Au Nok-hin - Convicted of assaulting a police officer with a megaphone  [Interview]

About 10 years ago, the saying “the law sucks for the poor” was already circulating in the Hong Kong netizen community.  With differences in social status and resources, Themis, the goddess of divine law, acts erratically. These days, “the rule of law in Hong Kong is dead. It has long been a dead body.” This saying is also entering into politics. When national interest presents itself in court, can the ability to afford a lawyer fix the problem? Is the rule of law dead? Au Nok-hin answered, “I will not give you an answer directly but will use my assault case to illustrate.”

The use of a megaphone becomes an assault case

In the early hours of 8 July 2019, Anti-Extradition Law Amendment Bill (Anti-ELAB) protests were widespread. When dispersing the crowds, the police knocked down a female reporter. Lawmaker Au Nok-hin stepped forward trying to mediate but was charged for assaulting a police officer by speaking through a megaphone and obstructing a police officer from executing his duties. The latter charge was subsequently dropped. The “injured” police officer said that the loud sound of the megaphone had temporarily affected his hearing and he was frightened. Au was convicted of common assault at the Kowloon City Magistrates' Courts on 20 April 2020 and was sentenced to 140 hours of community service.

Au’s case has been presented from different angles by different media outlets and he is concerned about that. “Pro-democracy media would look at this as a joke. This is of course not at all a joke to me. Speaking through a megaphone being an act of assault is in fact as absurd as a woman convicted of assaulting a police officer with her breasts. What I find the most important is that throughout the trial, there were many disturbing undertakings in the judicial process. It is difficult to summarise the contexts in a few words and I will talk about these in detail later.”

"I would describe the pro-China media as militant. They are very disciplined, consistent in their stance. They said that the sentence was inadequate, urging the Secretary for Justice to appeal for a more severe sentence. Hence, I have a broader concern about the rule of law. Both parties have 14 days to consider filing an appeal. Whether the Department of Justice (DoJ) will pursue it further is one thing, it is still crazy for the DoJ to bring over 7,000 arrestees to court which is good for the DoJ as these are all “trial cases” and the DoJ has nothing to lose. If convicted, these rulings will become precendent giving the courts more ammunition to convict and sentence the other arrestees. To the regime, they do not have enough convicted cases under the Public Order Ordinance to support their rulings. The building up of cases paves a clearer pathway for them to charge the arrestees. If the DoJ thinks that there are not enough cases, it can raise an appeal pushing the criteria for conviction and sentencing closer to what the regime wants. Take the arrest of district councilor Cheng Lai-king as an example. She was arrested for breaching an injunction to protect identities of police officers by sharing a Facebook post which contains information of a police officer. A trend has been set. First, pro-China media will publish a story, then the government will arrest and then the judicial system will take over.”

On his hearing of a serious stabbing offence at a pro-democracy Lennon Wall in Tseung Kwan O, Magistrate Kwok Wai-kin criticised extensively the Anti-ELAB movement in the verdict. In addition, he praised the defendant for "showing noble qualities" and passed a reduced sentence.  This has sparked huge controversies. 

The trials show the devil is in the details

The devil is in the details. On the surface, Hong Kong adheres to Common Law and has an independent judicial system. To outsiders and foreign countries, all seem to be fine. “There is no way of knowing whether there is rule of law in Hong Kong without going through the judicial process,” said Au. 

First, a look at the precedent cases.

"At the trial, my lawyer told me: there are two convicted cases in which the defendants were jailed for ‘assaulting a police officer by sound’.  One is the Leung Chun-wai Sunny [2004] case and the other is the Ki Chun-kei [2013] case. Ki was jailed for a few weeks for assaulting a police officer by whistling. At the time, Cheung Tat-ming Eric, a professor in law, published a long article pointing out that it was dangerous to establish a case of assault on a police officer by the use of sound. How can it be proven? Martin Lee was the barrister representing Sunny Leung and the judge for the case was Barnabus Fung. If it could be established that sound can be used to assault a police officer, then do all ambient sounds count as well? Lee’s concern at that time was well justified.” 

