The Case of the WTO 'Rioters'

I am reading Jonathan Cheng's article in The Standard about the return of the 14 WTO rioters to Kwun Tong court today.  The interviewees are Simon Young, who teaches criminal law and evidence in Hong Kong University's Faculty of Law and Michael DeGolyer, professor of government and international studies at Hong Kong Baptist University.  With due respect, their issues are totally not my concern at all.  I don't care about Hong Kong's relationship with South Korea, or about the lessons that local protestors can learn.

First, let me present the situation as I see it.  From reading Hong Kong blogs and their comments, there is a sense for vengeance and justice.  We have all seen the repeated television clips of demonstrators kicking police shields, roping police officers, using steel barriers as battering rams, etc.  There were violent acts committed against the Hong Kong police, and those responsible must not be allowed to escape unpunished in in the name of rule of law.

Great!  We are all on board on this-- those responsible must be punished!

Now comes the big question -- are the fourteen people charged at this time the responsible persons?  The Standard seems to think so, because the headline is 'Questions remain as WTO rioters return to court.'  They have been pronounced as 'rioters' before the trial.

Unfortunately, the challenge here is that this characterization is subject to a great deal of doubt with respect to the evidence.  For one thing, the fourteen individuals are presently being charged with illegal assembly as opposed to 'rioting.'  And it is a mystery as to why 14 people were picked out of an assembly of 900 plus people to be charged with illegal assembly.  Were not the other 900 or so people in the same assembly?

How is such evidence usually collected elsewhere (say, in New York City during the Republican National Convention of 2004)?  If someone charges the police line, then there are in fact many undercover policemen mixed in among the rioters.  At a signal, they would rush and grab the targeted rioter, and move rapidly behind the police line.  The arrestee would be specifically identified at a specific place at a specific time by specific police officers as engaging in specific acts of violence recorded on videotape (note: there are police officers posing as television camera crews to take those videotapes).  The evidence is incontrovertible.

But what happened in Hong Kong?

Apparently, none of the fourteen were arrested in the manner described above.  Instead, more than 900 demonstrators were sequestered on Gloucester Road in Wanchai on the December 18th and then arrested en masse one after another over the course of eleven hours on live television.  Afterwards, the preliminary indications are that police officers identified 14 of these demonstrators as being those who had attacked assaulted them.  Think about this -- the police officers are going through a line-up of 900 plus demonstrators and picking out 14 people.

In the next phase of the identification process, the suspects are placed among a group of actors and the witnesses are supposed to pick them out.  It is known that the mainland Chinese person and the Taiwan person could not be picked out by the witnesses from among local Hong Kong actors.  In the case of the eleven Koreans and one Japanese, their lawyers have objected to the police line-up procedure because there were no Korean/Japanese-looking actors in the original line-up.  The judge concurred.  In a new line-up with presumably Korean/Japanese-looking people, only one of the Koreans was identified for posing as a video camera man.  Unfortunately, that identification is likely to be helpful to this person's case because this man had been accused of beating a police man with a wooden stick -- he would need a third hand in order to hit the policeman while holding a video camera in his hands (see InMediaHK).

This may mean that the principal evidence will have to come from the 61 hours of police videotapes and 900 plus photographs.  We have all seen the television clips, and the police videotapes would be similar.  You are going to be looking at a bunch of Korean farmers wearing the same hats, jackets, pants and goggles with handkerchiefs covering their face in the dark of the night.  Good luck on that!

So let us look at the rule of law as a public relations problem.

The fact is that the Hong Kong government has gone ahead to declare that there was a big disturbance out there in Wanchai, and that necessitated the detention of more than 900 people.  The arrest process received a great deal of publicity.  There are those who believed that it showed incompetence (that is, the police could not find enough buses, they did not have enough interpreters, they could not arrange for food, water and restroom facilities for the detainees as well as the police themselves), and there are others who thought that it was deliberately slowed down either for tactical or punitive reasons.  Regardless, everybody in the world knew that 900 plus persons were arrested because a big disturbance had occurred.

So far fourteen people have been charged and the rest of the detainees were released and long gone.  Let us look at a couple of options.

Option 1: The Hong Kong government finds the evidence for the case against the fourteen to be insufficient and lets them go.  This is a huge slap on the performance of the Hong Kong police.  Worse yet, people will think that they caved in to political pressures (note: even the Hungarians are protesting outside the Chinese embassy in Budapest).

