Grenville Cross explains why people like Chris Patten are hypocritical for criticizing the 'Occupy' verdicts, saying public nuisance offenses in HK and overseas usually result in custodial sentences

Actions have consequences. Nine leaders of the "Occupy Central" movement, including its three co-founders, have now learnt this the hard way. They were convicted of various public nuisance offenses; eight of them have now been sentenced - some to immediate imprisonment. They can finally see that nobody is above the law, even if they have powerful friends around the world.

The public nuisance offense is an established feature of the legal landscape. Over the years, it has been deployed in defense of public rights. In 2008, for example, after a political activist, dressed as Spiderman, scaled the Tsing Ma Bridge, displaying banners and threatening to jump, and causing serious traffic disruption below, he was charged with public nuisance, and sentenced to six months' imprisonment.

Public nuisance is a common law offense, punishable with a maximum of seven years' imprisonment. It consists of an unlawful act which endangers the life, health, property or comfort of the public, or else obstructs the public in the exercise of rights common to everyone. This, of course, is exactly what happened during "Occupy Central" in 2014. This involved the unlawful obstruction of public places and roads for long periods, causing huge inconvenience to the public at large. As regards the mental element, there must be proof that the suspect knew, or ought to have known, the consequences of what he did.

After the guilty verdicts were announced, there was an orchestrated chorus of outrage. First out of the traps, as always, was the former governor Chris Patten. He claimed that, at a time when the government should be aiming to bring the community together, it seemed "appallingly divisive to use anachronistic common law charges in a vengeful pursuit of political events which took place in 2014". Patten, however, has been silent over the arrest of 1,056 protesters in the first eight days of London's ongoing Extinction Rebellion protests, and the subsequent charging of 53 of them. For him, it seems, police action to clear the streets is acceptable in London, but not in Hong Kong.

Hard on Patten's heels were America's veteran China bashers, Senator Marco Rubio and Representative James McGovern, who claimed that "peaceful political dissent" was being punished. This, of course, was sheer hypocrisy, and they know full well that anyone involved in paralyzing America's cities would face the full rigors of the law. Indeed, during the Occupy Wall Street protests in 2011, almost 8,000 protesters were arrested nationwide, with approximately 2,000 in New York alone, on charges of disorderly conduct, trespass and failure to disperse.

Had they any familiarity with Hong Kong's legal system, Patten, Rubio and McGovern would have appreciated that the decision to prosecute had nothing to do with the government, and that vindictiveness played no part. Under the Basic Law (Article 63), the Department of Justice controls criminal prosecutions, "free from any interference". Its highly professional lawyers will have studied the evidence carefully, and only authorized prosecutions once satisfied that it afforded a reasonable prospect of conviction. Given, moreover, the gravity of the offenses and their consequences, there was no question of prosecutors invoking the statutory nuisance charge. It only carries three months' imprisonment, and is basically concerned with hawkers and shopkeepers who obstruct footpaths and the like with their wares.

Patten, of course, is a regular critic of our legal system and, in particular, of the Department of Justice. Its "crime" is to have prosecuted people whose political causes he supports, but he must understand that even his allies cannot expect special treatment. Unfortunately, his twisted logic is again on display in his latest comments.

In particular, there is nothing "anachronistic" about the public nuisance offense, which has been of great utility. True, it is an old common law offense, but then so, for example, are the offenses of misconduct in public office and outraging public decency, both of which are often used by prosecutors. That an offense has a long pedigree is often an indication of its worth, not of its obsolescence.

In 2008, for example, 10 taxi drivers were convicted of public nuisance after they blocked vehicular access to the airport in protest at the government's taxi fare policy. However, on that occasion, Patten, who is invariably selective, had no complaints. Of greater concern, however, is his woeful ignorance of what his own courts have had to say about the offense.

In 2006, the UK's House of Lords decided that public nuisance is a legitimate offense, and that it satisfies the fair trial guarantees in the European Convention on Human Rights (R v Rimmington), which are also reflected in the Hong Kong Bill of Rights. Lord Thomas Bingham said that the offense was "clear, precise, adequately defined and based on a discernibly rational principle". He explained that provided a legal adviser who was asked to give an opinion in advance could ascertain if the act contemplated was likely to inflict significant threat on a substantial section of the public exercising their ordinary rights, then an obvious risk of causing a public nuisance would be apparent.

Patten's suggestion that criminal charges should not have been pursued because the offenses occurred in 2014 offends legal principles. Everyone is equal before the law and, even if it takes a while to investigate a large case with multiple suspects, and then to bring it on for trial after the defendants have delayed things, this cannot provide a shield from prosecution. The implication that leading figures responsible for the unlawful obstruction of public roads and places should have been allowed to escape their just deserts, when their followers have already been prosecuted, is irresponsible.

Anyone who deliberately breaks the law, or encourages others to do so, must expect to face justice. This, after all, is the essence of the rule of law. There can be no special treatment for particular well-connected people, even if they claim they acted for righteous reasons, or because they can mobilize anti-China lobbyists to their cause.

Instead of maligning the legal system, Patten should be praising the trial judge for his diligence. This was a massive case, with a huge amount of evidence, and many legal points were raised by the seven defense teams. In his 268-page judgment, the judge meticulously analyzed all the issues, and only entered convictions on those charges which had been proved beyond reasonable doubt, acquitting on the others. He should be commended for his zeal, not vilified.

As Patten must know, our judges are wholly independent, and apply the law without fear or favor. Upon appointment, they take an oath to "administer justice" impartially, and cases are determined on the basis of the evidence, the law, and the guiding principles. Since, moreover, the Basic Law (Article 85) provides judges with a guaranteed independence, they are able to discharge their duties from a secure constitutional base, which is reassuring for everyone appearing before them.

If the convicted persons choose to exercise their rights of appeal, they can challenge their convictions and sentences. They may or may not succeed, or they may succeed in part. Whatever the result, however, they can rest assured that their appeals will be considered by judges of the highest quality, who will ensure that proper conclusions are reached. Whatever outsiders may say, Hong Kong has a legal system with justice at its core, and one which stands tall in the Asia-Pacific region.

(HK Edition 04/25/2019 page8)