Then, there are the prosecutors.

"Superficially, procedures are followed but in reality they are not. The DoJ will tell you they are impartial in choosing the applicable laws for the charges, the applicable principles and in the appointment of the prosecutor. Prosecution procedures will be followed as well. However, in my case, I found that in court, political oration prevailed over prosecution details. For instance, there was such mention that if people like me could not be stopped from attacking the police, the riots would not stop. The political comments on the Facebook page of my prosecutor (Vivien Man-wai Chan) are of course crazy. Many take her as a joke and criticise her. However, my bigger question is, why did the DoJ appoint this particular prosecutor?”  Was she specifically assigned? "The DoJ has its own Court Prosecutors. However, for my trial, the DoJ assigned an outsourced prosecutor. Now that this prosecutor is so problematic, will the Secretary for Justice who appointed her be held accountable?"

After that, look at how the court arbitrarily interprets the evidence.

"Despite what the DoJ has done, theoretically the court in any case should be the gatekeeper. I have been using my rights conferred under the laws such as the right to silence, the benefit of the doubt by proving that there are doubts in my case and as such reasonable doubt cannot be 100% removed to pass a guilty verdict. However, all these rights were arbitrarily twisted in the process. For instance, under the Hong Kong law, to find a defendant guilty of ‘assault’, there has to be proof that the victim was scared at the scene. On that day, the concerned police officer did not mention in his statement that he was scared. The charge was that I hit his shield with the megaphone. He did not say he was scared and the video also did not show that he was scared either. However, that police officer changed his statement before the trial saying that he was scared. In the video, he did not move at all and the magistrate construed that the police officer was ‘frozen’ in fear.  The magistrate also unilaterally interpreted my behaviour as ‘insisting to argue with the police despite knowing that argument would not work’, completely ignoring that my original intention was to save that journalist. In summary, all these were done to present a case that favours the police.”

"The police officer claimed that he was injured and he got a medical report afterwards to prove that he had a temporary loss of hearing. However, that was not an expert report. The police officer also could not prove that between the incident and the time he had his injury examined whether there were no other factors contributing to the state of his health. A causal relationship between me using a megaphone and his alleged temporary hearing problem could not be established. Afterall, at the scene many other people were using megaphones, including the police themselves. Lo Kin-hei (Vice-Chairman of the Democratic Party) in his letter of support stated that he was close by and could not hear what I said via the megaphone on low battery. Nevertheless the defendant, which was me, did not have the benefit of these doubts.”

"At the trial, the case of Wong Yuk-man hurling glass at Leung Chun-ying was mentioned in which the conviction was overturned. One of the reasons was that Leung was very calm and was not frightened at that time.  By the same token, the police officer also did not show any fear. Regardless of this, I was convicted of assault. It is extremely easy to charge a person for assaulting a police officer and the threshold to charge is low. To ‘safeguard the legitimacy of the police in enforcing the law’, sometimes there is no threshold at all.  From appointing a prosecutor to the presentation of statements, double standards were applied. Notwithstanding that the procedures have been followed apparently, the result can still be manipulated.”

The rule of law is dead. We need to find out how it died and Au experienced it. On the day of conviction, Au indicated that he would appeal, not against the sentence but the conviction.  

"The fight will go on. I have no confidence in the rule of law, but we, the society and population, have no choice. After all, I have to seek justice in the remaining avenues of the process. In the past, we regard the rule of law as sacrosanct.  Rule of law is the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws. However, if the litigation is the regime against an individual, the individual will be disadvantaged. In western countries, the rule of law limits the authority of the ruling power to safeguard the rights of the people. Seemingly this is not the case in Hong Kong. The laws in Hong Kong are solely means to control the population. As a judge, you have to choose to take side with either individual rights or the ruling power. Unfortunately, the judges are increasingly leaning towards the regime."

