If Hong Kong's 2014 Umbrella-Occupy democracy movement had not registered so great an impact, and the protest over re-sentencing three young leaders had not reverberated both here and elsewhere in the wider world, would the powers have been moved to reconsider the re-sentencing of Joshua Wong (黃之鋒), Nathan Law (羅冠聰), and Alex Chow (周永康).

The question will likely remain forever unanswered, but it should be asked all the same.?

Would the political and legal decision-makers have felt obliged to acknowledge that the re-sentencing, which ultimately sent the three to jail, was not only unnecessary but widely perceived as unjust retroactive political punishment and therefore counterproductive?


Credit: AP Photo / Vincent Yu

Hong Kong's Court of Final Appeal Building.

In any case, given their defensive protestations, the international tagline "Hong Kong's first political prisoners" evidently did not sit well with those decision-makers. It also seems to have encouraged them to rethink and retract. And in reconsidering the case of the three young Occupy "sparks," as they are known here, the authorities have perhaps begun to realize that it is possible to defend Hong Kong's autonomy and respect Beijing's authority all at the same time. The case provides an important lesson in managing Beijing's original pre-1997 promises about autonomy for Hong Kong within the evolving post-1997 "one-country, two-systems" project.

The 'three sparks' case: sentencing and re-sentencing

The Hong Kong government had been trying to punish the three young men since 2016 when the first judgements in the case were handed down by a sympathetic judge. She cited their youthful idealism and sentenced them to community service plus a suspended jail term in one case. Their offenses were unlawful assembly – which means a public gathering held without police permission – and inciting others to join such a gathering.

The specific act that elicited this charge was an attempt to encourage a crowd of students to break into a recently closed and fenced-off compound known as Civic Square on Sept. 26, 2014. The space is adjacent to Hong Kong's main government offices and the Legislative Council complex. Permission to hold a rally there had been denied, but a few students climbed over the fence and managed to enter the square where they remained overnight. Several protesters were arrested. Ten security guards suffered minor injuries in scuffles that ensued.

The three were then student leaders and their attempt to reopen the square for public use came on Friday night, at the end of a week-long city-wide classroom boycott. Students had been protesting Beijing's refusal to allow long-promised genuine universal suffrage elections for Hong Kong's Chief Executive and tensions were running high. The fenced-off square at government headquarters symbolized Beijing's blockade of Hong Kong's aspirations for electoral reform.

The students' arrest on Sept. 26-27 and their call for more supporters to gather outside the square – which thousands did "to protect our students" – provoked the police tear-gas response that precipitated Hong Kong's 79-day street blockades from Sept. 28 to mid-December. As the significance of those events grew, Wong, Law, and Chow, who led the altercation at the square, were dubbed the "sparks" that had ignited Hong Kong's Umbrella-Occupy Revolution.

Their first trial was held in July 2016, and the sentences were handed down by the sympathetic judge in August. The government then challenged the light sentences, but the same judge rejected the government's request for a review and confirmed her original sentences in September.

That might have been the end of it had the oath-taking saga not begun in October when the first group of post-Occupy legislators was sworn into the Legislative Council. Many of them embellished their oaths with protest slogans. One even dared to declare that "Hong Kong is NOT China." Beijing sprang immediately into action, to defend what was officially interpreted as a threat to its sovereign right to rule a unified China of which Hong Kong is an inalienable part.

The National People's Congress Standing Committee issued its Interpretation of Hong Kong's Basic Law Article 104 on oath taking in November. Beijing officials used the occasion to blast Hong Kong judges for molly-coddling Hong Kong protesters. Whereupon sentences in unlawful assembly cases became noticeably more severe although there was no public announcement about stricter sentencing guidelines. In this changed environment, the government again challenged the original light sentences, and this time a three-judge appeal court panel gave government prosecutors what they wanted.

The three young men were re-sentenced for the same offenses, given prison terms of six to eight months, and sent directly to jail on Aug. 17, 2017. Homilies from the bench were stern and unforgiving. To disrupt public order in the name of free expression will lead to chaos, they said. The defendants were not convicted for exercising their rights and freedoms but because they broke the law. They gained forcible entry to a place they had no right by law to be and they incited others to follow them. The accused felt good about breaking the law and therefore despise it in spirit. The court owes them no leniency.

At that point, the case made international headlines but the one that seemed to rile Beijing and Hong Kong officials the most was "Hong Kong's first political prisoners."

Official statements afterward kept reminding the critics that re-sentencing for the same offense was not double jeopardy, that Hong Kong's judiciary had a long tradition of fierce independence and that everything had been done by the book according to Hong Kong law.

But officials did not respond to the accusation that with jail terms exceeding three months, three of Hong Kong's most promising young political talents would be unable to qualify for their cherished goal of contesting Legislative Council elections until a full five years had passed.

