South China Morning Post
Comment›Insight & Opinion
Grenville Cross says while the government must make every effort to exercise restraint in the event of Occupy Central, law enforcement officers must nevertheless prepare for the worst
By failing to prepare,” said Benjamin Franklin, “you are preparing to fail.” As the much hyped plan by activists to occupy the Central district, in the hope of forcing Beijing to grant their demands for universal suffrage, draws ever closer, the authorities will be readying themselves. If thousands of protesters occupy Central’s main roads and paralyse the economy, the police, quite clearly, cannot tolerate this. Contingency planning will, by now, be well advanced.
Although Chief Executive Leung Chun-ying and his team have been criticised for describing Occupy Central in advance as unlawful, it would be strange if they did not, given that the wilful obstruction of public places is a criminal offence. After all, civil disobedience involves law-breaking, and, notwithstanding a peaceful intent, there is always a possibility that things will turn ugly. If radical elements hijack the event and resort to force, as happened, for example, in June when the Legislative Council’s chamber was stormed during a committee meeting on new town development, tensions might rapidly escalate.
No government can be expected simply to acquiesce in civil disobedience designed to damage the economy and force change. It is little wonder that some ministers have, to set an example, signed up to Robert Chow Yung’s anti-Occupy Central campaign. They would, in any event, have received legal advice from the Department of Justice as to the status of the proposed occupation, and whatever ministers have said will have reflected the advice given.
The police, of course, will be on the front line, and their preparations are already well advanced. In June, Security Secretary Lai Tung-kwok promised “robust action to uphold the rule of law and maintain public safety and public order”, and anti-riot drills have been held in the Tseung Kwan O Industrial Estate. Worst-case scenarios have been confronted, including the possibility of officers having to face petrol bombs.
During the protests against the World Trade Organisation meeting in the Convention and Exhibition Centre in December 2005, the police mobilised some 9,000 officers, roughly a third of their regular strength, to handle over 10,000 protesters, and a similar deployment may again become necessary.
The Department of Justice, likewise, will be bracing itself. A dedicated team of experienced prosecutors will be necessary, familiar with the public order laws and the human rights judgments, and available to provide the police with urgent advice around the clock.
Once cases arrive for possible prosecution, they will need to be processed as expeditiously as possible, with backlogs being avoided. In deciding whether to prosecute, sound judgment and common sense will be required, over and above the threshold test of evidential sufficiency. After all, even if there is enough evidence, it may not be in the public interest to prosecute, and, where possible, prosecution should be a sanction of last resort.
It would, clearly, not be desirable for the Department of Justice to prosecute thousands of activists, not least because this would clog up the courts for months, if not years. To prosecute large numbers of people would be a logistical nightmare, and tie up prosecutors, police officers and magistrates for weeks on end, to the detriment of the thousands of other cases awaiting trial. Even if, ultimately, convictions resulted, the sentences, in many cases, might well be light, such as a fine, and not such as to justify a large-scale (and expensive) prosecution.
Moreover, mass prosecutions, particularly of young people, could well be counterproductive, with people feeling sympathy for the accused. If a prosecution becomes unavoidable, then it should, where possible, involve the ringleaders and the most culpable, rather than the small fry.
The charges, moreover, will have to be carefully chosen. There will be a wide choice, and prosecutors will need to decide if the suspects should be charged with wilful obstruction of the roads, holding an unauthorised gathering, disorderly conduct, or, if violence erupts, with assault on the police, unlawful assembly and even riot. A suspect may, depending on the facts, be charged with multiple offences.
All these offences are punishable with imprisonment, and, if a case is particularly serious, it may have to be dealt with in the District Court, where a judge can impose up to seven years’ imprisonment, rather than in the Magistrate’s Court, where the maximum is only two years’ imprisonment.
The authorities, however, would be well advised to exercise great restraint, and to use alternatives to prosecution, where possible. In 2011, for example, although 113 people were suspected to have been involved in an unauthorised assembly arising from an anti-budget demonstration, only four of them were prosecuted. The remaining 109 were given formal warnings.
The judiciary, likewise, will need to prepare itself for a possible surge of cases. In 2005, for example, in anticipation of the WTO protests, a special court was arranged at the Kwun Tong magistracy, with flexible sitting times, and, when necessary, it sat in the evenings. A similar court (or courts) will again be needed to process cases initially. Thereafter, the cases can be assigned to the regular courts for trial.
Although the authorities must make every effort to minimise discord and defuse tensions, they have also to maintain the rule of law. Activists cannot expect to flout the law with impunity, particularly if they ignore warnings or seriously misbehave. Provided restraint is shown and the charging of suspects is not rushed into, the authorities will have done all that can reasonably be expected of them.
Both the police and the prosecutors may face great challenges, but, provided they are professional and exercise sound judgment, they will deserve the support of the community as they discharge their difficult duties on behalf of us all.
Grenville Cross SC, an honorary professor of law at the University of Hong Kong, is the vice-chairman of the senate of the International Association of Prosecutors. The views are those of the author