Disputes between the left and the right

Au Nok-hin was a member of Left 21 and the Democratic Party. As a “leftard” (of far-left political leaning) years ago, he had numerous discords with many new social movement participants and organisations. 

Au said, “After the Umbrella Movement, the division among them were very serious. It is too simplistic to discuss pan-democratic against localist groups because within each camp, there are many different factions. I have no experience in the localist groups but some friends told me that they had a “year-long war” and it seems that there were no results. When the critical moment comes, if all are still bogged down by factional disputes hindering cooperation, to me this is senseless.”

“Some people still think Youngspiration has hidden agendas. ‘As you, Au Nok-hin, have been with the Democratic Party for so long, you must also believe in ‘great reconciliation’ with the governing powers…’ To this day, many still have this mode of thought. Some stigmatise a politician because of his/ her association with a certain incident in the past or a certain political party. I think this is tunnel vision.  I am not suggesting that we should all be opportunistic. If the issue is not something that can be solved by one single person, then we should join forces to fight Goliath.”

Has the ecology changed? "It is much better after 2019. Everyone has learnt an important lesson. ‘Peaceful and frontline protesters join hands’ and ‘together we stand’ sound like slogans (they are indeed slogans though).  However, the power of the enemy is growing and there is no point for infighting between Hong Kongers.  Of course, factional disputes will never disappear completely. For example, district councilors will argue hotly even over whether ‘memorial parks for the martyrs’ should be built. This may affect future cooperation.” 

What does Au think when the fight between the leftists and the localist groups are more intense?

"After the Umbrella Movement, there was the district council election. Having vested interests in the election, disagreements among the activists were rife, each trying to differentiate himself/ herself from the other for the sake of differentiation.

“At that time, there was also the incident of university student associations choosing to disaffiliate from the Hong Kong Federation of Students (HKFS). I did not agree with the disaffiliation but understood the logic behind it— no leader(s) and autonomy for individual universities. My opinion at that time was that the HKFS is where student forces would congregate. If the communication platform is dissolved, there will be no collaboration mechanism to address common issues faced by university students. By disintegrating the HKFS, a university may not be able to push through its ideas or initiatives without the help of other universities.”

I (the author of this article) was also pro-disaffiliation at that time and had written many articles to support the idea. The pro-federation camp and pro-disaffiliation camp criticised each other to the degree that emotions were running high. Some pro-federation members derided the pro-disaffiliation students calling them rubbish. Some said the pro-disaffiliation students had hidden agendas. At one time, some pan-democracy camp supporters attributed the despondency in social movements in 2017-18 to the dissolution of the HKFS. 

Au said, “Those who did not want the dissolution of the HKFS of course got emotional just like me. (Au was an executive council member of the Student Union of the Chinese University of Hong Kong and thus a member of the HKFS). Whoever went through this would get emotional. When I was with the HKFS, I understood the pros and cons of having a federation. Nevertheless it was sad to see the disintegration of a long established body. I recalled some senior members telling me that the Chinese Communist Party had tried for many years to sabotage a number of organisations: Civil Human Rights Front (CHRF), Hong Kong Alliance and the HKFS. However, it was the infighting that delivered the fatal blow.”

With the loss of four HKFS member universities, student activities/ movements still carried on. Before and after the Anti-ELAB movement, the university student sector has been holding its ground. For instance, in the midst of the protests, the government proposed to have closed door meetings with the student unions but this was rejected. All student unions acted in unison.  The students have not assumed a leadership role but of their own volition have acted to protect the protesters. Of course, there was also the siege of the two universities (The Chinese University of Hong Kong and Hong Kong Polytechnic University) which turned the campuses into war zones. However, that did not result in the collapse between the student unions and it seemed they were even invigorated.

