Three young pro-democracy activists (“the Trio”) — Joshua Wong, Agnes Chow and Ivan Lam were sentenced respectively to prison for 13.5 months, 10 months, and 7 months for inciting, organising and participating an unauthorised assembly outside the police headquarters in Wan Chai last June. Civil Rights Observer found the sentence of the Trio disproportionate to their involved charges which are non-violent in nature, thereby undermining the protection to the freedom of assembly and expression safeguarded in international human rights law. Such a harsh sentence would also create a chilling effect on people exercising their due rights to organise and participate in public assemblies.
Outlined in a joint report, the UN human rights experts have confirmed in the context of a peaceful assembly “[w]here there has been a failure to properly notify, organizers, community or political leaders should not be subject to criminal or administrative sanctions resulting in fines or imprisonment.” (Note 1)
The UN Human Rights Committee also added that “[w]here criminal or administrative sanctions are imposed on organizers of or participants in a peaceful assembly for their unlawful conduct, such sanctions must be proportionate, non-discriminatory in nature and must not be based on ambiguous or overbroadly defined offences, or suppress conduct protected under the Covenant (International Covenant on Civil and Political Rights).” (Note 2)
Furthermore, Civil Rights Observer considers the Court decision, grounded on factors including the location of the assembly and the targets of criticism (the Hong Kong Police Force) to conclude the assembly concerned is more serious than other unauthorized assemblies and hence deserves heavier penalties, a contrary to the protection of freedom of assembly and expression under international human rights law.
As the UN Human Rights Committee highlighted, “all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition…laws should not provide for more severe penalties solely on the basis of the identity of the person that may have been impugned. States parties should not prohibit criticism of institutions, such as the army or the administration.” (Note 3)
Joshua Wong, Agnes Chow and Ivan Lam stood accused of inciting, organising and participating in an assembly without obtaining “notice of no objection” from the Commissioner of the Police outside the police headquarters in Wan Chai last June. The Trio pleaded guilty to “incitement to knowingly take part in an unauthorised assembly”, Wong additionally pleaded guilty to “organising an unauthorised assembly” while Chow admitted “knowingly taking part in an unauthorised assembly”.
The Court described in the judgement that chanting slogans that undermine the police force amounts to a challenge to the police authority, which made the case more serious. In view of the facts of the case, the backgrounds of the defendants and that suspended sentences are inappropriate, Wong was sentenced to 13.5 months’ imprisonment whilst Chow received 10 moths, and Lam was handed seven months. Chow’s application for bail pending an appeal of her sentence was dismissed. She has reportedly submitted another request to the High Court to be reviewed on 9th December (Wednesday).
Note 1: Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, A/HRC/31/66, para 23.
Note 2: UN Human Rights Committee, General Comment 37, para 67
Note 3: UN Human Rights Committee, General Comment 34, para 38