in relation to a corruption complaint made against the Chief Executive in October 2014.  
     An appropriate prosecutorial response is needed to help reaffirm the rule of law and restore people's confidence in the legal system. An appropriate response, however, does not mean that everyone who may have committed an offence should be prosecuted, nor does it mean that a particularly harsh or soft approach should be adopted.  It simply means that the usual prosecutorial policies and practices should be adopted in accordance with the law.  The law, of course, does not specify who should or should not be prosecuted as that is a matter for prosecutorial discretion.  The DOJ's 2013 Prosecution Code repeats the established two-part test for deciding when to proceed and continue with a prosecution: (1) "whether the evidence demonstrates a reasonable prospect of conviction"; and (2) "the general public interest must require that the prosecution be conducted" ([5.3] & [5.5]).  Of the fourteen non-exhaustive public interest considerations listed in the Code, the last one is noteworthy: "(n) the availability and efficacy of alternatives to prosecution, such as a caution, warning or other acceptable form of diversion".  
     In the past few years, the DOJ has adopted a diversionary approach to public order cases.  Only serious cases warrant prosecution.  In the Prosecutions Division Yearly Review 2011, the DPP explained the DOJ's approach to public order cases:
Our fundamental rights and freedoms are important to all of us.  However, we live as a community and it is equally important that we respect the rights and freedoms of others as we go about our lives.  In recent times, the number of public demonstrations has significantly increased, and this reflects well on our society both for its respect for fundamental rights and freedoms and for its tolerance and understanding.  Unfortunately, some people on these occasions have gone beyond what is reasonable, and prosecution action has been taken against them.  It is important to appreciate that the fundamental right involved is a right to a lawful and peaceful demonstration and that the authorities have a positive duty to facilitate the proper exercise of it.  As prosecutors we always keep this in mind and we prosecute only when people seriously cross the line and behave in an unlawful manner.
I have taken a more active role in ensuring that first-time offenders are treated with an appropriate measure of compassion in order to steer them away from crime and not into it.  These cases are sometimes difficult, and require care and consideration, but are well worth it from the community's point of view.  Giving a person a second chance by not seeking a conviction in appropriate cases can have a significant and salutary effect.  Often people do not appreciate that when we agree to bind over a person, we are not totally letting him or her off.  The person still has to admit the facts of the case and his or her wrongdoing in open court and give an undertaking to the court to be of good behaviour or to keep the peace for a specified period.  The public interest is well served by this approach in appropriate cases. (emphasis added, p. 7)
The same message was contained in the 2012 Yearly Review where the benefits of diversion were emphasised:
When someone has been given a second chance in this way we notice that they rarely offend again.  It does work and we see people being steered away from crime and not into it.  A criminal conviction can brand a person for life and with young offenders that can break their spirit, ruin their career and send them down the wrong path; with elderly offenders who have lived a hitherto blameless life it can bring a disproportionate level of shame and anxiety.  Each case deserves our thoughtful consideration and understanding and, in appropriate cases, justice is served by not seeking a criminal conviction. (p. 7)
In addition to using binding over (where charges are laid and later withdrawn) to resolve cases, the DOJ has also used written warnings to divert cases from entering the system.  
     Given its importance, specific attention was paid to public order cases in the DOJ's 2013 Code.  The Code acknowledges that offences allegedly committed in conjunction with the exercise of the "freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration" (Basic Law, Article 27; Hong Kong Bill of Rights, Articles 16 to 18) "may give rise to special considerations" ([19.2]):
19.3  Criminal prosecutions should only be pursued when the relevant conduct exceeds sensible proportions or the bounds of reasonableness (Yeung May-wan v HKSAR (2005) 8 HKCFAR 137).  Cases in relation to public order events require the striking of a balance between the interest of society in maintaining public order and the right of a person lawfully and peacefully to exercise his or her rights.
This approach of restraint and diversion appears to have been consistently applied.  From September 2013 to June 2014, there were 5,529 public order events and, as of 8 September 2014, only 16 protesters were prosecuted.   
