Tony Shen: Response to Chris Patten’s Comments on the Imprisonment of Three Student Activists

Former Governor of Hong Kong Lord Patten penned an open letter condemning the Hong Kong government for the imprisonment of Joshua Wong and two other student activists. Benedict Rogers, deputy chair of the Conservative Party Human Rights Commission, echoed Patten’s concern that Beijing is “tightening its grip on Hong Kong’s aspirations to remain a free society”.

Lord Patten quoted an ancient Chinese anthem that warned against three foolish things and personally added a fourth in his new book “First Confession: A Sort of Memoir”. I might add a fifth foolish thing – engaging in a political argument with Lord Patten. Lord Patten is a seasoned politician who left his footprint from Northern Ireland to Brussels to Hong Kong. However, regarding his open letter on Financial Times, I must beg to differ.

It is appalling how Lord Patten and Mr. Rogers exercised double standards when commenting on the imprisonment of the three student activists. Lord Patten should well remember the UK miner’s strike of 1984-85. As a Conservative minister under Margaret Thatcher at the time, Patten called the campaign to defeat Arthur Scargill “deeply troubling” and yet “necessary”. Many differences exist between the Umbrella Movement and the miner’s strike, but one parallel that can be drawn is the extent to which both societies were disrupted by the protests. Why then, is it “deplorable” for the Department of Justice to seek review of the sentences, when it was “necessary” for over 8000 workers to be charged and hundreds to be imprisoned in the aftermath of the miner’s movement?

No one in good faith can brand the Department of Justice’s decision to appeal against the previous sentences through perfectly legal channels as a “vindictive move” and a “political decision”. There is little dispute that the student activists are guilty of taking part and inciting others to take part in an unlawful assembly on the night of 26th September 2014. In fact, that was exactly what they aimed to do as part of their civil disobedience movement. Breaking the law is implicit in civil disobedience, but so is the willing embrace of the legal consequences. Not being able to stand for election due to their imprisonment should be an expected consequence, rather than some sort of political vengeance. Moreover, appellate procedure is a core part of the rule of law. Hence the Department of Justice’s action is upholding Hong Kong’s rule of law, as opposed to subverting it.

As to Mr. Roger’s letter, by relegating the pro-government supporters in Hong Kong to merely “henchmen” of the Chinese regime, Mr. Rogers is blatantly likening the relationship between Beijing and Hong Kong to that between a master and a subordinate. Every argument of his thereafter is thus based on the premise that the independence of the judiciary in Hong Kong is but a “charade”. However, the patronization demonstrated by Mr. Rogers here is quite demeaning. The phrases he quoted from the June white paper are out of context; when pieced together, they paint a picture that conveniently feeds his pre-established narrative which suggests an on-going democratic backsliding in Hong Kong. He fails to understand that it is precisely China’s “complete jurisdiction over Hong Kong” that allows China to delegate “the high degree of autonomy” to Hong Kong as promised in the Joint Declaration and the Basic Law. The two principles co-exist in harmony, and the latter is dependent on the existence of the former. Therefore, the white paper only serves to emphasize the indispensable role the “One Country Two Systems” framework plays in Hong Kong. Referencing this white paper to accuse China of encroaching on Hong Kong’s rule of law is a mistaken interpretation of the document and proves that Mr. Rogers has a flawed understanding of the political landscape in Hong Kong and China.

Also, Mr. Rogers’ tendency to assert moral high ground is ludicrous. His derogatory narrative gives the false impression that the façade of Hong Kong’s rule of law is all that is left now in Hong Kong’s long, proud history of judicial independence. However, the reality is quite the opposite. Hong Kong ranks consistently high in the World Justice Report’s rule of law ranking in recent years. On the other hand, law was used to legitimize racial segregation and deepen discrimination and marginalization in most of the colonial ages, and the rule of law was almost non-existent until the latter half of the 20th century.

In addition, the Department of Justice’s decision to appeal against the non-custodial sentences passed on the activists does not breach the principle of “double jeopardy”, contrary to what Mr. Rogers asserted. This is because discounts were already applied to the jail sentences imposed on the student activists based on the hours of community service they already served. Also, the applications for review of sentences were instituted before the defendants completed their community service sentences.

It is interesting how neither Lord Patten nor Mr. Rogers mentioned the discounts applied to the sentences. In fact, Lord Patten’s letter was published on the 29th of August, while the English version of the judgment that jailed the student activists was only released on the 30th. The dates simply don’t add up. The most plausible explanation then, is that Lord Patten was jumping to conclusions without even reading the judgment when he wrote his letter. What is Lord Patten’s source of information then? Given how overtly biased both Lord Patten and Mr. Rogers’ views are, it seems only logical that the prevalent view on this issue in the West has been hijacked by the disingenuous few who seized the window before the English version of the judgment was released and gave a distorted, misleading account of the judgment to the West. Lord Patten and Mr. Rogers are certainly entitled to their own opinions, but they must also recognize the danger of jumping to conclusions without scrutinizing the intricacies of the judgment.

Tony Shen
OCTS Youth Forum