The court rejects dropping double incitement charge against Umbrella Movement defendants

The charge of inciting people to incite others to commit public nuisance against the "Occupy Central" founding trio, Benny Tai Yiu-ting, Chan Kin-man and Chu Yiu-ming, was ruled  "constitutional" by the court this morning.

Judge Johnny Chan Jong-herng believed that the charge "exists in the common law", saying that there is nothing "uncertain" and "unconstitutional" of the charge.

The trio, Tai, Chan and Chu, was accused of three charges altogether: (1) conspiracy to commit public nuisance, (2) incitement to commit public nuisance and (3) inciting people to incite others to commit public nuisance.

Defence Senior Counsel Gerard McCoy had argued that the third charge, inciting people to incite others to commit public nuisance, was neither justiciable nor constitutional in previous trials, and thus proposing a motion to rescind this charge.

The judge was not convinced though, saying that inciting people to incite others is different from inciting to commit public nuisance and "cannot be treated in one single charge".

Chan Kin-man, one of the Occupy Central founders, expressed his disappointment to the court after the hearing.

"We are disappointed that the court accepts the incitement to incite is a lawful charge in this case," he said. "This is unprecedented."

McCoy had previously argued that the prosecutor failed to provide detailed information such as the identity of involved people. But the judge stated that the prosecutor had made it clear.

"Adequate and appropriate information has been given," said the judge.

There had been a discussion about whether the single trial for the nine defendants could be split. The judge eventually decided to stay as a bound trial, implying that all nine defendants are to be tried and testified together even though Raphael Wong Ho-ming and Lee Wing-tat were accused of committing the crimes in places different from the rest.

The judge also compared the incitement to a robbery case during the judgement announcement, saying that the charges were "substantive".

The other defendants, Legislative Councillors Tanya Chan and Shiu Ka-chun, former student leaders Tommy Cheung Sau-yin and Eason Chung Yiu-wah and activist Raphael Wong Ho-ming share the Occupy Central trio's second and third charges. Former Legislative Councillors Lee Wing-tat is only facing incitement to commit public nuisance.

The Occupy Central founders also worried about the impact of this case on the freedom of speech because all these charges were related to the speeches they had made before and during the 2014 Occupy Movement.

"If at the end we are found guilty, then it might really infringe on the freedom of speech protected by the Basic Law," said Chan Kin-man. "So, we are going to defend it."

"We always stick to our non-violent spirit ever since the occupation," said Benny Tai. "And we believe the court will take the basic civil disobedience principle into account."

Supporters gathered outside the West Kowloon Law Courts Building before the hearing, shouting "Shame on political prosecution!" loudly together with the nine defendants.

Before the hearing started, supporters and ousted Legislative Councillor Leung Kwok-hung gave applause to Raphael Wong at the courtroom since he had already been imprisoned for another case related to the occupation.

Wong called out "I love you!" in return.

The next pre-trial review is scheduled for September 17 this year to inform the court about the number of witnesses.

The four-working-week trial is also scheduled for November 19 to December 14 this year. It is assumed that a total of 46 hours of video clips will be played during the prosecution procedure, but that is to be discussed during the pre-trial review.

(DCCC480/2017)