"Of course, the 2019 modus operandi of being leaderless inspired everyone to take initiatives. Each and every one is contributing more than before.”

Between the protesters and the Civil Human Rights Front 

Where does Au stand in the Anti-ELAB movement?

"In the early days, I usually liaised among various parties on the frontline as a legislative councilor to enable the protesters to leave safely. With a tacit understanding growing among social movement groups, we were not taken aback by this new way of organizing without a central command. Previously, CHRF was criticised for telling everyone to leave when a march finished, holding back the peaceful, rational and non-violent protesters. I think these criticisms stem from the differences in division of labour and stance. There is no right or wrong. At the end of the 2017 July 1st march, there was a division of labour. The peaceful, rational and non-violent protesters stayed in one spot and left. Anyone else taking a more radical stand could pursue further. At that time a group of protesters marched to the Liaison Office of the Central People's Government.”

Over the years, were there many arguments between the radical protesters and CHRF? 

"I was a CHRF convenor from 2016 to 2018, a period of social movement doldrum and I saw very few young people in all the marches. The arguments you mentioned should happen some years before that. During my tenure, there were other protesters joining our marches and they would talk to us.

“For example, Paladin Cheng (an advocate for Hong Kong independence) approached us saying they would come and we respected each other. On 9 June 2019, CHRF wanted to end the march at Admiralty and the localist groups challenged us for wanting to leave, equating leaving to losing. Indeed, CHRF was fulfilling the requirements stipulated in the Letter of No Objection. If we did not comply, the march would become an unlawful assembly. Then it becomes an issue of political accountability. Of course, the frontline protesters took our decision as undermining their supporter base for more aggressive actions. This is solely an issue of where you stand. We all want to do our best.”

Au Nok-hin, now 32 year-old, was once a member of Left 21. In those days, were those who care about politics all left wing?

"Student participation in politics at that time was no comparison to that at present. In my university days, some public policy and politics students did end up pursuing politics. Social movements in those days concerned many resource allocation and real estate developers’ hegemony. Left 21 started initially as a reading group and over time evolved into an organisation taking part in marches.”

The point of contention between the localist groups and the leftards are often times related to the Chinese. In the beginning, at the time when Hong Kong was most hard pressed by the Individual Visit Scheme, it was about the smugglers, hoarding baby formula, Individual Visit Scheme travelers and the appreciation of Renminbi.

Au said, “I think there is a difference in positions. The left wing is not that keen on issues directly related to smugglers and babies of non-Hong Kong resident parents lest it became an issue of discrimination.  The left wing groups were aware of this problem and maintained there was a need to speak out. At that time, I had been a district councilor for about two years and spoke about prohibiting travel by driving.  Later, some groups jumped on the anti-mainland Chinese bandwagon and confrontations among different ethnic groups. These were beyond my boundary at that time. Of course, for sake of argument, the left wing could relate Individual Visit Scheme travelers to the influx of Chinese capital aggravating the life of the poor in Hong Kong. However, this would not appeal to many.”

The subject of confrontations among different ethnic groups attracted the most attention and made it easy to call for actions within a short timeframe. However, this could easily turn into a discrimination issue for many. The left wing supporters inherently resisted nationalism. In those years, they indeed failed to gauge public sentiments over micro issues such as smuggling of goods and baby formula. Rather, they were after the construction of a yet to be shaped order.

Au summed up those years, “the politics of identity and economic allocation are not contradictory. However, an apparent division grew between the left wing and localist groups as their ideologies evolved.”

Do you think Hong Kongers are an ethnic group, or even a national group?

"My view on nationality has always been quite shallow. Since I was small, the education I received kept telling me that nationalism would give rise to totalitarianism. In recent years, my friend Dr Cheung Yuk-man recommended books by authors such as Benedict Anderson and Liah Greenfeld which shed a different light. On campus, ‘Nationalism’ is rarely discussed. The concept of ‘Nation’ is touched upon in Public Policy and Politics classes but it is not a dedicated subject.

