The Umbrella Movement 9 to go on trial 19 November on ‘inciting public nuisance’ charges; from left to right: Chu Yiu-ming, Chan Kin-man, Benny Tai, Lee Wing-tat, Shiu Ka-chun, Tanya Chan, Raphael Wong, Tommy Cheung, Eason Chung

Explainer: All you need to know about the Umbrella Movement 9 trial

UM9 is the highest-profile prosecution yet of demonstrators for participating in the Umbrella Movement.

The trial of the Umbrella Movement 9 starts on November 19. They are charged with various counts of “inciting public nuisance” in connection with the beginning of the Umbrella Movement on 28 September 2014. The trial starts four-plus years after the incident in question. The Umbrella Movement 9 weren’t even formally charged until 27 March 2017, two and a half years after the movement ended.

The government is essentially alleging the 9 are the principal “instigators” or “inciters” of the start of the movement, a ridiculous notion to anyone who was there. The 9 include the three leaders of Occupy Central with Love and Peace (Benny Tai Yiu-ting, Chan Kin-man and Chu Yiu-ming) and two leaders of Hong Kong Federation of Students (Tommy Cheung, Eason Chung). Both groups were leaders of the Umbrella Movement but on the night in question, 28 September, actually called on demonstrators to go home for their own safety, fearing the police would resort to live ammunition. Of the other four defendants, two are current members of the Legislative Council (Tanya Chan, Shiu Ka-chun), one is a leader of the League of Social Democrats (Raphael Wong), and one is a former Legco member representing the Democratic Party (Lee Wing-tat).

I’ve written about this case and events related to it in the past. Here is background on their case and the events related to it, as well as on the identities of the nine defendants. It was written on 28 March 2017, the day after the 9 were charged.

There are several important contexts within which the Umbrella Movement 9 trial should be regarded in order to be fully understood.

While these 9 go on trial, there has been no accountability for the eight-hour-long police tear gas attacks on 28 September 2014. The Hong Kong government and police have neither sanctioned an independent commission to investigate the attacks and the events of that night nor have they provided any information regarding the decision-making process that lead to the attacks. Not only are the wrong people being put on trial but the police and government remain entirely opaque and unanswerable. Of course, the gravest injustice of all is that, four years on, the government still remains unelected.

Another important context to the Umbrella Movement 9 trial is that since the movement, the Hong Kong government has brought 46 legal cases against 30 pro-democracy leaders as well as prosecuting hundreds of ordinary activists in a wide-ranging crackdown on the pro-democracy movement.

Most of the prosecutions related to the Umbrella Movement had concluded by February 2017. At that time, at least 220 had been prosecuted and at least 78 convicted. Since then, Joshua Wong, Nathan Law and Alex Chow were convicted in relation to the occupation of Civic Square on 26 September 2014, and 37 demonstrators were convicted in two separate trials for contempt of court. Add the Umbrella Movement 9, and that brings the current total to 266 demonstrators prosecuted and 118 convicted. All of those convictions were for nonviolent crimes except for two for assaulting police officers and three for criminal damage. Not included in the above numbers are eight police officers who have been sentenced to, total, 14 years and three months in prison for assaulting demonstrators. Indeed, those eight are serving more prison time than all Umbrella Movement demonstrators put together. So much for Communist Party and HK government propaganda about the “violent and illegal Occupy movement”.

Lastly, another important context is the nature of the charges. The Umbrella Movement 9 are being charged with variations on the common law crime of “inciting public nuisance”. The three OCLP leaders are charged with the newfangled offense of “inciting others to incite public nuisance”, if you can believe it; the judge could — when it was challenged by the defense in preliminary hearings, the judge allowed the case to go ahead. “Public nuisance” is also a statutory crime in Hong Kong. It is unclear why the government has chosen to charge the Umbrella Movement 9 with the common law as opposed to the statutory offense, though it has been widely pointed out that while statutory public nuisance has a maximum penalty of three months’ imprisonment and a fine of HK$5,000, the common law crime has a maximum penalty of seven years’ imprisonment and a fine. Many believe the government is hoping for very long prison sentences for these “inciters”. Here is an excellent explanation of the legal intricacies of the case. It is also striking that up to now, no one has been charged with any form of “public nuisance” crime related to the Umbrella Movement. So why did the government suddenly decide to charge these 9 with “inciting public nuisance” when no one has even been charged with “public nuisance”?

The common law crime of public nuisance has rarely been prosecuted in Hong Kong. I could not think of a case in living memory, but Dennis Kwok reminds that an expatriate was convicted of common law public nuisance in 2008, the year of the Beijing Olympics, for climbing Tsing Ma Bridge and protesting China’s human rights record. That was Matt Pearce of expatriate HK activist group International Action. He was sentenced to six months in prison, after having been convicted of public nuisance on two previous occasions and receiving first a suspended sentence and, the second time, a 21-day sentence. It’s important to note that he was convicted of “public nuisance” whereas the Umbrella Movement 9 will go on trial for “inciting public nuisance” or “inciting others to incite public nuisance”.

Both Amnesty and Human Rights Watch have called on the HK government to drop the charges, cease all politically motivated prosecutions, and bring the Public Order Ordinance into line with international human rights law and standards to ensure that the rights to freedom of expression and peaceful assembly are fully respected and protected. I wholeheartedly concur.

Timeline of the HK Umbrella Movement, 20 June 2014 to 24 June 2015

Timeline: Milestones of the Hong Kong freedom struggle in the post-Umbrella Movement era, 2014 to 2018

— KTG