Chow Hang Tung Conviction: Magistrate Mischaracterizes Facts, Conceals Police Misconduct

Another day, Another troublesome conviction

中文版

My work is supported by optional subscriptions from readers. If you like my newsletter, will you consider becoming a free or paid subscriber?

Chow Hang-Tung

Today, Magistrate Amy Chan Wai-mun convicted democracy activist and barrister Chow Hang Tung of inciting others to attend a prohibited June 4, 2021 assembly in honor of the victims of the 1989 Tiananmen Square crackdown. Magistrate Chan sentenced Chow to 15 months in prison (with five served concurrently)—a remarkably long sentence for supposedly encouraging people to gather peacefully in a park.[1]

Chow represented herself and made a range of legal and factual arguments, but I will focus in this article on one disturbing aspect of Magistrate Chan’s ruling: her clear misstatements of several exculpatory facts. Magistrate Chan claimed that the Police arrested Chow based on an article they didn’t even know about, and omitted exculpatory portions of a key online statement in the case: a social media post by Chow supposedly calling on others to join an unlawful protest.

Magistrate Chan’s manipulations are, sadly, a product of the convict-at-all-costs mentality that has infected so many in the judiciary. But there is strong evidence here supporting an additional possible motive for Magistrate Chan’s misconduct:  protecting the Hong Kong Police by concealing that their arrest of Chow was unlawful.

First, a bit of background

As I discussed in a previous post, Chow’s organization, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, or Hong Kong Alliance for short, was established shortly after the Tiananmen crackdown to preserve the memory of the 1989 student movement and advocate for Chinese democracy. Every year since 1990 on the June 4th anniversary of the crackdown, the Alliance has organized a candlelight vigil in Hong Kong’s Victoria Park regularly attended by tens of thousands of people. It has long been an accepted Hong Kong tradition, and a proud exercise of the city’s civil liberties.

In 2020, in the midst of the Government’s crackdown on Hong Kong society, for the first time the police refused to approve the vigil. Despite detailed plans for social distancing, the police cited Covid for their denial. A crowd still went to Victoria Park and lit candles, and a number of leaders (including Chow) were charged and convicted for supposedly inciting the rally—though, as I’ve written, at least some of these convictions were wrong.  

In 2021, the police once again denied approval for the vigil, citing Covid for a second year in a row. This time, they took no chances. On the morning of June 4, the Police arrested Chow near her office, then in the evening they deployed hundreds of officers in Victoria Park. No vigil took place, lawful or otherwise, in Victoria Park that night.

In the few months since then, Hong Kong Alliance has been shut down, its leaders imprisoned without trial, and all public memorials paying tribute to Tiananmen Square victims removed. It’s safe to say that no vigil will be taking place this June, either.

The case against Chow

Chow’s 2021 incitement charge was based on two statements she published about the vigil: a social media post to Facebook and Twitter on May 29, 2021, after the Police rejected Hong Kong Alliance’s application for the public gathering, and a June 4, 2021, opinion article she wrote for a local paper, Mingpao.

In the case of the May 29 social media posts, Chow wrote that “the Government can prohibit gathering in a venue, but it cannot prohibit lighting candles in every corner of Hong Kong.” It could not have been clearer in these posts that Chow was encouraging people only to lawfully light candles wherever they were, without gathering in Victoria Park.

The June 4 Mingpao article is somewhat more ambiguous. It does not include the statement encouraging people to light candles in every corner of Hong Kong, and Chow spends the bulk of the article talking about the importance of Victoria Park itself to the annual vigil. She then concludes by writing, “At 8:00 p.m. tonight, I hope to see your candlelight.”

While the case for incitement using the Mingpao article wasn’t strong, particularly given the requirement for the prosecution to prove intent beyond a reasonable doubt, it was certainly better than the case for the May 29 social media posts. Yet, Magistrate Chan ruled that both statements constituted incitement.

Why rule this way? Why not just maintain some semblance of credibility by convicting for the June 4 Mingpao article but not the May 29 social media post? Part of the reason is simply because there seem to be a great many magistrates and district court judges in recent months who have lost the will to make nuanced rulings—these court officials don’t just find in favor of the prosecution, every single factual and legal finding of the case must come down in the prosecution’s favor as well.

But here, there is an additional possible reason: The Police arrested Chow solely based on the May 29th social media posts, and did not even know about the Mingpao article at the time of the arrest. Since the social media posts are so plainly exculpatory, a ruling that only the June 4 article constituted incitement would have implicated the Police in an unlawful arrest of Chow.

“Preventative detention” by the police is illegal in Hong Kong

Without reasonable cause to believe a person has already committed a crime, the Police have very limited powers to detain someone. Under the Police Force Ordinance s. 54, the police can detain someone if the person has acted in a suspicious manner in a public place. The detention can only last long enough to enquire as to whether any offence has taken place and to conduct a search. The police cannot undertake what is called a “preventative detention”: detaining someone who they believe will later commit a crime until after the time of the possible crime has passed.

If the police only arrested Chow to prevent her from attending an unauthorized rally, rather than because they had reasonable cause to believe she had already committed a crime, then the arrest was unlawful.

The Police didn’t even know about the June 4th Mingpao article when they arrested Chow

Mingpao has a helpful habit of writing the time of publication into the titles of its articles. As you can see below, the Chow article was published at 9:00 a.m. on June 4th.

Chow’s Mingpao article was published at 9:00am

Yet Chow was arrested well before that, with news articles coming out as early as 8:19 a.m that Chow had been arrested:

RTHK published an article about Chow’s arrest at 8:19am

AFP’s Xinqi Su was with Chow on June 4, and at the time she pinpointed the time of arrest even more precisely: around 7:40am, 80 minutes before online publication of the Mingpao article.

