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People urged to consider safety, liability

June 12, 2014


Secretary for Security TK Lai

With the launch of the constitutional reform consultation, "Occupy Central" has aroused wide public concern. According to the Ci Hai Chinese dictionary, the meaning of "occupy" is to forcibly take possession of geographic space; to forcibly take control of a territory or a position. The word "occupy" has important implications that involve the controversy over "legal" or "illegal" and whether it will affect the various areas including people's living, social order, and the normal operation of the financial, industrial and commercial sectors including the hotel and tourism businesses, the financial stability of our economy and local and foreign investment.


As Secretary for Security, I have the responsibility to explain clearly to the public the nature of the "Occupy Central" movement and its impact on society and participants.


In an article entitled "The Most Lethal Weapon of Civil Disobedience" published in the Hong Kong Economic Journal on January 16, 2013, University of Hong Kong associate law professor Benny Tai advocated the use of non-violent and civil disobedience action to fight for true democracy. Up to 10,000 protestors will be unlawfully mustered to block the main roads in Central for a long period of time in a bid to paralyse the political and commercial heart of the city, aiming to force the Central Government to accede to their demand. 


The proposal has gained the support of Chinese University of Hong Kong associate professor Chan Kin-man and Hong Kong Alliance in Support of Patriotic Democratic Movements of China standing committee member Reverend Chu Yiu-ming.


Consequences may be dire

Up to now, it appears that many people in Hong Kong still do not understand clearly whether "Occupy Central" is an unlawful act and whether the organisers will be able to control the assembled people and make them follow their self-proclaimed principles of "non-violence" and "bearing legal liability". Also, they have not fully considered the consequence of paralysing Central, Hong Kong's political and commercial hub, with a large group of protestors, and whether the assembly will get out of control and turn into violence, endangering public order and safety.


Mr Tai noted that "Occupy Central" is a weapon with mass "disruption power". He said the number of participants is critical, and may force the Police to use a higher level of force and incur a higher political cost for the Government to deal with the movement. Ten thousand people or more can achieve such a purpose, to express their stance through civil disobedience, and to break the law, but without violence. Persistence is key. Resources will be deployed to block the main roads in Central. A broadcast centre will be set up to draw the attention of the public and the world through the Internet and the media with a view to mounting greater political pressure.


Civil disobedience is an unlawful act. Participants will be asked to make a pledge to bear the legal liability, and to surrender themselves to the Police after the blockade and let the authorities decide whether prosecution will be taken against them. These form an integral part of the political inspiration for the movement.


Two months later, on March 27, 2013, the three organisers unveiled the "Occupy Central" manifesto (Note 1) in which I noticed a modification to the fifth principle listed above, stating that people can participate in the movement in different modes:

* pledging support only and not needing to perform unlawful acts;

* not needing to surrender to the Police voluntarily after the blockade or file no defence at their trial; or

* surrendering to the Police after the blockade and filing no defence at their trial.


Participants may commit offences

In his article entitled "What Offences Could Be Committed By 'Occupy Central'?" published in Chinese on May 24, 2013, Mr Tai further pointed out that participants might commit the following offences:

* Section 4A of Summary Offences Ordinance: Any person who ... may obstruct, inconvenience or endanger, any person or vehicle in a public place shall be liable to a fine of $5,000 or to imprisonment for three months;

* under Section 7 and Section 17A(2) of the Public Order Ordinance, the "Occupy Central" should be considered as an unauthorised assembly. As such, Section 17A(3a) of the Public Order Ordinance will apply: that every person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in any such unauthorised assembly ... shall be guilty of an offence and shall be liable to imprisonment for five years on conviction on indictment; and to a fine of $5,000 and imprisonment for three years on summary conviction; and

* unlawful assembly which contravenes Section 18 of the Public Order Ordinance: When three or more persons, assembled together, conduct themselves in a disorderly manner ... to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly. Anyone found guilty shall be liable to imprisonment for five years on conviction on indictment; and to a fine of $5,000 and imprisonment for three years on summary conviction.


The article also mentioned that the penalty for persons on first conviction will likely be a fine or a few weeks' imprisonment or a suspended sentence. In other words, the organiser has admitted that "occupying Central by civil disobedience" is a law-breaking act. The legality of "Occupy Central" is definitely in question.


