[Special] Inside the court room of ‘8.18’ case: a group of defendants with grey hair, a startlingly severe sentence
Translated by the Guardians of Hong Kong June 18, 2021
It was 16 April 2021 afternoon in Court number one of West Kowloon Magistracy. Judge Amanda WOODCOCK pronounced that the nine defendants’ acts to lead the procession on ‘8.18’ (18 August 2019) were an obvious challenge to police power, law and discipline. Imprisonment was the only appropriate choice. She sentenced Jimmy LAI Chee Ying, Martin LEE Chu Ming, Margaret NG Oi Yee, LEUNG Kwok Hung, LEE Cheuk Yan, Cyd HO Sau Lan, Albert HO Chun Yan, AU Nok Hin and LEUNG Yiu Chung to be imprisoned for periods varying from 8 to 18 months. Among the group only 4 were granted suspensions while the other 5 had to be sent to jail immediately.
In the silent courtroom, people were originally holding their breath waiting for the verdict. When the judge said the first charge would base on 18 months as a starting point of sentence, there was an immediate uproar in the public seating.
The judge proceeded with her pronouncement of sentence. She pointed out that considering their ages, whether the defendant pleaded guilty or had spent their whole life serving the public, deductions of length of imprisonment could be appropriated…. In the meantime the nine defendants, of whom eight were elderly with grey hair, still looked calm. Martin LEE bent down his head all the time, adjusting his earphones occasionally. LEE Cheuk Yan, who received a 12-month imprisonment, pulled down his face mask to have a sip of water. A young female lawyer started to cry.
When everything was done and dusted the defendants, allowed to walk out of the defendant gate, proceeded to hug LEE Cheuk Yan and Cyd HO Sau Lan who were sentenced to imprisonment for the first time. Martin LEE, who was sitting outside the gate, hurried to shake LEE Cheuk Yan’s hand firmly before the correctional services staff closed the gate. Cyd HO hurried to ask her friends to take and keep the book she was holding.
In the public seating, Figo CHAN Ho Wun, Convener of the Civil Human Rights Front, started a shout of salute to his seniors, “Thank you everyone!”, ”Thanks for your hard work!” Many others joined in and the court was immediately filled with voices of “Hold on, Ah Yan!”, “Hold on, Cyd!” and “Add oil, take care”. LEE Cheuk Yan, with his eyes all red, raised both of his hands and made a Five-and-One gesture before entering the detention room.
After the court session Margaret NG, who was frowning all the while, walked out of the defendant gate. She grabbed the arm of a young lawyer,” This way of sentencing is wrong”. She held on to his arm with all her might and repeated again and again, “This way of sentencing is wrong.”
* * *
Earlier in the morning before the court assembled, the courtroom was filled with familiar faces of the pro-democrats. They were chatting, joking or touching elbows as greetings during the pandemic. The environment was normal and casual.
Before entering the defendant gate, LEE Cheuk Yan greeted his lawyer representative. They cheered each other up by holding their fists firmly. Cyd Ho talked to her counsel Philip Dykes and padded his shoulder. She also went and hugged goodbye to her friends including Alan LEONG Kah Kit and Gladys Veronica LI. Martin LEE, in his deep blue checker jacket and “shoes without laces”, sat in a corner outside the court room, exchanging whispers with Joseph Zen Ze Kiun. Margaret NG, wearing a white blouse with a scarf, leant against the defendant gate quietly and alone.
When Jimmy LAI, detained earlier due to a National Security Law case, was brought to the defendant gate by the correctional services staff, he exchanged greetings with the group as usual. However when LEUNG Kwok Hung was brought out, he shouted “Peaceful gathering is not a crime! Shame on political prosecution!” These words somewhat reminded everyone about the essence of why they were there.
The contract barrister representing the prosecution tied her chignon and wore her court wig in preparation for the court.
“Knock, knock, knock.
” The 8.18 case entered its finale when the loud door knocking sound arose and everyone rose to bend to the judge. Soon after the court proceeded, Judge WOODCOCK told the lawyers that she expected no more than 30 minutes of pleading from each defendant to allow sufficient time for verdict in the afternoon of the same day.