Option 2: The Hong Kong government finds the evidence for the case against the fourteen to be insufficient but cannot possibly let them go.  So they will proceed ahead with an inadequate case, go through the charade, lose the trial badly but will proclaim victory for the rule of law.

Dear reader, where would you put your money?  Option 1 or 2?

Of course, I am in no position to tell you what the evidence is since I don't work for the prosecutors' office.  The evidence may just be overwhelming and convincing.  I suggest that we keep a good watch on this case.  My point here is that if (1) there was a disturbance out there and (2) there were 14 persons charged would not automatically mean that these were the right 14 people to be charged, or the charges were appropriate, or they should be so charged out of political necessity.  The editorial in Apple Daily characterized the police decision to detain the 900 plus people as "once you get on the back of the tiger, it is hard to get off."  So this is where we are.

There is also a separate aspect to this battle over public image of the rule of law in Hong Kong.  Ultimately, this is a battle for public opinion.  So here is a completely different kind of narrative that will never be seen in the English-language press.

[in translation, from InMediaHK by Oiwan Lam]

On the day after the mainstream media and the police collaborated to manufacture a 'riot' in which the police arrested 1,000 demonstrators, the Security Bureau invited some reporters for a dinner for the purpose of feeding them with information.  The reporters were told: "We can prosecute the anti-WTO demonstrators for rioting."

Here is the corresponding law.

(1) If any person who participates in an illegal assembly as defined according to article 18(1) should disturb social peace, then that assembly is a riot and all those assembled there are engaged in group rioting. (According to the 1970 number 31 (article 12) amendment).

(2) Anyone who participates in the riot is guilty of rioting. (a)  When formally prosecuted, the person may be jailed up to 10  years; and (b) When prosecuted under the simplified process, the person may be fined $5,000 and jailed 5 years.

Sing Pao and Ming Pao duly reported on the possibility of riot charges on December 19 and 20 respectively.  As Legislator James To said, it is easy to convict people of rioting.  On the first day of the demonstration when the demonstrators kicked the police shield, the police could have invoked it.  But this public security article was not invoked throughout the whole time.

According to some sources, the reporters at the Security Bureau dinner acted with conscience when they told the authorities not to escalate.  I disagree.  Actually, I believe that the Security Bureau held the dinner in order to test if the mainstream media would continue to play this 'riot' show.  Since most of the Hong Kong newspapers accepted the police version of a disturbance (note: with Ming Pao famous for its "Wanchai Has Fallen" headline), it would seem the "riot" charge would stick.

But the mainstream media did not go along with the "riot" charge.  Why?  Because they saw on December 18th that there were tens of thousands of citizens in the streets applauding the demonstrators.  If the streets had been deserted, they might have kept going with the 'riot' story too.  But the mainstream media backed away (which proved that they still have some political wisdom left).  In the absence of public and media opinion support and the presence of local and international pressure, the police did not bring up 'riot' charges against the 14.

But this incident lets us see how the 'riot' manufactured by the Hong Kong government and media threatens the human rights condition in Hong Kong. Even without the passage of Article 23, the government has a legal basis for jailing political dissidents for ten years.  The only monitor right now is media opinion, but that space is highly controlled and manipulated by government public relations activities.

Actually, the frontline reporters say that they do not believe there was a riot on the night of December 17th (see, for example, A man, a chicken, noodles and the cops), but they do not control the headlines.  Some reporters (such as the one from Ming Pao) tried to reflect the kinder and gentler side of the South Korean farmers.  By contrast, our professional journalists association is looking squarely at how media organizations are inappropriately using and re-arranging the reports from the frontline reporters to script a riot and refuses to utter a single word.

Thus, every day, we only get to read the most shameless lies such as the iron bolts from the sling shots (see The Sling Shot at the Hong Kong WTO), the revenge from the South Korean farmers, etc.

Enough with the predictions for here is the actual outcome.

(South China Morning Post)  Charges dropped against 11 of 14 protesters arrested after WTO riot.  By Lauren Crothers.  January 11, 2006.

