Lawyers for Hong Kong student activist Joshua Wong Chi-fung on Thursday made a last-ditch attempt to convince a High Court judge not to jail him for defying a court order during the 2014 Occupy protests, only to have him make clear that there were limited alternatives for contempt of court convictions.
However, Mr Justice Andrew Chan Hing-wai delayed sentencing to a later date to allow Wong’s defence counsel to address him again, after a two-hour session where lawyers for Wong and 15 other activists highlighted the mitigating factors in their clients’ cases.
Senior counsel Lawrence Lok Ying-kam had requested that the court seek a probation report for Wong, something that lawyers do to invite the court to consider a non-jail sentence, such as a probation order.
“There are not many options a sentencing court can impose in relation to criminal contempt,” the judge mused.
But some non-custodial sentences, such as a community service order, were clearly not options for a contempt of court conviction, Chan said. He cited the Hong Kong White Book, a document that governs civil court procedures in the city.
The judge said he wondered if a probation or detention centre order would be an option so he asked Lok to further address him on that before requesting the probation report.
“If at the end of the day, it is not an option. What’s the point?” he said.
The 16 defendants, who sat shoulder to shoulder in the jury stand while seven correctional officers watched them from the dock, were among 20 activists previously charged for contempt of court, a common law offence that carries no maximum sentence, with the penalty ranging from a fine to a jail term.
The group included Wong’s friends and fellow young activists Lester Shum and Raphael Wong Ho-ming.
Then aged between 17 and 65, the 20 were arrested after they refused to leave a Mong Kok protest site on November 26, 2014, when bailiffs, acting on a court order, tried to clear the site on Nathan Road.
The sit-in was part of 79 days of road blockades by Hongkongers in the name of civil disobedience to fight for greater democracy.
Court orders to clear streets in the busy district were sought by local taxi and minibus driver groups, who claimed the blockade hurt their livelihood.
Four of the protesters were sentenced on November 28. They were each fined HK$10,000 and given one-month suspended jail terms.
On Thursday, Chan reiterated comments he had made at the earlier sentencing, noting that many of the defendants were relatively young when they were arrested.
Joshua Wong, for instance, was only 18 then. Hong Kong law dictates that no court can sentence defendants aged between 16 and 21 to imprisonment unless there are no other alternatives available.
Lok asked the judge to consider the totality principle in sentencing Wong, since he had already been given a jail term in a separate case.
In advancing mitigation for his clients, Lok noted that the case did not involve any violence nor any incitement to cause others to act violently.
Lok said his other client, student nurse Kwok Yeung-yuk, had written a letter expressing “unreserved apology to the court”, adding his concern that an immediate custodial sentence would affect his career.
“I ask your Lordship to give them a chance,” Lok continued. “They all learned a simple lesson a hard way.”
Another defence counsel, Hector Pun Hei SC, argued that some of the defendants did not have a specific intent to interfere with the administration of justice, a point that the judge did not agree with.
Nor had they inflicted injuries on others or gained practical advantage for themselves, Pun added.
In the case of Raphael Wong, the vice-chairman of the League of Social Democrats, who had originally fought the charge before being found guilty, Pun said that he “cared for the well-being of Hong Kong”.
Raphael Wong had been cooperative with police throughout and his actions were consistent with his fight for justice, Pun said.
He also highlighted the case of Mak Ying-sheung, a journalist in training at the time, who showed “total absence of any intention to challenge authority and the law”.
He said she wrote a letter to the court so touching that he could not bear to read it aloud.
But the judge countered: “Read it for the benefit of the press, so that the public can know how difficult a task a judge is asked to do.”
The Chinese letter suggested Mak was very remorseful and regretful about being at the protest site for 30 minutes that day.
“Because of what happened that day, a reckless me paid a heavy price, things have reached a point of no return,” she wrote. “I never thought of breaking the law, I was affected by a radical and turbulent society ... please give me a chance to turn a new leaf.”
Joshua Wong, now 21, was recently released on bail after spending two months behind bars for a separate offence, pending an appeal hearing on January 16.
The Court of Appeal in August decided to jail him and two other student leaders, Nathan Law Kwun-chung and Alex Chow Yong-kang, after it agreed with prosecutors that a lower court’s decision to give him and Law community service orders and Chow a suspended jail sentence was too lenient.
Their crime was the storming of the government headquarters compound at Tamar in September 2014, which effectively triggered the 79-day occupation of roads by protesters.
Disqualified lawmaker “Long Hair” Leung Kwok-hung, Chow and Law were among a crowd of supporters at the High Court on Thursday, chanting “shame on political prosecution.”
Before entering the court, Shum said: “If this is the challenge set for us by the authorities, this is what we inevitably have to face.”
He added that he did not regret taking part in the protest and was “honoured” to be part of it. He said he hoped he and his fellow activists would come away from this episode stronger.
The 16 activists awaiting sentencing for their contempt of court conviction are:
Jason Szeto Tsz Long
Joshua Wong Chi-fung
Raphael Wong Ho-ming