Monday, August 28, 2017

HKU Law Faculty Members Comment on the Recent Jailing of Hong Kong Protesters

Julia Hollingsworth and Chris Lau
South China Morning Post
25 August 2017
On the night of September 26, 2014, amid the glare of television cameras and floodlights, student leader Joshua Wong Chi-fung leapt onto a fence around ­government headquarters in ­Admiralty.
     As he curled his spindly legs around the metal bars, the sight of the bespectacled teenager with his floppy mop of hair valiantly trying to scale the three-metre-high barrier, along with fellow ­student leader Alex Chow Yong-kang, galvanised others into ­action...
     Last week, student activists Wong, then 17, Law, then 21, and Chow, then 24, were slapped with jail sentences of six, seven and eight months respectively by an appeal court, after being spared prison by a lower court last year, for their acts that fateful evening.
     The higher sentences sparked a torrent of criticism in the city and abroad that Hong Kong’s ­independent judiciary was now succumbing to a government-led bid to hand out harsher punishments to its young critics...
     The courts’ only “crime” was that it was caught up in a politically charged event, University of Hong Kong legal scholar Simon Young Ngai-man said. “This is natural. You see it in other societies,” he said...
     But University of Hong Kong law scholar Eric Cheung Tat-ming questioned whether the Court of Appeal had gone beyond its scope.
     Under common law, Cheung said, the norm was not for the appellate court to meddle in the factual findings in appeal hearings and “re-cast” the facts. Cheung quoted former Court of Final Appeal judge Henry Litton’s ruling in a case in which he chastised an appeal court judge for “shedding his appellate gown” to take on a fact-finding role...
     His colleague, associate professor Peter Chau, who specialises in criminal law, also argued the sentences were excessive, as the appeal court had taken reference from past English cases when petrol bombs or rocks were hurled, sometimes targeting law enforcement officers...

Cliff Buddle
South China Morning Post
27 August 2017
The jailing of three prominent student leaders involved in Hong Kong’s Occupy protests has sparked a crisis of confidence in the city’s legal system and rule of law...
     University of Hong Kong law professor Simon Young said there should be more transparency in situations where the secretary for justice overrules senior prosecutors. In Canada, he said, there is a legal requirement that public notice be given when the Attorney General takes over control of a prosecution from the DPP. “It tells everyone I am intervening here, I am taking over. That will naturally have possible political implications and can attract the scrutiny of parliament. At least there is transparency. We don’t have that here,” Young added...

Catherine Lai
Hong Kong Free Press
24 August 2017
Hong Kong’s justice secretary has defending the jailing of three democracy activists, slamming claims that it amounted to political persecution...
Law professor Johannes Chan said during a Commercial Radio programme in response to Yuen’s comments that he accepted his explanation for the timing of the review, but Yuen should explain in detail whether the DOJ’s decision to review the sentences were mixed with considerations outside of legal ones – in order to dispel citizen’s concerns.
     In a column on Wednesday, Chan said that the first magistrate’s decision to hand down a lenient sentence, as well as the Court of Appeal’s decision to give a deterrent sentence, were both within the judiciary’s scope of discretion.
    “Even if we don’t agree with the Court of Appeal’s final judgement, it should not influence our belief in the judiciary’s independence,” he wrote...


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