Eleven of the 14 WTO protesters — who were charged with unlawful assembly during last year’s World Trade Organisation protests — had their charges dropped in Kwun Tong Magistrates’ Court on Wednesday.  The protesters had clashed with police in one of the most angry demonstrations on December 18 — dubbed “the Siege of Wanchai”.

The charge of unlawful assembly was handed to those protesters alleged to have been involved in violent altercations with police during the most militant day of protests. At times, the demonstrators had hurled wooden beams and charged police lines. Officers were forced to retaliate with pepper spray, batons, tear gas and water cannons. A number of people were injured.  The three remaining defendants initially charged with unlawful assembly are Park In-wan, 31, Yun Il-kwon,36, and Yang Kyung-kyu, 46. Yang has had his charge altered to unauthorised assembly.  The offence carries a maximum penalty of five years in prison.

(Ming Pao, Sing Tao)

[in translation]  According to a veteran police officer, there are usually three ways for the police to arrange for identification.  The first way is the most typical and acceptable -- through a concensual agreement between the police and the suspect, the witness is stationed behind a one-way mirror and the suspect is inserted into a line-up with seven similar-looking 'actors.'  The second way is when the two sides are non-consenual -- the suspect is placed in a room with various other types of actors.  The third way is a confrontation in which the suspect faces the witness directly.  On this occasion, the police used the confrontation method, which is regarded as having the lowest degree of trustworthiness in terms of evidence.

According to a defense lawyer Cheung Yiu-leung, the police had not been able to use actors.  There are just over 10,000 Koreans in Hong Kong, at least half are women and children and the men are mostly bankers and clerks.  It is hard to find people who look like Korean farmers.  Therefore, about 10 days ago, the police finally decided to use the confrontation method of identification.

Cheung said that the police had previously asserted at the preliminary hearing that it has 80 police witnesses.  None of the 80 persons were able to identify any of the four suspects.  Afterwards, the police brought in many more of the other officers on duty.  The 14 defendants were told to stand in a line and the officers looked at all of them (and only them), and then three people were identified.  One of them was identified by four police witnesses and another was identified by one police witness.  There was a third person identified too, but he had proof of not being at the scene and was therefore not charged.  The union leader was also charged even though he was not identified.

(Ming Pao, Apple Daily)

[in translation]  The charge of "illegal assembly" against Park Inh-wan and Yun Ilk-wa refers to the particpants having disrupted social order during the assembly.  Even if the assembly were legal, if three or more of the attendees engaged in activities of a disruptive, threatening or inflammatory nature for the purpose of damaging social peace, this would be against the law.  According to the prosecution, on December 17, the two defendants were accused of being in Central Plaza across Fleming Road with other unknown persons giving out threatening, insulting and provocative speeches in order to disrupt social peace.

The charge of "unauthorised assembly" against the union leader Yang Kyung-kyu depends on whether the assembly had prior authorisation and whether the attendees refused to obey police directives at the scene.  Yang is accused of assembling without authorisation at the intersection of Lockhart and Marsh Roads.

[Blogger's note: Please bear in mind that 900 plus persons were arrested at the same assembly, and that an unknown number of others were released on the sole grounds that they had Hong Kong ID cards.  None of the others are being charged with 'illegal assembly' or 'unauthorised assembely' despite being in the same assembly.]

Postscript:  Doug Crets at The Standard provided background information about the three defendants.  (See The Standard)

Yang Kyung Kyu, 48, is the vice president of the Korean Confederation of Trade Unions and president of the Korean Public and Social Services Union ... Park In Hwan belongs to the militant Korean Peasants' League, which represents the bulk of the nearly 1,000 Koreans taken into custody during the mass arrests on December 17-18 ... Yun Il Kwon also belongs to the Korean Peasants' League ...

The rule of law means that the background information is absolutely irrelevant to their cases.  The only criterion should be whether the police can produce sufficient evidence to support the charges against them.

(Ming Pao via Yahoo! News)

There was apparently a twist during the process.  At one point, Yang Kyung-kyu was willing to plead guilty to the charge of unauthorised assembly.  Meanwhile, Yun Ilk-wa would have pled guilty to the charge of illegal assembly including the fact that he threw mud at the police.  However, the police added in the description an additional description of assaulting a police officer with a wooden pole.  Yun objected to that description and would not agree.  Out of solidarity, Yang then changed his plea to 'not guilty.'