As it happened, Nathan Law was one of the new post-Occupy generation of candidates who won a council seat in September 2016. He was then among those selectively targeted by the government and retroactively disqualified because they had embellished their oaths in what was deemed an improper manner after Beijing's November 2016 Interpretation of Basic Law Article 104 on oath-taking.

Even worse for Nathan Law, he is also a member along with Joshua Wong of the new political party, Demosisto. They had wanted another part member, Agnes Chow (周庭), to contest the coming special by-election for Law's empty Hong Kong Island seat. But she has just been officially disqualified as a candidate because their party advocates self-determination.

Beijing regards self-determination to be a subversive challenge to its overarching authority – the same as independence. Similarly, Hong Kong's election officials have chosen not to distinguish between those who advocate an independent Hong Kong, which deliberately does challenge Beijing's sovereign authority, and others deliberately calling for self-determination because they have no wish to pursue that challenge.

The Court of Final Appeal

Ultimately, however, Hong Kong's judiciary relented … but not before the three convicted sparks had gained some first-hand experience about the indignities of prison life. They were granted bail in late October and regained their freedom pending the verdict of a last-chance hearing by Hong Kong's Court of Final Appeal.

Evidently decisions were made in high places – we know not where, because this time a five-judge panel considered the same facts – overturned the stern August 2017 re-sentencing verdict and restored the original August 2016 sentences. Since these had already been served, the three young men walked free from court on Feb. 6, 2018. Officials hailed the new verdict as proof that Hong Kong's judiciary was indeed independent.

The court's final judgement is worth noting. It began by acknowledging that the re-sentencing convictions of the three appellants had provoked an intense and heated public reaction. This followed in turn from the 2014 electoral reform debate, which the court emphasized it must not address. Legal questions were another matter.

The five-judge panel endorsed the stern August 2017 re-sentencing judgement, but only in that it was intended to "provide guidance" regarding future sentences for unlawful assemblies. Noted the new final judgement, "we specially draw attention to the importance of taking a much stricter view where disorder or violence is involved."

That said, the final judgement concluded that the government's application for a re-sentencing review should have been rejected. In particular, the new stricter standards should not have been applied retroactively during resentencing in August 2017, since they were not yet in effect when the original sentence was handed down a year earlier. The final judgement did not, however, note that Beijing's November 2016 blast against molly-coddling Hong Kong judges intervened and might have inspired the new stricter sentencing guidelines.

The final judgement nevertheless went on to endorse the original August 2016 lenient sentences noting the care the magistrate had taken to ensure that they conformed to standards existing at that time for such offenses, committed in the name of civil disobedience. The mitigating factors cited then included especially the defendants' young age – Joshua Wong was only 17 in 2014 – plus, their stable family backgrounds and academic standing. They were not, in other words, young hooligans bent on smashing up store fronts. Also, in proper mitigation were their idealistic motivations, the low level of violence that had ensued because of their actions, and the remorse they subsequently expressed for the disorder their actions caused.

Front-line interface

No hint of the larger one-country, two-systems context appeared in the detailed, clearly worded, copiously footnoted 67-page judgement. But the erratic route the case followed on its journey through the appeals process is testimony to the front-line role Hong Kong's judiciary is being obliged to play at the interface between the two systems. Decisions must be made somewhere along the line between what Beijing is constantly letting everyone know it wants, and what the Hong Kong system is able to resist.

These candidate disqualification decisions were based on Beijing's equation of independence advocates with those calling for self-determination.

The judges ultimately pushed back in this case. But the question remains as to whether they would have been so inclined without the intense public reaction, which they acknowledged. Currently two other serious interface cases are pending. Both have produced the same intense local reaction but much less elsewhere.

One case concerns the selective and retroactive disqualification of six elected Legislative Councilors caught up in the oath-taking saga following Beijing's Basic Law Interpretation.

The other case is the disqualification of election candidates by Hong Kong election officials acting with Hong Kong legal advice. These candidate disqualification decisions were based on Beijing's equation of independence advocates with those calling for self-determination. The latter essentially reflect Hong Kong's original post-colonial political mandate, authorized by Beijing, as a "high degree of autonomy."

As for the oath-taking saga, it remains to be seen whether Hong Kong's judiciary will be able to find an escape from the "retrospectivity trap" it laid for itself with its repeated rulings that when Beijing issues an Interpretation of Hong Kong's Basic Law, it is "what the law has always been" dating back to Day One, July 1, 1997, when the British left and Hong Kong returned to Chinese rule.

Meanwhile, the political and legal details of the distinctions that can be drawn between independence and self-determination should provide ample scope for legal minds to explore and ponder. Where there's a will, there are also usually legal arguments to defend it.

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Editor: TNL staff