On civil disobedience and Alex Chow
As a lawyer, I have to date failed to reconcile some of my more raw emotions with a formal, legalistic training. For example, while my guts told me that paedophilic serial killers like Robert Black deserve death penalty, my legal training told me that sentencing guidelines must be adhered to and life imprisonment is the best we could get.
This uncomfortable tension surfaced again in the case of Alex Chow, who happens to study in the same university as I do and is facing 7 months in jail (Think of the horror! And to think that Saif Gaddafi also once studied in that same university, I guess it takes all sorts to make a diverse campus.)
The background to Chow’s case is the 2014 pro-democracy protests in Hong Kong. Chow is one of the three pro-democracy activists who were found guilty of unlawful assembly for an incident that took place on 26 September 2014. On that day, he, together with other protestors, stormed the Civic Square, an open space right in front of the Central Government Complex. This incident left 10 security guards injured.
In August 2016, Chow was sentenced by a trial magistrate to a suspended sentence of three weeks while the other two activists received a community service order.
The Hong Kong government, however, found the sentences too lenient. They applied to the Court of Appeal to review the sentences, resulting in the Court of Appeal finding errors of law in the trial magistrate’s judgment and passing down harsher sentences against all three activists.
The Court of Appeal judgment caused a huge outcry. It was immediately branded as political persecution, and people started petitions to demand the immediate release of the three activists.
Now this comes back to the uncomfortable tension I often experience. On the one hand, one’s instinctive reaction might be “political persecution!”; on the other hand, the Court of Appeal’s judgment is well substantiated. In this essay, I simply wish to set out in full the arguments that allow the Hong Kong judicial system to arrive at custodial sentences for the activists. A discussion on politics is beyond the purview of this essay.
“The law is the law is the law”
The above grammatical travesty is a quote at the back of my mind that I can’t exactly attribute to anybody. It might be a public law professor who said it, or something I read in a textbook. Just like “Brexit means Brexit”, this quote conveys nothing substantive. It is merely a more emphatic reiteration of the principle of rule of law.
What is the Rule of Law?
It is the principle that a society should be governed by predictable, publicly promulgated rules, rather than by people who happen to hold official positions.
While most people appreciates this textbook definition, few ever consider the deeper implications of the Rule of Law.
The Rule of Law has unsavoury consequences. For example, it probably means that an officer who shot an unarmed black man is not indicted — because the decision not to indict is made pursuant to a set of clearly set out legal procedures in which a grand jury, after hearing more than 60 witnesses and more than 5000 pages of testimony, decided not to indict.
Clearly, the Rule of Law is not a champion for progressive causes. And this has never been shown more clearly in the case of civil disobedience. Civil disobedience is the deliberate breaking of laws as a form of protest against said laws, or against some other rules. Governments (or courts) do not recognise the legitimacy of civil disobedience — political objectives, no matter how noble, cannot excuse the breaking of laws.
Here, the distinction between “motive” and “intent” is crucial. To find someone guilty of murder, a prosecutor has to prove two things:
- The accused’s act (in shooting the victim 50 times) killed the victim.
- The accused’s intent is to kill (if the accused intended the shooting to be prank, falsely believing that the gun did not contain actual bullets, then she did not intend to kill).
An accused may have a noble motive in killing the victim. For example, he might have travelled from the future, and known that the victim would instigate the third world war if not killed.
However, this motive, unless the accused can come up with a contrived legal defence, is quite irrelevant to the accused’s guilt. It did not change the fact that the accused did intend to kill the victim.
Applying the same logic to civil disobedience, and we see clearly that finding someone like Chow guilty is the inevitable consequence of Rule of Law, because simply, his political motive is irrelevant. It does not excuse him from breaking the law.
What matters, for the purpose of finding Chow’s guilt, is that all the elements of crime have been satisfied. This is the conclusion reached by both the trial magistrate and the Court of Appeal judges. It is a finding of fact that should not be disturbed lightly.
Therefore, I will focus on the more interesting issue — the Court of Appeal’s decision to increase the severity of the sentences.
In August 2016, the trial magistrate passed down a three-week sentence against Alex Chow, suspended for one year. This was because he was due to start his one year master’s programme in the UK in September 2016, so it was not really appropriate to sentence him to community service, which, first and foremost, requires his presence in the community.
In hingsight, the trial magistrate was lenient in her sentencing. One of the reasons for her passing down a suspended sentence against Chow and community service against the other two activists was that “they took their actions because of their political beliefs and in light of the social conditions, and not for their own interests, nor for their attempts to hurt others.” She also pointed out that “young people were pure and innocent, did not take into account actual interests, or might be impulsive.”
If I were ever forced into the unfortunate position of this trial magistrate, these would be the words I put in my judgment. The picture painted here is that of three misguided and naive young men from well-off families, who did not really understand “real concerns” on the street, and whose foolishness endangered the proper running of a complex society. But they are young, and have never done anything wrong before, so just let them off with a gentle warning, and hopefully they will come to their senses. Not patronising at all, eh?
This attitude is in stark contrast to that of the Court of Appeal’s (you can find the judgment here, by searching the case number CAAR 4/2016).
First, after citing authorities from both Hong Kong and the UK, the Court of Appeal stated the following as sentencing guidelines in a serious case of unlawful assembly:
“If the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons of committing the offence and the sentencing factor of rehabilitation.”
On this basis, the Court of Appeal considered the non custodial sentences passed by the trial magistrate to be “manifestly inadequate”, and therefore amended the sentence to reflect the important objectives of “punishment” and “deterrence”.
Second, the Court of Appeal adopted a very stern attitude towards the activists’ lack of “genuine remorse”:
“The more one feels about an issue, the more one wishes to press one’s point and the more one desires that there should be progress in the matter. This is all very understandable. However, if in the course of advocating one’s demand, one is given to the position that some long and well established law is but an unreasonable restriction on the right to freedom of expression, plus indulging one in the self-satisfaction of having broken that law as one pleases, that is not a situation which would on any ground enable the courts to pass unduly lenient sentences. An offender who is inflicted with such an attitude not only breaks the law in conduct, but in his mind too he harbours contempt and regards himself as being above the law.”
The Court of Appeal judgment is supported by an impressive line of authorities. I have no intention of contesting the legal merits of such a judgment. It is well written (in Chinese, and then translated into English), well substantiated, and crucially, the conclusion it points to is irresistable.
R v Caird and the Garden House Riot
Perhaps a comparison with a UK case can put this issue in perspective.
One of the most heavily cited cases in the Court of Appeal’s judgme is R v Caird. This case is the legal aftermath of the Garden House Riot in 1970, where a group of Cambridge students protested against the Greek military junta outside Garden House Hotel. Crucially, R v Caird established the principle that holding strong political views (as did the Cambridge students at the time) is not excuse for violent protests.
The rationale behind this, as explained by the Court of Appeal in the case of Chow, is that “in a civilised society where the rule of law prevails, there must exist some lawful ways or means by which people can promote their idea or advocate their cause; hence the pursuit of their idea or cause must not be used as an excuse for resorting to unlawful violence.”
What is the outcome of Rv Caird? Students, no matter how noble their political objectives were, were given custodial sentences. This case had been criticised for its heavy-handed approach, but it remains good law.
Last, some thoughts
The conclusion I draw from the above rambling, and from spending a productive Tuesday night reading judgments of Hong Kong courts is, unfortunately, that the harsher sentences handed down by the Court of Appeal are well within its legal remit.
This is an unfortunate conclusion. Again, it shows that law is no panacea. Perhaps a legislative change, a more open society, and more political discourse are the real answer to the plight of these activists.