According to the sequence, Audrey EU Yuet Mee, Senior Counsel, was the first to plead and she interceded for Jimmy LAI. Right after that was Philip DYKES who represented both LEE Cheuk Yan and Cyd HO Sau Lan.
Audrey EU pointed out that on ‘8.18’a large group of people went to Victoria Park for a legal assembly. Jimmy LAI was merely executing his constitutional right of peaceful assembly. Given he was not playing an active role in the case imprisonment would be an out of proportion sentence. When Philip DYKES spoke he articulated that both LEE Cheuk Yan and Cyd HO served as Legco members, paying special attentions to topics about labour, the grass root and sexual minorities, spending most of their lives serving for Hong Kong.
Both Audrey EU and Philip DYKES also said that this court case is different in terms of level of violence from the “Unauthorized assembly at police headquarters” case of 21 June 2019, involving Joshua WONG Chi Fung and Agnes CHOW Ting, upon which the prosecution side relied. They therefore sincerely requested the court to refer to the many pre-2019 cases of un-authorized assembly and use fine or bound over to be of good behaviour as sentences, instead of imprisonment.
The third one to intercede was Margaret NG. However her Senior Counsel, Ambrose HO Pui Him, told the court that Margaret NG had relieved him of his duty representing her and hoped to speak to the court in person.
WOODCOCK expressed that she was not criticizing Margaret NG ’s intention to take an opportunity to make a speech and emphasized that the current stage should be about listening to intercession and matters related to the charges. Ambrose HO explained that NG would talk about herself, her work and view about the rule of law. These would best be delivered herself. The judge accepted.
Margaret NG stood up in the defendant area. She slightly adjusted the microphone and upon approval from the judge she took off her face mask. She held her script with her right hand and started reciting it slowly behind the glass shield.
Margaret NG read “… It was a sharp turn for me to switch to law in 1981 when I went to Cambridge to read for a law degree. Those were the crucial years of Sino-British negotiations over the future of Hong Kong.” After she returned to Hong Kong, she worked as an editor for a newspaper. “I resumed my legal career in 1990, but in 1995 I was persuaded to stand for election in the legal functional constituency” where she won a Legco seat and served for 18 years.
Margaret said during these 18 years, she upheld “a dual mission: to do my utmost to prevent legislation that would harm the rule of law, and to safeguard the institutions that underpin the rule of law …In June 1999, in the wake of the Final Court of Appeal's landmark decision on the right of abode in NG Ka Ling, the NPCSC (National People’s Congress Standing Committee) issued its first interpretation of the Basic Law to overturn the court's decision. … In protest, on 30 June, I and over 600 members of the legal profession went on a silent march, and stood in quiet respect and in solidarity.” Margaret emphasized that “The law should give protection to rights, not take them away” and only doing so could the government win the trust of the public.
On the issue of judicial independence, Margaret mentioned Anthony Kennedy, a judge of the Supreme Court of the United States who made a speech while visiting Hong Kong in 1999. She quoted his words, “because if the bar and the society seem indifferent to a too-narrow judicial charter, there is a risk that the judiciary will in fact or perception aid and abet a larger scheme to deprive persons of their liberty.”
Margaret continued that Kennedy’s words were very serious, pointing out that the legal profession should dedicate to protect the independence of judicial system because “to say that the defense of judicial independence is not for the benefit of judges themselves, but so that they can be in a position fearlessly to uphold the rule of law.”
At that moment, a few lawyers could not help from nodding while listening and jotting notes.
WOODCOCK sometimes bent down and jotted notes while sometimes raised her head and gazed at Margaret. The public seating applauded when Margaret’s plead was over.
During the recess afterwards, a lady who sat in the hall outside the court room grabbed Margaret eagerly and asked “Did you hear our applause? We clapped very loudly outside!” Surprisingly Margaret, who had decades of experience making speeches in the LegCo and courts, said, “I didn’t hear anything! I was scared to death worrying that she might stop me anytime!”
