Today marks 3 years since over a million Hong Kongers took to the streets in the pouring rain to protest police brutality and government impunity. The trial that ensued was also one of the most significant (and eventful) to come out of the 2019 protests.
By this time, the 5 demands had crystallized. On 721, the police turned a blind eye to triads beating up citizens in Yuen Long train station; on 811, a first-aider was shot in the eye by police. There was widespread discontent towards the government.
The 818 protest was unique in that the police approved the assembly inside Victoria Park, but objected to the public procession leading out of it to Chater Road, as well as the assembly planned at the end-point at Chater Garden. Despite the large numbers expected, the police provided no arrangement for the dispersal of the crowd.
What transpired was hence a “tidal-flow meeting” (流水式集會) – participants of the lawful assembly inevitably had to leave the park, whereas many others were lining up to get in.
No violence took place on the day. This was also accepted by the police, the prosecution, and the judge – there was only one incident of one person (among over a million!) who kicked over a traffic cone. For many, this confirmed the belief that there would only be violence if there was police presence.
The police did not disperse the crowd and took no enforcement action – until 8 months later, in April 2020, when they arrested 9 democracy leaders who had assisted with leading the crowd out of Victoria Park. They were Jimmy Lai, founder of Apple Daily, and union leader Lee Cheuk Yan, who had both previously been arrested for an unauthorized assembly which took place on 31 Aug 2019; veteran human rights lawyers Margaret Ng, Martin Lee, and Albert Ho; League of Social Democrats lawmaker “Long Hair” Leung Kwok Hung; Labour Party lawmaker Cyd Ho; labour activist and lawmaker Leung Yiu Chung; and former lawmaker Au Nok Hin. All 9 were charged with organizing and knowingly taking part in an unauthorized assembly. 6 others were arrested on the same day for their roles in other public assemblies.
After the enactment of the national security law months later in July 2020, Jimmy Lai would be further targeted for a myriad of offences related to Apple Daily. Margaret Ng and Cyd Ho too would be arrested again for their involvement in independent media outlet Stand News and the 612 Humanitarian Fund. Albert Ho would also be targeted for his leadership of the group which organized yearly candlelight vigils for the Tiananmen massacre.
Au Nok Hin already had been arrested earlier for assaulting a police officer (by shouting through a loudspeaker). In 2021, he and Long Hair would be kept in indefinite detention for their role in a democratic primary in July 2020.
The political element in the 818 case should be clear from who the authorities chose to prosecute among the millions who joined the protest. To add to that, this was the first unauthorized assembly case to be brought to the District Court – showing the prosecution’s intent to aim for a higher sentence than in previous cases. Most strikingly, the Department of Justice sought to admit London silk, David Perry QC, to lead the prosecution, and even suggested they might seek a waiver of Hong Kong’s notoriously strict covid restrictions for him to attend the trial.
This was surprising as the unauthorized assembly offence did not involve legal issues of unusual difficulty or complexity – and indeed, before this case, was heard in the lowest courts. After argument, the High Court allowed David Perry QC’s admission (HCMP 2221/2020). Although David Perry QC’s failure to attend at the end of the day is often attributed to backlash, it is just as likely that it was practically impossible because of extensive covid quarantine and flight bans from the UK.
The trial for 818 was fixed for 16 February to 1 March 2021 (DCCC 536/2020). The best legal minds in constitutional law and criminal law represented the 9 defendants, and a number even acted pro bono. They raised arguments about the constitutionality of the offences in view of the fundamental right to peaceful assembly. The cross-examination by these distinguished lawyers of the police officers was a sight to see.
There was little dispute about the facts. The key challenges were constitutional: a) at the systemic level, that criminal offences relating to unauthorized assembly were disproportionate restrictions of the freedom of assembly and of procession; and b) at the operational level as relating to the facts on the day of 818, including that the assembly was peaceful, the police had not told the crowd to disperse, and making arrests only 8 months after.
At one point, the prosecution adduced records of decades-old legislative debate over the Public Order Ordinance – apparently of little relevance than to paint the defendant lawmakers as having objected to the law all along.
However, the 818 trial would be interrupted by other cases. On 28 February 2021, all 53 arrestees involved in the democratic primary for the Legislative Council of July 2020 were called in to report to the police. Most were prepared for the worst, and indeed 47 of them were charged under the national security law and refused bail in what is now known as the “NSL47” case. Long Hair and Au Nok Hin were among them. Both remain in detention at the time of writing.
Further, as the 818 trial overran, it also clashed with a second case: the appeal of the Occupy Central (or Umbrella Movement) case at the Court of Appeal. As many human rights lawyers were involved in all of the above cases, they were seen dashing between the marathon “mention” hearing for the NSL47 at West Kowloon Magistracy, and the Occupy appeal at the High Court in Admiralty.
It then clashed with a third case: Long Hair’s. In a stunning mark of absurdity, this case was where Margaret Ng (the 3rd Defendant in 818) was representing Long Hair (the 4th Defendant in 818) at the Appeal Committee of the Court of Final Appeal. This case involved constitutional issues regarding the privilege of lawmakers from prosecution for conduct in legislative chambers. Ng had to seek leave from her own trial to represent her co-defendant. Sadly, it is but one of now numerous cases where lawyers have been impeded by their own criminal cases from representing their clients – Chow Hang Tung, Albert Ho, Alvin Yeung, and Lawrence Lau come readily to mind.
As was somewhat expected, the defence arguments on constitutionality were not given the attention they deserved in Woodcock’s judgment. They were dismissed summarily. All 9 defendants were convicted.
Each of the defendants made mitigation submissions laying out their longstanding service to society. Margaret Ng’s submissions are one for the ages. This was the first time, after over 3 decades in practice, that she was making submissions in the dock instead of at the bench. She was only a few lines in when defence lawyers were seen to dab at their eyes.
The judge found that the defendants had “deliberately defied the law”, and that the case involved a “direct challenge to the authority of the police, law and order”, which was an aggravating factor for sentence. All were sentenced to imprisonment for 10-odd months, but the sentence was suspended for Margaret Ng, Albert Ho, Leung Yiu Chung, and Martin Lee.
This thread ends here, although the case doesn’t – an appeal is under way. There isn’t a pithy line to sum up how painful it is, as a lawyer, to witness the downfall of the legal system, or how it has turned against those people who have loved and dedicated their lives to Hong Kong. This is just an account that needed to be told.