If you have been listening to the pro-establishment propaganda machine in recent months, you would think that as the protest related cases made its way through the Hong Kong Court system, all those charged were being let off with virtually no consequences. There have been attacks on judges, calls for ‘judicial reform’, and establishing a sentencing council to oversee judges.

Yet this week we saw that Joshua Wong, Agnes Chow, and Ivan Lam have been given prison sentences for organizing a protest outside the police headquarters in Wan Chai in June 2019. Wong received 13 and a half months behind bars, while Chow 10 months and Lam, 7 months’ imprisonment. These are not light sentences by any measure, and pale in comparison to non-custodial sentences handed to earlier defendants who faced similar charges. Each will also have to deal with the life-long ramifications after their incarceration, including a criminal record.

Local and international media lit up with commentary about these sentences, with many questioning if three skinny Hong Kong youths really did deserve to be locked up for such a long time, just for calling on the public to join an unauthorized assembly without inciting any violence.

When we step back and look at other protest related cases, the sentences overall appear to be very strict. There has just been a 21-month sentence handed down against a defendant for throwing eggs at the walls of a police station, 11 months for possession of a catapult and marbles, and a 55-day spell in prison for throwing a metal can onto a road as police were clearing away a barricade set up by protesters. Who could also forget the 5 and a half months for possession of plastic ties, or the 6-month sentence for possession of a laser pointer last year, prosecuted as an “offensive weapon”?

None of these sentences would appear to an objective bystander to be, on their face, too lenient. Rather, you may reasonably say they appear too harsh.

While I, personally, may disagree with the severity of these sentences, it does not mean I think the system as a whole is unfair or in need of dire reform. One of the basic tenets of civil disobedience is that actors who engage in actions that break the law knowingly accept the legal consequences. No one is above the law, and our system already has well-established sentencing guidelines and an appeal process for challenging sentences that the accused believe to be manifestly excessive or wrong in principle.

This is a difficult message to convey and I can see how the outcomes of the protest cases are causing grievances among members of the Hong Kong public who support an independent judiciary. But despite these cases, we must not get caught up in the hysteria against the judiciary being whipped up by certain politicians and media outlets. To do so will only aid their wholesale attack on the judiciary and the rule of law.

Just last month at the Basic Law 30th Anniversary Legal Summit, Hong Kong and Macau Affairs Office Deputy Director, Zhang Xiaoming, said Hong Kong’s judiciary was in need of reform and that judicial reforms happened all the time overseas. Then, in the same breath, he mentioned that ‘patriotism’ should be put before Hong Kong’s core values such as democracy, freedom and human rights. Certain politicians quickly chimed in behind his comments calling for an overhaul of the judiciary, from how judges are recruited to the bench, how they are educated, how they are allocated cases, and regulating sentencing.

While it is true that measures taken by other countries like Australia and the United Kingdom such as stricter sentencing guidelines, external agencies such as a sentencing council, and judicial education on community expectations in sentencing have been deemed necessary and implemented, they were done so with a view to helping to boost public confidence in criminal justice and with care not to unduly curtail judicial discretion. They were also done by governments subject to the oversight of democratic mandates and their actions were tempered by strong institutions. The current call in Hong Kong for judicial reform and the context could not be more different. The real purpose is not for the noble aim of improving confidence in the justice system or our institutions, but rather to ensure that “patriotism” above all else determines who is being selected as a judge and is the determining factor of how guilty a defendant is.

That is why when, two days after Zhang spoke at the conference, the Court of First Instance ruled that the failure of the Police to display ID numbers did violate the Bill of Rights, there was another slew of personal and vitriolic attacks by pro-establishment politicians and Beijing controlled media outlets against the judge who decided that case. ‘How could any patriotic judge rule against the police in the line of duty?’ they screamed.

This pattern of behavior shows that there is a systematic, concerted campaign by Beijing to take control of the Hong Kong Courts to end the judiciary independence and the separation of powers. If we also willingly join in the chorus of attacks (albeit for opposite reasons), then judicial officers will naturally, and perhaps understandably, fall in line with the other institutions that have been hollowed out by Beijing. That is why we must not inadvertently aid and abet their destructive motives, otherwise we will all get our just desserts.

(Davyd Wong is a practising solicitor, the founder of Pro Bono HK, and a member of the Council of the Hong Kong Law Society. The opinions expressed here are his alone, and do not constitute professional advice of any kind.)

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