     The question remains whether the existing approach to public order cases needs to be modified when, unlike past protests, prolonged civil disobedience takes place causing great disruption to public transportation and violent collateral offending.  My view is that the same approach can be applied to the circumstances of Occupy Central.  Alternative measures and diversion should be available to those who protested in a non-violent manner (whatever their cause), even if they may have been involved in minor scuffles and committed offences no serious than assault, criminal damage to property, public obstruction, disorderly behaviour, unauthorized assembly or unlawful assembly.  Where unjustified injury has been inflicted on a person,  serious damage has been caused to property or criminal contempt of court has been committed, prosecution should be considered in accordance with the two-part test.  Three important considerations that bear on the public interest assessment should be highlighted.
      First, it is recognised that an offence motivated by civil disobedience reflects a lesser degree of moral culpability than would otherwise be the case (see items (b) and (f) of public interest considerations at [5.9] of the Code).  In MacMillan Bloedel Ltd v Brown (1994) 88 CCC (3d) 148 at [126] (BCCA), it was said that,
 Acting in accordance with the principle of civil disobedience is not a defence in law. But surely it must be a relevant factor in assessing moral culpability for the offences. It will not always be a mitigating factor. Particularly in the case of repeat offenders, it may be an aggravating factor. But the fact that the act is motivated, not by self-interest, but by a desire on the part of the offenders to promote their perception of the public good, however inappropriately insistent, must affect the assessment of moral culpability. (emphasis added)
In referring to the acts of civil disobedience in R v Jones [2007] 1 AC 136 at [89] (HL), Lord Hoffmann wrote,
The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account. The conditional discharges ordered by the magistrates in the cases which came before them exemplifies their sensitivity to these conventions. (emphasis added)
The British Columbia's Crown Counsel Policy Manual (2 October 2009) recognises that the use of criminal sanctions in respect of acts of civil disobedience "may not always be in the public interest".  Similarly, the Australian Commonwealth DPP's former guidelines on civil disobedience prosecutions (issued in 1986 and reissued in 1991) noted,
History shows that to prosecute people for relatively minor offences that arise from the expression of strongly held moral convictions or ideological beliefs may be fruitless.  Indeed, such action may well result in endemic bitterness and the "martyrdom" of those prosecuted.
     Second, "the public interest may be served by not prosecuting a suspect who has made admissions, demonstrated remorse, compensated a victim..." (item (h) of [5.9] of the Code).  Many Occupy Central organisers and participants have publicly stated that they accept the legal consequences of their actions and will surrender and co-operate with the authorities at the appropriate time.  Such conduct will be seen as highly mitigating.  As for compensation, the "victim" here is clearly the community as a whole.  The DOJ may wish to consider unique but meaningful forms of diversion that require candidates to perform a fixed number of voluntary hours of community service before diversion is granted.  Giving something back to the community, whether that be, for example, cleaning roads, serving as crosswalk attendants or assisting the elderly, will help to further much needed reconciliation and restorative justice.  Even if a prosecution goes ahead, courts may upon conviction consider imposing a community service order in lieu of imprisonment.
     Third, given that some of the participants are less than 18 years of age, it is necessary to bear in mind relevant treaty obligations under the UN Convention on the Rights of the Child (CRC) (Articles 1 to 3, 40), which are reflected in domestic provisions including section 109A of the Criminal Procedure Ordinance (Cap. 221) and sections 11 and 15 of the Juvenile Offenders Ordinance (Cap. 226) (see item (j) in [5.9] of the Code).  In the UN Committee on the Rights of the Child's General Comment on children's rights in juvenile justice, it is stated,
25. In the opinion of the Committee, the obligation of States parties to promote measures for dealing with children in conflict with the law without resorting to judicial proceedings applies, but is certainly not limited to children who commit minor offences, such as shoplifting or other property offences with limited damage, and first-time child offenders. Statistics in many States parties indicate that a large part, and often the majority, of offences committed by children fall into these categories. It is in line with the principles set out in article 40 (1) of CRC to deal with all such cases without resorting to criminal law procedures in court. In addition to avoiding stigmatization, this approach has good results for children and is in the interests of public safety, and has proven to be more cost-effective.

