Opinion | 'Occupy Central': Protest leaders pay the price for chaos and confrontation

By Grenville Cross

If ever there was an abject failure after 1997, the so-called "Occupy Central" movement was it. The brainchild of Benny Tai Yiu-ting, Chu Yiu-ming and Chan Kin-man (the trio), it resulted in the physical occupation of much of the Central District from Sept 28, 2014, when it was formally declared, to Dec 15, 2014, when it finally petered out, by which time the trio had already abandoned it. Although it was supposed to be all about civil disobedience, it had an inauspicious prelude when fanatics forcibly invaded the East Wing Forecourt of the Central Government Offices in Admiralty, on Sept 26, in what the Court of Appeal subsequently described as "a large-scale unlawful assembly involving violence", leaving 10 security guards injured.

Although, over many weeks, much of Central was paralyzed, it became clear that, as in 2019-20, the central authorities had no intention of using force to resolve things, as they were confident that the police force could handle the situation. Had Beijing intervened directly, this could have heralded the end of the "one country, two systems" policy, which was the last thing it wanted. While some protesters hoped for an armed intervention, this was never seriously on the cards, although Beijing must have been incensed by outsiders egging the protesters on.

Indeed, in June 2014, when the State Council issued its white paper on Hong Kong, it emphasized that the continued practice of the "one country, two systems" model required that "we proceed from the fundamental objectives of maintaining China's sovereignty, security and development". Sovereignty and security were, therefore, the keys, and the sight of leading "pan-democratic" figures openly courting prominent politicians in foreign capitals earlier that year, and of foreigners openly egging on the street occupiers, would, as in 2019, have incensed Beijing, but it refused to be provoked, although its concerns were wholly justified.

In October 2014, then vice-premier Wang Yang announced that foreign forces were supporting the protesters, and that their purpose was clearly to "organize the so-called 'color revolution'". For his part, the Liaison Office's Zhang Xiaoming added that the protests were similar to color revolutions overseas that sought to overthrow authority. This analysis was borne out by the foreign media, which regularly used the term "umbrella revolution", equating it with violent protests in the Middle East and Eastern Europe that forced governments from power. Once the protesters began calling not only for the reversal of the NPCSC's decision on the 2017 chief executive election mechanism and for public nomination instead, but for the resignation of the chief executive, Leung Chun-ying, they directly challenged Beijing's authority over the city, which was intolerable. They were effectively advocating self-rule for Hong Kong, not a high degree of autonomy, and this was a precursor of the secessionist activity which erupted in 2019.

Intriguingly, those who called the most loudly for more democracy in 2014 were the very people who, in 2003, had contrived to torpedo Tung Chee-hwa's national security legislation. If his proposals on treason, secession, sedition and subversion against the Central People's Government had been implemented, there is little doubt that Beijing would, when it announced its plans for the 2017 election in August 2014, have been more accommodating of local democratic aspirations, and less insistent on the patriotic credentials of the next chief executive. To that extent, therefore, as so often since, the "pan-democrats" shot themselves in the foot, and, once their defiance failed, as was inevitable, the consequences had to be faced.

Public nuisance is a common law offense, punishable with up to seven years' imprisonment and a fine. A person is guilty of public nuisance if he does an act not warranted by law, and the effect is to "endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all". The offense, therefore, was tailor-made for catching the activities of the trio and their confederates.

The evidence assembled by the police revealed that, as early as March 27, 2013, the trio had formulated a campaign aimed at achieving their chosen form of universal suffrage for the election of the chief executive in the election of 2017. To force Beijing's hand, they envisaged the launch of the "Occupy Central" movement, pursuant to which parts of Central would be occupied, or at least obstructed, by large numbers of protesters, albeit for a shorter period than the 79 days which ultimately resulted. Thereafter, they promoted their plan at every opportunity, attracting support from the gullible, the starry-eyed and, of course, the malign. Little did they appreciate that they were creating a monster with a mind of its own, and over which they would quickly lose control.

In the early hours of Sept 28, 2014, the trio belatedly appeared on the main stage of Tim Mei Avenue, with much of Admiralty having already been occupied the previous day, and Tai formally announced that the "Occupy Central" movement had begun. Thereafter, the main arterial roads in Central were paralyzed for weeks on end, in the hope of forcing political changes on the government. As each day passed, however, it became increasingly clear that the trio had little or no control over the events they had engineered, and that extremists were calling the shots. When court orders were issued instructing the occupiers to clear protest sites in Admiralty and Mong Kok, these were ignored, even prompting the Hong Kong Bar Association, not yet the politicized entity it has since become, to condemn what it called "a direct affront to the rule of law". As time went on, violence became an increasingly common feature of the street protests.

On Nov 19, for example, protesters, rallied by internet posts from HKGolden, an anti-China web forum of the time, tried to smash their way into the Legislative Council Complex, repeatedly attacking the police cordon, and leaving three officers in need of hospitalization. Again, on Nov 30, protesters wearing hard hats and goggles descended on Admiralty, hoping to lay siege to the chief executive's office, many carrying shields, some spiked with nails. They charged the police lines with metal barriers and hurled cans, water bottles and eggs at the officers, whom they sprayed with fire extinguishers. This, of course, was not the civil disobedience originally envisaged by the trio, but deliberate hooliganism which was contemptuous of the rule of law, and it provided a foretaste of what was to come in 2019.