"In the past two or three years, political confrontations resulted in a strong divide between Hong Kong and China. This question is asked regularly in public opinion surveys: Are you a Hong Konger, a Chinese, a Hong Kong Chinese or a Chinese Hong Konger? But this is now an ‘old question’.  Under Leung Chun-ying, Hong Kong was subjugated and the promise of one country two systems was shattered. Many find it difficult to put the two identities (Hong Konger and Chinese) together.

“When you are being oppressed by someone all the time, you will find it hard to treat this person as part of the family. This is human nature. The Hong Konger identity is formed amidst such political disputes and this has reached a point of no return. The Chinese Communist Party is cornering Hong Kongers by various means. People feel stifled and disrespected. Thus what you have mentioned will keep taking shape.”

"The Way forward for Hong Kong's Left wing"

At the height of the Anti-ELAB movement, I read a left wing article reflecting on them having no role in the movement and in search for improvement. What is Au’s view? Have the leftists no role to play in the Anti-ELAB movement?

"I have been thinking of writing an article recently of a title similar to the ‘problems facing the future of Hong Kong leftists’. There is a big problem with the Hong Kong’s left wing which is the lack of representation in Hong Kong politics. Let’s put aside ideology: look at the reality in the current political scene first. Left wing groups have many personnel issues that hinder political performance.  Hong Kong Association for Democracy and People's Livelihood (ADPL), Hong Kong Confederation of Trade Unions and Neighbourhood, and Worker's Service Centre (NWSC) all fall apart due to personnel issues. The best way forward, in my opinion, is to have a left wing coalition.  In the legislative council, it will be an alliance comprising ADPL, NWSC and the League of Social Democrats (LSD) with a focus on allocation of social resources. I do not represent the left wing enough in the legislative council. I am not a unionist and when I talk about labour and resource allocation issues, no one listens. (Could it be a case of a general lack of interests among Hong Kongers?)  Capturing the attention of the mass public is the most important. If the racial nationalist camp can draw mass support and generate discussion points, the left wing groups should also be able to do so. Labour relation is a perpetual concern. We face issues on a daily basis such as the trend towards non-permanent positions and a lack of labour protection.  It is not a matter of the lack of discussion topics but personnel issues. Everyone has his/her own history and this becomes a burden. It is difficult to imagine ADPL and NWSC. merging Are they very different in ideology? Will they lose their subjects of debate? It is nevertheless difficult to see a coalition of the left wing groups.”

Not wanting to lose one’s own identity?

"Left wing groups never lack of response in resources. The problem lies in failing to properly establish a system. Overseas left wing groups have relaxed from strict adherence to doctrines and incorporated some populist ideology to first capture mass attention then preach their political beliefs. The self-determination groups in Hong Kong are closest to those overseas left wing groups.  Eddie Chu Hoi-dick expresses his left wing concerns on the pretext of environmental protection. Demosistō focuses on political controversies and then brings in its left wing concerns.”

After cooperating with the self-determination groups, especially Demosistō, how is Au different from them?

"I would say the cooperation with Demosistō was by chance. If there is a difference, I admit the issue of independence is not my biggest concern."

Finishing one course after another in a banquet

Au does not plan on re-entering LegCo elections but intends to pursue doctorate studies in Japan in September. Yet he will still be involved in the liaison and coordination among various camps in the election. What is the latest coordination progress?

"After Dennis Kwok Wing-hang was openly criticised by the Liaison Office of the Central People's Government in Hong Kong and the Hong Kong and Macau Affairs Office, the mainstream opinion in the political camps participating in the election coordination is that there must be a plan A and a plan B. Previously the plan was to nominate candidates who have the greatest chance of winning.

“Now, in addition to the highest chance winners, there is a need to have fall back candidates as it is anticipated that nominated candidates with the highest chance of winning may be disqualified. As it turns out, many novices in politics surprisingly are more receptive to nomination coordination and primary election. Currently, the Kwok incident has impacted many and the whole situation becomes more complex as Beijing’s moves need to be considered. 