26. States parties should take measures for dealing with children in conflict with the law without resorting to judicial proceedings as an integral part of their juvenile justice system, and ensure that children’s human rights and legal safeguards are thereby fully respected and protected (art. 40 (3) (b)).
     By following its established approach to public order cases, the DOJ will help to ensure that only those cases most deserving of prosecution will consume our precious and limited judicial resources.  Written by Simon N.M. Young.  A condensed version of this post was published in the South China Morning Post on 11 November 2014.  For a Chinese translation of this post, click here.

1 comment:

  1. Translation by Ms Jackie Lai (HKU law student)

    就佔領行動行使檢控權力的考量

    律政署的決定應該是非政治的,並應被大眾視作如此。律政司司長就曾多次強調所有檢椌決定應該按法律、檢椌守則和證據決定,完全不受政治、媒體或公眾壓力左右。因此,由於律政司司長本人為政制改革工作小組的成員,基於其角色與示威的主題太接近,應考慮不參與有關佔領行動的檢控決定。

    適度的檢控回應對於重新確認法治和重建市民對法制的信心是重要的,但這並不代表每一個可能犯了法例的人都應被檢控,又或者採用太嚴厲或太寬鬆的做法。正確的做法是根據慣有的檢控政策和處理方法進行檢控。法律當然沒有列明誰應該或不應該被檢控 – 這從來都是檢控官行使權力的範圍。

    檢控守則中為檢控的決定制定了兩個條件: (1)證據須顯示被告人有合理機會達致定罪; (2) 檢控符合公眾利益。在守則中列出14個決定公眾利益的考慮因素中,應注意最後一項:”檢控以外的其他可行方法(例如警誡、警告或其他可接受的處理辦法)及這些方法的成效”。

    在最近數年,律政署對於公眾秩序的案件採用了較不同的處理手法 -- 只在案情嚴重才會檢控。在2011年及2012年的年度檢控報告中就曾提及 “作為檢控官,我們應緊記我們只對嚴重違反界限和非法的行為作出檢控”、”首次犯案者應在處理上予以適度的同情...市民經常對我們同意以守行為方式處理某些案件有保留....但在適合旳案件採用這個處理方式是合符公眾利益的。在撰寫2013年的檢控守則時,也特別註明公共秩序案件的處理手法:”刑事檢控應在相關行為超越明智的比例或合理限度時才用。這些案件需要在維護公共秩序和個人合法和平地行使其權力中取得平衡。”

    問題是現存對待公眾秩序案件的固有模式,應否因應是次長時間公民抗命帶來擾亂公共交通、衍生周邊暴力違法行為的非一般示威情況,作出修訂。我個人認為,是次佔領運動是檢控應沿用現行的檢控政策。使用非暴力行為的示威者應可像以往案件般,使用檢控以外的其他可行方法。

    在衡量公眾利益時,有3點因素是得注意的:

    一、 建基於公民抗命的犯罪意圖比一般性犯罪有較輕的道德罪責。

    在1994年麥克米蘭有限公司訴布朗一案中就指出 “若該(犯罪)行為的動機,不是因為自身利益,而是罪犯一方希望促進公眾利益,縱使這份堅持有多麼不適當,也一定會影響在道德罪責上的評估。在2007年公訴瓊斯一案中,法官也表示 “警察和檢察官表現克制,裁判官在量刑時亦考慮到示威者的動機為良性。裁判官最後作出有條件釋放的命令體現了他們對這些考量因素的敏感度”

    英國哥倫比亞省的檢察官手冊(2009)中承認,運用刑事制裁公民抗命行為 “可能並不一定符合公眾利益”。同樣,澳洲檢控部門有關起訴公民抗命的前指導守則中(在1986年頒布並於1991年重新發布)亦表明,”歷史說明,起訴因持有強烈的道德信念或思想信仰犯下相對輕微的罪行的人可能是徒勞的。事實上,這樣的檢控可能會特有的辛酸和那些被起訴者的“殉難”。

    二、 ”如疑犯作出承認、表現悔意、已補償受害者及/或在檢控他人的程序中與當局合作,則不檢控疑犯也可符合公眾利益” (檢控守則 5.9)。

    許多佔中的不少佔中的組織及參與者均表示會在適當時候自首,這些行為均是很好的減刑理由,由於受害者為社會作為一個整體,律政處可能希望考慮其他可行方法,包括要求被考慮的人選進行某時數的社會服務以令取得檢控以外的處理辦法。即使最後決定進行檢控,法庭在定罪後也判處社會服務令而非監禁。

    三、 鑑於部份參與者為18歲以下,律政署有需要考慮在聯合國兒童權利公約(CRC)下的相關責任。這些責任亦反映在本港刑事訴訟程序條例(第109A條)和少年犯條例第11及15條中。

    聯合國人權委員會就兒童權利的少年犯議題就指出 “締約國關於處理時違法兒童盡量不訴諸司法程序的措施,不應限干犯輕微罪行或首次犯罪的少年犯 ....除了為了避免社會上的歧視,這種做法對孩子有良好的效果,符合公眾安全的利益,並已被證明更具成本效益。”、”締約國應採取措施,使在處理違法少年時不訴諸司法程序成為他們少年司法制度的一個主要組成部分,並確保兒童的人權和法律保障得到充分尊重和保護”。

    (本文為香港大學法學院楊艾文教授文章的中文撮要。英文全文請見:http://researchblog.law.hku.hk/2014/11/prosecution-response-to-occupy-central.html)

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