Xinqi Su 蘇昕琪 @XinqiSu

#BREAKING Chow Hang Tung was taken away by at least 4 police officers with 2 private vehicle around 7.40am this morning outside her office building . Police refused to tell an @AFP correspondent at the scene in what name they were arresting her. More to follow...

Could it be that the Police knew about the Mingpao article and made the arrest on that basis? Nope: At a midday press conference, the Police were still claiming that only the social media posts were a problem: As stated by Police Senior Superintendent Terry Law, “[Chow and another arrestee] were found to have used their social media accounts to advertise or publicize a public meeting that had been prohibited by the police.” No mention of any news articles.

Could the police have already seen the paper version of Mingpao, which was printed in early morning? Unlikely. Even if the paper version had been distributed by the time of the arrest, the Police had not seen it. Senior Superintendent Law’s statement later in the day makes clear that their review was only of online content, and that the online social media posts were the only basis for the arrest.

By the Police Force’s own admission, Chow’s arrest was based solely on the harmless May 29 post in which she explicitly called on people to light candles across the city rather than at Victoria Park.

Magistrate Chan’s manipulation of the facts

There were two ways Magistrate Chan could get around this problem if her intention was to shield the police from accusations of wrongdoing: Either rule incorrectly that the May 29 social media post did constitute incitement despite its clear statements to the contrary, or rule incorrectly that the June 4 Mingpao article was seen by police before Chow’s arrest. Magistrate Chan chose to do both.

Mischaracterization of the timeline of arrest

At paragraph 52 in her ruling, Magistrate Chan states that Chow was not arrested to prevent her from attending the assembly, but rather “the incitement involved in the case was completed by publishing an article in the newspaper [Mingpao] on June 4th, 2021—that is, after the crime was completed she was arrested.” The magistrate concluded at paragraph 56: “I believe that the police acting quickly to arrest Chow [after the Mingpao publication] on June 4th, 2021, was the necessary and correct decision.”

This, of course, is directly contradicted by the timeline and Police Force’s stated basis for the arrest as described above.

Omission of exculpatory statements in the May 29th social media posts

At paragraph 64 in her ruling, Magistrate Chan provided a chart of what she claimed were all the relevant lines of Chow’s social media posts (translated into English by Reuters reporter Jessie Pang here).  I’ve created my own chart below with Magistrate Chan’s version of the social media posts on the left, and my translation of the full, original social media posts on the right. In the originals, I’ve highlighted all the portions Magistrate Chan omitted from her version:

The deception is obvious. Magistrate Chan cut out entirely the exculpatory statement from Chow inviting people to light candles “in every corner of Hong Kong”—not in an unauthorized gathering at Victoria Park. Other omissions are also problematic. In the second sentence, Chow stated that Hong Kong Alliance would not be hosting an event at Victoria Park. And Chow emphasized that her own plan to light a candle was something she would only “state in [her] own name.” Yet somehow, Magistrate Chan considered these critical statements irrelevant enough to leave them out of her version of the social media posts.

Using her incomplete version, Magistrate Chan ruled that the social media posts, like the Mingpao article, constituted incitement. In so finding, at paragraph 67 of the decision the magistrate stated outright that there was no discussion in the social media posts of “lighting a candle at any place.” As the full version shows, there clearly was such a discussion.

The reason for the magistrate’s misconduct

This brings us back to the arrest of Chow on the morning of June 4th. If Magistrate Chan had presented the facts as they were, rather than manipulating them, it would have shown incontrovertibly that the Police, at the time they arrested Chow, had no basis to do so. The police blamed the arrest on a social media post in which Chow had stated clearly that people should light candles across Hong Kong rather than at Victoria Park. They had no knowledge of the Mingpao article that was later added to the allegations against Chow. (As flimsy as that evidence would have been, it might have at least created enough suspicion to warrant detention and questioning.)

The only explanation for the Police arresting Chow that day was an unlawful, mainland-style preventative detention of a “troublemaker” in anticipation of an upcoming political event.

Magistrate Chan could have done her duty and dismissed the charges based on the unlawful arrest. Instead, she chose to manipulate the evidence to fit the result the Police and DOJ wanted her to reach.

The worrisome state of the Hong Kong judiciary

Perhaps the saddest thing here is that in Hong Kong in 2022, a magistrate manipulating evidence to obtain a conviction and hide an unlawful arrest isn’t even really surprising.

A final anecdote from the trial reveals much about the disconnect between magistrates like Ms. Chan and the defendants whose lives they impact. At trial, Chow told Magistrate Chan that she would prepare and present her own testimony, despite being held in prison without bail on national security charges. Magistrate Chan then asked her if she had internet access in prison, causing the gallery to erupt in laughter.

But really, the magistrate’s cluelessness about the sorry state of the prisons where she regularly condemns defendants to spend years of their lives was no laughing matter. It is indicative of the mindset of far too many magistrates and judges in Hong Kong intent on convicting at all costs, no matter the facts or the strength of the evidence. The consequences for the actual people that appear in front of them, and the suffering they will be put through in prison, are irrelevant.

---

[1] While not the subject of this article, during sentencing there was another problematic exchange between the prosecutor and Magistrate Chan. The prosecutor informed her that her justification for increasing the sentence by 3 months—that Chow was on bail at the time of the offence—was in error, and Chow was not on bail at the time. Instead of removing the 3 months, Chan came up with a new justification for it on the spot. The exchange suggested that the 15-month sentence had been predetermined, and the facts were being manipulated to fit the sentence.