After Margaret NG, it was Senior Counsel PUN Hei’s turn representing LEUNG Kwok Hung. PUN recalled the Final Court of Appeal’s “LEUNG Kwok Hung case” which was a classic case referred by both sides. In that case PUN was representing one of the defendants and he attempted to point out that under the Public Order Ordinance a maximum of 5 year imprisonment was too heavy a sentence against an offence of unauthorized assembly.
PUN continued that though he lost the case back then, the Final Court of Appeal stated clearly in their judgment that there was no guideline to the sentence of the offence of unauthorized assembly and the court should pronounce appropriate penalties according to the time, scale and level of social disruption of the assembly. 5 years of imprisonment was only the maximum penalty in the worst scenario, “obviously this case is not the worst situation.”
PUN occasionally showed his signature grins and repeatedly emphasized that if the court really intended to sentence the defendants to imprisonment, he hoped the court could reduce to non-imprisonment; and if the court really sentence them to imprisonment, he hoped there would be suspensions…
LEUNG Kwok Hung often hired PUN to handle his cases over the years: from defending LEUNG in criminal cases, to representing him during judicial review, e.g. “hair cutting for male inmates” review, “Anti-mask law” review and National Security Law 47 persons case. They knew each other for more than a decade. PUN also wrote articles in LEUNG’s book, mentioning funny stories among their court cases in the past.
After he finished the plead PUN turned around and made an “Okay” gesture to LEUNG who was in the defendant area.
The last two to intercede, Albert HO and Martin LEE, were represented by Senior Counsel Graham HARRIS. HARRIS said Albert and Martin were aged 70 and 83 respectively. Albert became a lawyer in 1977, thereafter opened a solicitor firm to serve solely for public interest. Martin was an Honorary Senior Counsel and also a Basic Law Drafting Committee member. Martin spent his whole life fighting for democracy via rational and peaceful approaches.
Graham HARRIS further pointed that a civilized society should not put a person into prison unless there was absolutely no other choice. For this case there were other choices of sentence. Graham finally emphasized that his two clients not only had excellent characters, but also had enormous respect from the public. It would not bring justice if the court chose to lock up the two aged persons who spent their whole lives serving the community.
After the intercessions, the court deferred pronouncement of sentences until after the two court cases regarding Jimmy LAI in the same magistracy in the afternoon.
When Judge WOODCOCK pronounced her sentences, she referred to the cases of “Recapturing the Civic Square” of Joshua WONG and “Unauthorized assembly at the police headquarters 21 June 2019”of Agnes CHOW. In order to uphold public order, even though the illegal assembly did not involve real violence, the court should deliver a proportionate sentence of preventive nature.
The previous cases also didn’t prohibit courts from delivering imprisonment penalties to assemblies not involving violence.
WOODCOCK pointed that although unauthorized assembly cases prior to 2019 were mostly sentenced to fine, “(back then) there was no court case having a background of social disturbance and riots comparable to that in 2019.”The defendants used their influence to lead the procession. Therefore immediate imprisonment was the only appropriate sentence. WOODCOCK handed down a determination that the two charges use 15 to 18 months and 12 months of imprisonments as starting points of sentencing respectively. Based on their ages, health and social contributions, deductions of terms of imprisonment or suspensions were considered.
The court came to a conclusion. The crowd seemed to be stunned digesting the outcome until Figo CHAN shouted his gratitude. Right after that a lot of folks followed. They cheered, said goodbye and cussed “political oppression”.
After a short recess, the court reassembled to handle the 8.31 procession case, still presided by Judge WOODCOCK, over the sentencing of Jimmy LAI, LEE Cheuk Yan and YEUNG Sum.
Albert HO, who received a suspension, met with the journalists when leaving the court. He was shocked and disappointed with the judge’s standard of sentencing. He also felt very heartbroken to learn that a few other defendants had to go to prison right away.
Margaret NG left the magistracy in hurry. She walked right to the basement car park and drove away. When leaving the magistracy Martin LEE was surrounded by about fifty reporters who took lots of photos. Martin cooperated with the photo shooting though he was scowling all the time. In response to questions raised by the reporters, Martin only raised his hand slightly. He got on a private car and left without a single word.
Author: LEUNG Hoi-Ching
Source: Stand News #Apr16
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