'Civil disobedience' not above the law

With a lack of natural resources, Hong Kong has become a world city largely due to the long-term efforts put together by generations across different sectors of the community. The success gained over the years is treasured by everyone. A law-abiding community is the cornerstone of our stability and prosperity. Everyone is equal before the law and every citizen should abide by the law. There is no justification for anyone for whatever reasons, including "civil disobedience", to be above the law.


Recently, there has been extensive media coverage about a case in which the Court of First Instance of the High Court reduced the sentences imposed on legislators Raymond Wong and Albert Chan who were convicted of unlawful assembly (HCMA 453/2013) to a fine. The presiding judge in his judgment quoted the trial Magistrate's reason for sentence as follows:


"Unless the court ruled that the law has violated the Basic Law or human rights, there has never been a single law in Hong Kong that people can choose to abide or not to abide. Even those with strong views on certain social issues should still be held liable for contravening criminal offences. No one is above the law, or else the rule of law as a core value of the society would be undermined ... Freedom of speech and freedom of demonstration and protest are the core values of Hong Kong, but the rule of law is equally important. Any unlawful or non-peaceful assembly could entail a tendency or a risk to jeopardise the rule of law in an open and extensive manner. The rule of law must not be jeopardised because instability is detrimental to the development of the society."


Violent crisis may emerge

 Do the organisers of "Occupy Central" have the ability to maintain the movement's non-violent nature? In view of the opinions recently expressed by various sectors of the community including the radical groups in media reports, I believe the answer is eminently clear.


After the Taiwan students' occupation of the Legislative Yuan and Executive Yuan, various groups have declared that they would occupy or besiege landmarks in Hong Kong, including the Central Government Offices and the Legislative Council. In an article entitled "Occupy Legislative Council & Occupy Central" by Mr Tai, published on March 25, in Apple Daily, he said: "In fact, there is no monopoly in taking protest actions. Occupy Central is not and should not be the only form of protest action by Hong Kong people. ... Protests will be diverse. Apart from the occupy movement, there will be various forms of protests. Not only in Central, the movement may take place in other locations including the Legislative Council. ... People will organise their own form of protests in support of each other to generate the greatest political effect."


On April 15, Apple Daily published another article by Mr Tai, "In Response to Queries of Older Generation on Occupy Central" in which he pointed that "Occupy Central" is a rally. They, being the organisers, could not guarantee the rally will be absolutely peaceful.


Below, I would like to quote part of the content of a Ming Pao editorial entitled, "The Radicals Alter the Nature of Occupy Central. Do Not Incite the Public to be the Porter", published on May 24.


"... Although the organisers of the Occupy Central do not agree that the movement has been hijacked ... the development of the movement is running counter to their subjective good intention. Now the radicals have taken over Occupy Central with only the proposals containing the element of civil nomination screened in and all the moderate proposals deliberately eliminated. The moderates have been marginalised and served as a foil to the radicals. ...According to the records, demonstrations held by the radicals have usually ended up in a disorderly manner. It is hard to believe that the radicals would scrupulously abide by the peaceful and non-violent principle when Occupy Central takes place. ...Hence, people who encourage the public to vote on June 22 should explain clearly to the public so that they are fully aware of their choices and will not lend unjustified support to the radicals."


Radicals may hijack movement

As the objectives, visions, strategies and means of expression of the protestors of public processions differ, the radicals will take the opportunity to hijack the movement and turn peaceful public meetings into violence, deviating from the organisers' original plan. During the Legislative Council Finance Committee meeting held on June 6 to examine the funding proposals for advance site formation and engineering infrastructure works at the Kwu Tung North New Development Area and the Fanling North New Development Area, the radicals dashed into the Legislative Council by force. The incident clearly shows how a peaceful demonstration can lose control, resulting in the emergence of violent crisis.


As the Secretary for Security, I have to point out that it is difficult to predict a rally's development once it starts. Once a violent confrontation occurs, the situation may become irrevocable and things could get out of control.


In view of the nature of "Occupy Central" and its possible consequences, I would like to remind the public that when considering joining the movement, whether as a participant or an onlooker, they have to consider carefully the personal safety issue and legal liability involved.


Lastly, we will ensure that the law enforcement agency will act in accordance with the law and will take robust action to uphold the rule of law and maintain public safety and public order.


This is an English translation of an article by Secretary for Security TK Lai that was published in Chinese in local newspapers today.