‘Occupy’ leaders took HK’s stability, prosperity hostage

Organizers of the ‘Occupy Central’ protests had resorted to blackmailing the SAR and deserve heavier penalties, Song Sio-chong writes

It’s reported that the leaders and organizers of the “Occupy Central” campaign, or “Umbrella Revolution”, as it was called, have now been charged with public nuisance. But, it remains to be seen whether the charge is made under common law or is a statutory one, technically speaking. A four-day pretrial review will begin on Jan 9 to settle legal arguments about the charges.

Nuisance covers a wide range of offences in the statutes and in common law. For example, Section 12 of the Public Health and Municipal Services Ordinance (Cap 132) says “nuisance may be dealt with summarily”, Section 4 of the Summary Offences Ordinance refers to “nuisance committed in public places” while Section 4A of the same ordinance deals with “obstruction of public places”. All of them describe various nuisances in public health, municipal areas and public places and provide for a maximum penalty of three months’ imprisonment and a fine of HK$5,000.

Public nuisance in common law is, however, more widespread. In contrast, the maximum penalty for causing public nuisance under common law calls for a maximum of seven years’ imprisonment. A fine may be imposed under the Criminal Procedure Ordinance and it will be higher in more complex cases.

Without mentioning which sections of the related ordinances are evoked, it appears that the charge meted out to the “Occupy Central” leaders falls under common law. As court injunctions and claims for damages are likely in the “Occupy Central” case, the Hong Kong Special Administrative Region Government had likely opted for the public nuisance charge under common law.

Article 63 of the Basic Law stipulates: “The Department of Justice of the HKSAR shall control criminal prosecution, free from any interference.” Undoubtedly, the department had chosen to prosecute according to common law, judging from the massive scale and significant social impact, as well as the traffic disruption and huge economic damage the movement had done to Hong Kong.

However, there are other crimes that might also have been committed by the “Occupy” leaders. Firstly, the “Occupy Central” movement was an illegal occupation of key city venues in violation of Section 17A “offences in relation to Sections 6, 7, 8, 9, 11, 13, 13A, 14, 15 and 17” of the Public Order Ordinance (Cap 245).

The said provisions also refer to the “general powers of the commissioner of police” in Section 6; “regulation of public meetings” in Section 7; “notification of public meetings” in Section 8; the “power of commissioner of police to prohibit notified public meeting” in Section 9; “requirements and conditions applying to public meetings” in Section 11; “regulation of public processions” in Section 13; “notification of public processions” in Section 13A; the “right of commissioner of police to object to public procession” in Section 14; “requirements and conditions applying to public processions” in Section 15; and “police powers over meetings, processions and gatherings” under Section 17.

Since the “Occupy Central” protests were held without notice being given and in violation of a police order, the leaders and organizers could be charged with unauthorized assembly or illegal public meeting or gathering in violation of Section 17A of that ordinance.

Also, the movement had resorted to the use of threatening behavior prohibited by criminal law.

Subsection 1 under Section 23 “Blackmail” of the Theft Ordinance (Cap 210) states: “A person commits blackmail if, with a view to gain for himself or another or with intent to cause loss to another, and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief: (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand.”

Leaders of the “Occupy Central” movement had demanded the National People’s Congress Standing Committee (NPCSC) agree to their version of universal suffrage for the chief executive, and used “civil disobedience” as their deadliest weapon. The protests, which lasted 79 days, had caused Hong Kong serious social instability and huge economic losses. As far as our laws are concerned, civil disobedience can never be justifiably used to pursue such a demand. As the movement’s demand is not in conformity with the Basic Law, the menace may amount to the crime of blackmail.

Section 61 of the Crimes Ordinance (Cap 200), dealing with “threats to destroy or damage property”, states: “A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out: (a) to destroy or damage any property belonging to that other or a third person ... shall be guilty of an offence.”

The “Occupy” leaders had thus threatened the NPCSC by taking Hong Kong’s stability and prosperity hostage.

The last category falls under Sections 9-10 relating to sedition and Section 3 on “treasonable offences” of the Crimes Ordinance. But, with the limitation periods for both offenses (six and three months, respectively) having lapsed, deliberation on them would not be necessary.