Dept of Justice Issued Statement Clarifying Melody Chan’s Bind-Over Order Is Not Political Persecution

Hong Kong Economic Journal

4th July, 2013

<Dept of Justice Issued Statement Clarifying Melody Chan’s Bind-Over Order Is Not Political Persecution>

陳玉峰守行為非關政治律政司發澄清此地無銀

The incident of “low-profile arrest” of Hong Kong Police finally came to an end! What I am talking about is the “low-profile arrest” of Melody Chan, the volunteer of Occupy Central’s secretariat, which the police has spent two years on. She was prosecuted for assisting in the organization and participation of illegal gatherings after 2011 71 demonstration. The case was “concluded” yesterday, Chan agreed the details of the case but pleaded not guilty, and the prosecution offered no evidence to prosecute. Chan at last quasi-self-signed the guarantees of HKD2,000 (USD256,4) and is under the bind-over order for one year, committed to maintain social peace within the period.

Kevin Zervos, The Director of Public Prosecutions of Department of Justice, told the court that it is a wrong conception that this case is a political prosecution. Chan restated afterwards outside the court that she has never evaded police, and so the police’s statement is not valid. But then the most bizarre is that the Department of Justice issued a high profile press release afterwards to “clarify”, it states clearly that “The defendant will face further sanctions if she breaches the promise, the maximum sentence is six months of imprisonment”. I cannot but to think that this one-year bind-over order leaps over to next year’s “Occupy Central Day” on 1st July, Chan will end up being imprisoned if she participates in it.

I have sought for advice from a barrister, that Chan only has to pay the “penalty” (guarantees) of HKD2,000 even if she violates the terms of the bind-over order, and this is related to imprisonment at all, the barrister also criticised this incomprehensible statement made by Department of Justice. Melody Chan, a volunteer with Occupy Central’s secretariat and a trainee solicitor, was charged with one count of assisting the holding of an unauthorised assembly and taking part in an unauthorised assembly during the 71 demonstration in 2011. It turned out that the time spent on “trial” is less than that on the arrest. The case was on hearings again yesterday, when Chan agreed the details of the case but pleaded not guilty, and the prosecution offered bind behaviour, and will not offer the evidence of prosecution. Magistrate allowed Chan to quasi-self-signed the guarantees of HKD2,000 and be bound over for 12 months. The guarantees will be forfeited if she committed similar offenses within the period.

Police has been arresting Chan using a “low-profile” tactic for nearly two years and explained that because she has been evading the police. Chan responded to this briefly when leaving the court. She stressed that she has not been trying to evade the police, and it is impossible not to be able to contact her if the police has the urgency to find her; she thinks that argument does not have grounds. She stated that police should work according to law and should fulfill its responsibilities and duties, she also reaffirmed that citizens have the rights not to answer or reply to police’s calls.

Has the police been facing such an immense difficulty for real to contact a “suspect” who often appears publicly? Or is there an inside story? Even though the police may have its own explanation and there will not be an absolute truth; but if we speculate that by common sense, I believe that the answer is very obvious!

Oddly enough, The Department of Justice which does not usually comment on individual cases has actually issued a press release yesterday evening to clarify because of public interest, that Chan’s statements made after the case were not with the facts. However there are at least three major fallacies in this press release and it makes us think that there are hidden political purposes.

The press releases titled as “Reaffirming that the Prosecution of Melody Chan is not a Political Decision”, which excerpts from The Director of Public Prosecutions Kevin Zervos’s speech in court, some briefs on the case and The Department of Justice’s response and so on. However, Chan’s statement made to the media yesterday has not mentioned that the prosecution is a political decision; and she has never expressed so ever since she had been arrested. Therefore the so-called “clarification” made by the Department of Justice is purely fictitious.

Long Hair (Kwok-hung Leung) criticised that it is a political prosecution but it has not been “clarified”. For the Department of Justice considers that certain statements made by Chan were not with the facts, the part of so-called “conflict” is in fact the part in the case summary, “The police has been trying to search for defendant (Melody Chan) and arrest her since January 2012 in order to proceed with prosecution. Police has tried to phone her for 20 times, twice of which police succeeded to contact with the defendant by phone informing her that she is about to be prosecuted, and invited her to the police station for prosecution procedure. The police has also visited the places in connection with the defendant for 10 times in order to find her. Police has also informed the defendant’s family that the police were looking for her, and provided her family with the contact information of the police. However, the defendant did not contact with the police.” The Department of Justice considered what Chan stressed to the media that she has never evaded the police is not consistent with the facts of the case, and that Chan and her lawyer had no objection in the court when Kevin Zervos stated that the time spent on prosecution was due to the fact that she has been evading the police.

It is not uncommon for the defendant to deny the merits of the case after the trial and outside of the courtroom, so Melody Chan is not the first person doing this. According to record, Chan has written in independent media in April 2011, she has talked about the choice of bind-over order and cited a case, that the defendant was not present in the scene at the time of the incident but has to admit what he/she had not done in the courtroom, how come the Department of Justice, which claimed that it “does not comment on individual case”, clarify this case? Furthermore, “not evading the police” is vastly different from “rejecting to take the initiative to contact the police”! Since The Director of Public Prosecutions Kevin Zervos has made it clear in court and responded to the case that “this is not a political prosecution,” the current press release about Chan’s denial about evading the police is simply unnecessary. The Legislative Councillor Kwok-hung Leung (Long Hair) has been prosecuted frequently in these few years and he often questioned the police about political prosecution against him outside of the court, but I have never seen the Department of Justice clarifying this!

What is more, the press release from The Department of Justice may possibly be misleading the public. From the third paragraph of the press release, “Kevin Zervos noted that the quasi-self-signed of the guarantees does not mean that the defendant can ‘do whatever she wants with impunity,’ because the defendant must be commit to maintain good behavior within 12 months. The defendant will face further sanctions if she breaches the promise, the maximum sentence is six months of imprisonment.” But the problem is, will there be such a consequence if this order is violated?

Binding over must first be explained regarding this matter. Barrister Albert Luk W.H. explained that in court proceedings, the “bind” effect is almost the same as the revocation of indictment, the defendant pleaded not guilty but agreed to the prosecution’s case, the prosecution would revoke the defendant’s offense; but the defendant would be “bound over” as “an exchange” and promise not to commit crimes or disturbing the public order for a period of time in the future, the defendant would not have a criminal record.

Here comes the question, is the defendant going to “face further sanctions” or even “maximum sentence is six months of imprisonment” if he/she breaches the promise?   The answer is “no.”

Luk pointed out that as both parties have agreed in the court, the defendant simply has to pay the guarantees of HKD2,000 if he/she commits offense in the probation period,  “each case should be viewed individually. As this case is over, there will not be any impact on the closed case even if any offenses are committed in the future; the statement of “further sanctions” simply does not have grounds. Both parties have agreed on the conditions inside of the court, which is a maximum penalty of HKD2,000, therefore the penalty of offenses in the future is HKD2,000 only, how come it involves imprisonment out of the blue?” He further explained that it does not mean that the conditions have been violated even a person under probation is arrested again, “The new case will be on trial according to the procedure, he/she would only need to pay that HKD2,000 if he/she is convicted.”

As for the press release quoted Kevin Zervos that the order does not mean to “allow the defendant to do whatever she wants with impunity.” But then the basic logic is that the prosecution agreed to drop the charges while at the same time is in the knowledge that the defendant pleaded not guilty; and “impunity” means “the law offenders can get away from legal sanctions.” Can such description be tenable in front of the Greek goddess Lady Justice which represents the rule of law?

Keyman

keyman@hkej.com

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