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  (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  1 AC 136 at  (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.