"In the past, disqualification aimed to remove one’s political rights chiefly concerning independence issues. One has to voice out if he/ she supports one country two systems and the Basic Laws. What if more will be removed? The oath can be altered to forbid filibuster to ensure a smooth running of legislative council meetings. Pro-democracy scholars will tell you not to give up elections and we must fight for seats and mass support. However, the question is whether someone like Kwok should still run for elections? Pro-democracy scholars will say public office is an influential position in society and allows the pro-democracy camp to fight the regime in the long run. Is everyone in society opposing the regime unanimously?  If not, if we do not run elections, we will be silenced. The organisation of marches is ad hoc and the impact will not last long term. There have been examples of a mass boycott of election. In an anti-colonial rule movement, the opposition party in an African country accused the government of election rigging and the whole party resigned forcing the government to sit at the discussion table. However, this may not work in Hong Kong. What if our prospect does not look as promising as that of others?”

The lawsuits may affect Au’s study plan in September. How is Au feeling? "Well, I think the risk is fairly high… In any case, we will ‘finish the banquet meal one course first before starting the next one’ (tackle the issues one after another). We should strike where the enemy is the most vulnerable and avoid their forte. In the current pandemic, it is important for the opposing mainstream camps to canvass and uphold public support. To win over the hearts of the public is a small battle and district councilors are the intermediaries. Underperformance in this will give the regime the upper hand and we will lose public support and then lose the movement.”

At present, there are discussions on the internet about whether “elections will help?” and “Is it meaningful to vote in the functional constituencies?” What are Au’s views on the negativity surrounding various election pathways? Is the logic to fight for every inch of territory?

"It's a kind of logic to fight for every inch of territory. Of course I do think they are testing the boundary and it is disappointing. They keep moving the goal post and what is the point of voting in elections? Nevertheless, in political fights, unless you are confident in defeating your opponent in one blow, our strategy should be to keep fighting without being beaten. Mao Zedong once said at a banquet, one cannot finish all the food in one go. The courses are served one after another. By tackling it course by course, small battles can be won to achieve the overall strategy. I have been thinking about this movement. After nine months or so, what have we achieved and lost? What do we expect to get if we keep participating in the elections? If I expect not to get anything, then why do we still keep participating in elections?

"What we have achieved as far as I can remember are—overturning the Extradition Law Amendment Bill, winning more than 300 district council seats, exposing police brutality and the wrong doings of the government, dealing with the issue of resistance by force, establishing a ‘yellow’ identity for the pro-democracy camp ... The government thinking is the same, that is to find ways to fight back in every front. It has been ongoing in recent months. In the education sector, after a teacher gave a talk on a radio programme, Tang Ping-keung will raise a complaint which will be followed up.Radio and Television Hong Kong is their oppression target in the news media. The pro-establishment parties have already started their work in the community, hoping for a comeback in the next election. 

"In the early days of the movement, we were very strategic—the peaceful, rational and non-violent protesters and the frontline protesters holding fort for each other, opening up the international frontline, building up an economic circle… The ultimate success of the movement depends on how resilient and how persistent we are.  Sometimes I worry that I am overcome by hatred. An example is that I am so fixated on engaging the police in physical fights that I can’t see the forest for the trees. Even if you defeat Tang Ping-keung, he is merely a cog in the wheel.  Previously our energy came from our vibrant strategies. For example, the Lennon Wall is an efficient and effective platform. Now the police are intentionally patrolling these locations, making posting at Lennon Walls risky. Shall we innovate new means to promote our cause and fight on? We will lose our resilience if our strategy is too rigid.”

Source: The Stand News, May 2020

https://www.thestandnews.com/politics/專訪-大聲公襲警罪成-區諾軒用個人例子答你-法治點死/