Although, as increasingly fanatical elements called the tune, the trio became largely irrelevant, with their entreaties ignored, this did not absolve them of responsibility for the chaos they had unleashed on the city's workforce and the law-abiding public. It was, after all, their baby, although it grew into something so ugly it was barely recognizable. Indeed, at their subsequent trial, Judge Johnny Chan Jong-herng described the offense which Tai had incited as being "very serious, in terms of the number of carriageways obstructed, the duration of the obstruction, the number of participants and the suffering caused to the public".

In June 2019, the nine leaders of the "Occupy Central" movement, also known as the "Umbrella-9", finally faced their day of reckoning, when they appeared for trial in the District Court, on various public nuisance related charges. It may, of course, have been that some of them were happy to have been prosecuted, imagining that this would enable them to claim martyrdom, but, if so, they soon discovered they had bitten off more than they could chew. At what must have been enormous cost, the defendants retained eight senior counsels and 12 junior counsels to represent them, and they argued every possible point under the sun, but all to no avail. After a trial which lasted for 22 days, they were all convicted by Judge Chan who, as the Court of Appeal subsequently noted, conducted the proceedings with "consummate patience, fairness and ability", and was "fully conversant with both the law and the relevant facts".

In Chan, the defendants found themselves before a judge who was clearly determined to remain focused, and not to have the wool pulled over his eyes. While acknowledging that the defendants professed idealism and generated passion, he emphasized that their movement was "also causing excessive inconvenience and suffering to many members of the public". Although they sought to pose as martyrs, the price of this had to be "borne by the ordinary folks", and it was they who had to "travel to work to make a living". In this, Chan was quite correct, and Bank of America Merrill Lynch also estimated that the protests caused a daily loss to the economy of HK$105 million (US$13.5 million), with tourism-related revenue dropping by 10 to 15 percent, and private consumption being hit by 2 percent.

Once he had convicted the defendants, Chan sentenced eight of them to terms of imprisonment, although four of them had their sentences suspended, while another received a community service order. In sentencing, he noted that the public had not received the apology it deserved, and none of the defendants had expressed any regret. The trio each received 16 months' imprisonment, although Chu, who was aged 75 and in poor health, had his sentence suspended for two years. An ex-legislator, Lee Wing-tat, aged 63, was sentenced to eight months' imprisonment, but suspended for two years, because of his good character and the peaceful nature of his offense.

Two serving legislators, Shiu Ka-chun and Tanya Chan Suk-chong, and the League of Social Democrats chairman, Raphael Wong Ho-ming, each received eight months' imprisonment, although Chan's term was suspended for two years on account of ill health. Two former student leaders, Tommy Cheung Sau-yin, 25, and Eason Chung Yiu-wa, 26, were sentenced, respectively, to 200 hours of community service and to eight months' imprisonment, with Chung's sentence suspended for two years.

Although Judge Chan took great care in deciding which sentences were most appropriate, some people complained that his sentences were too low, and they were certainly on the lenient side. In particular, they argued that the terms of imprisonment were too short, that it was wrong to suspend any of them, and that a community service order for Cheung was inappropriate, given the gravity of what occurred. However, after the Department of Justice had reviewed the case, it decided not to challenge the sentences, explaining that there was "insufficient legal basis to suggest the sentences imposed by the judge were manifestly inadequate or wrong in principle". This, however, did not prevent either Tai or Wong from complaining on appeal that their sentences were too severe.

In the Court of Appeal, all nine defendants challenged their convictions, on all manner of grounds. This time, they rolled out six senior counsels and 11 junior counsels to present their over 40 grounds of appeal, but, once again, despite their ingenuity, it was to no avail. Although they complained about the charges lacking legal certainty, containing ambiguities, and being unconstitutional, the three judges gave them short shrift. They cut straight to the heart of the matter, with Justice Andrew Macrae explaining that "we cannot accept the argument that the applicants, having planned the Occupy Central Movement for some 18 months, and having seen how events had unfolded in Tim Mei Avenue, did not knowingly conspire to commit, or incite, a public nuisance".

The Court also dismissed the sentencing appeals of Tai and Wong, noting that, in Tai's case, Judge Chan had, if anything, been over lenient. The judges quoted from a House of Lords judgment in which Lord (Tom) Bingham had said that the essence of the crime of public nuisance is "the suffering of common injury by members of the public by interference with rights enjoyed by them as such" (The Queen v Rimmington, 2006). In other words, if an offender has gravely interfered with the essential rights of others, there will be a price to pay, particularly where many people are affected and the consequences are dire, as where wage earners cannot get to work and earn money to feed their families.

Even with outside support, which was available in abundance, the "Occupy Central" movement could never have succeeded. Its leaders were, at best, dreamers who loved grandstanding, and, at worst, selfish dupes who danced to the tune of foreign powers, and there was never any clear planning. There was, of course, no way that either the central or local governments would ever succumb to blackmail, as the wiser heads amongst them must have known. Electoral reform was only ever achievable once Beijing's confidence had been earned, but, by their antics in 2014, the "pan-democrats" demonstrated that they were irresponsible, untrustworthy, and unsuited to greater democratization. They did great harm to Hong Kong, and their leaders must now pay the price.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.

(Source: China Daily)

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