By Jerome A. Cohen
Here at last is the decision in the long-awaited prosecution of the 9 prominent HK democratic leaders for their participation in the August 18, 2019 protest against the proposed extradition/rendition law. 89 pages to wade through, but an apparently reasoned opinion by Judge Amanda Woodcock. Unlike some of her colleagues handling earlier cases, she may emerge from this with added prestige from handling a controversial case in a responsible way, even though the outcome is politically disappointing to many of us. As the wife of KH Leung, always the most demonstrative of the protesters, said: “It was expected.”
There are many questions about the case, at least in my mind, and I hope that closer observers of Hong Kong justice will aid our understanding. I have never understood why Mr. Au and YC Leung pleaded guilty while the other 7 decided to go to trial. Perhaps Au wanted to take responsibility for leading the march and thereby relieve the others from guilt. YC Leung, a moderate, may have hoped for a lenient sentence by not contesting the charges. But breaking with the other 7 seemed puzzling. The judge did continue to grant him bail, together with most of the others, pending completion of the mitigation hearing that will give them a chance to obtain lenient sentences on April 16.
The maximum sentence will be five years, which no one will receive, I believe. But sentencing will challenge the judge to distinguish among varied cases. One pro-Beijing supporter has voiced support for giving Jimmy Lai a life sentence, impossible in this case but not at all impossible, given his age and the accumulated prosecutions to which he is being subjected.
The granting of bail between now and April 16 was certainly the right choice. But it makes one wonder why Joshua Wong and Agnes Chow were not also granted bail before their mitigation hearings in a previous, similar case. The court this time wisely rejected bail denial but did amend the terms to prevent legal fleeing of the jurisdiction.
It is notable that Paul Harris, the new president of the Bar Association who is under vicious attack from Beijing forces, represented YC Leung and managed to get in a plea for leniency before the mitigation hearing was postponed until April 16. I do not know who is representing Martin Lee, Jimmy Lai, Margaret NG, Albert Ho and the others. It will be interesting to see the arguments made on behalf of leniency for each of them, given differing circumstances. Martin Lee is 82. I think he deserves a suspended sentence of some sort, and not only because of age. Albert Ho is also a respected friend and distinguished civil rights campaigner, as is Margaret Ng, not to mention the other ex-legislators. These lawyers will also face collateral non-criminal sanctions that often follow criminal conviction.
I wonder how they will deal with prospects for appealing the convictions. Appeal is unlikely to be successful in view of a previous decision of the Court of Final Appeal, but the defense has access to able counsel, and appeal, while very expensive for the defendants, may give them further time to be free on bail and to mobilize further public support. The constitutional questions involved may benefit from updated consideration by the CFA, although prospects for modification or reversal in the current political climate seem grim.