Since September 2014 thousands of citizens in Hong Kong protested against the so called “proposed electoral reform” decided by the Chinese National People’s Congress which doesn’t allow civil nomination of candidates to the post of the Chief Executive of Hong Kong. The protesters blocked the east-west arterial routes. The group Occupy Central With Love and Peace (OCLP) called for a civil disobedience campaign. In the following is the “Manual of Desobedience” of OCLP.
(2) Rules for Non-Violent Protest
(1) Guidance Note on Legal Matters
OCLP is a peaceful movement of civil disobedience, the purpose of which is to inspire other people in the society, to let them see some of the injustices in the law or the current system, and to motivate them to support correcting all the injustices. Those participating in civil disobedience are going to challenge the injustices in the law or the system by means of a restricted scope of unlawful conducts and will bear the legal consequences of their unlawful conducts. This is to demonstrate the commitment of Hong Kong citizens to fight for universal suffrage even in the face of bearing legal liabilities, as well as to galvanize the rest of the society. Although we are willing to bear the legal consequences of our conduct, we must also understand the relevant sections of the law, protect individual as well as collective rights, and be cautious in our actions, so as to prevent unnecessary liabilities and conflicts.
1.1 Sections the Prosecution may use against the Rally
1) Obstruction of public places: Section 4A of the Summary Offences Ordinance, Cap. 228 of the Laws of Hong Kong
2) Unauthorized assembly: Section 17A of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong
3)* Unlawful assembly: Section 18 of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong
4)* Disorder in public places: Section 17B of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong
*: Participants will not contravene these sections if they are able to uphold OCLP’s conviction of non-violence
1.1.1 Obstruction of public places
Section 4A of the Summary Offences Ordinance, Cap. 228 of the Laws of Hong Kong:
“Any person who without lawful authority or excuse sets out or leaves, or causes to be set out or left, any matter or thing which obstructs, inconveniences or endangers, or may obstruct, inconvenience or endanger, any person or vehicle in a public place shall be liable to a fine of $5000 or to imprisonment for 3 months.”
There will be a criminal record in the event of being prosecuted and convicted of the offence. Most first time offenders will only be fined.
1.1.2 Unauthorized assembly
Section 17A(3)(a) of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong
Section 7 of the Public Order Ordinance provides that a meeting of more than 50 persons may take place only if an application for a Letter of No Objection is made to the Commissioner of Police under section 8 of the Public Order Ordinance. Section 9 of the Public Order Ordinance gives the Commissioner of Police the power to prohibit the holding of any public meeting notified under section 8 in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.
According to Section 17A(3)(a) of the Public Order Ordinance, Cap. 245 of the Laws of Hong Kong, Occupy Central is an unauthorized assembly and “every person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in or forms or continues to form part of any such unauthorized assembly… shall be guilty of an offence and shall be liable – (i) on conviction on indictment, to imprisonment for 5 years; and (ii) on summary conviction, to a fine at level 2 and to imprisonment for 3 years.”
There will be a criminal record in the event of being prosecuted and convicted of the offence. Most first time offenders will be fined, or may be imprisoned for several weeks, but the sentence may also be suspended.
1.1.3 Unlawful assembly
According to Section 18 of the Public Order Ordinance, “When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly. – (a) on conviction on indictment, to imprisonment for 5 years; and (b) on summary conviction, to a fine at level 2 and to imprisonment for 3 years.”
If participants of OCLP only stand or sit on the road without doing anything and uphold the spirit of non-violence, calmness and peace, then the chances of committing the offence of unlawful assembly due to participating in OCLP should not be high.
1.1.4 Disorder in public places
Section 17B of the Public Order Ordinance provides, “(1) Any person who at any public gathering acts in a disorderly manner for the purpose of preventing the transaction of the business for which the public gathering was called together or incites others so to act shall be guilty of an offence and shall be liable on conviction to a fine at level 2 and to imprisonment for 12 months” or “(2) Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine at level 2 and to imprisonment for 12 months.”
As with the offence of unlawful assembly, if we can uphold the OCLP spirit of non-violence, the chance of committing this offence is not high.
(2) Guidance Note for the Arrested
2.1 Before Participating
Prepare an emergency contact who is not going to participate in the rally and let him know of your full name in English and Chinese as well as your ID card number so that he will be able to contact OCLP or arrange for legal assistance upon losing contact with you or knowing of your arrest;
Draft an SMS message beforehand detailing your full name in English and Chinese as well as your ID Card number so that you can send it to the OCLP support hotline right before your arrest;
Prepare a simple change of clothes and a warm jacket;
If you have any chronic illness or special medical needs, you may bring a medical certificate with you;
Upon being arrested, the police will detain all your articles and personal property, so you should consider not bringing any sensitive materials or information with you;
The mobile phone you plan to bring should not contain any sensitive information about the rally or a large amount of personal data.
2.2 Being Arrested
The police will first announce that the assembly or rally is an unauthorised assembly, read out the relevant sections of the Public Order Ordinance, and call on those present to leave or else face further actions by the police.
If those present do not leave, the police will issue one last warning, declare the rally to be an unlawful one, and announce its intention to take imminent enforcement action. The police will surround those present and may prohibit anyone from leaving the area before it begins clearing the area.
Once the police has begun clearing the area, in the absence of any conflict or violence, the police can only use minimal force in removing the protestors. Before removing the protestor, the officer will first ask whether the protestor would get on the police car voluntarily. If the protestor does so voluntarily, the officer will not use any force; if the protestor insists on staying, the police will remove him by a group of four officers each lifting one of the limbs of the protestor. While carrying the protestor, regardless of whether the protestor resists, the officers will perform a wristlock by bending and/or twisting the wrists of the protestor. Protestors are advised to relax their bodies at this time in order to avoid any injuries and to avoid legitimatising the officers’ actions or their use of an enhanced level of force. On the way to the police car, OCLP will have volunteers at the scene to collect names of the arrestees (if they are not prevented from so doing by the police). Please follow the requests by OCLP volunteers and speak out the names loudly so that they may arrange for legal assistance for the arrestees.
After getting on the police car, depending on the circumstances at the time, the officer may or may not begin the registration process. The person arrested may ask to which police station he is going to be taken.
Upon arrival at the police station or the temporary detention centre, the police will begin registration in batches, recording each person’s name, age, height, occupation, address and contact number (personal or residential). The police will also provide the reasons for the arrest, so the person arrested will know the offence(s) he may be charged with in the future. The officer will ask whether there is any need for them to contact the relatives of the person arrested and the person arrested is free to choose either way. During registration, the officer will provide a plastic bag for the person arrested to store any of his personal articles as he wishes. Once sealed, the person arrested can keep the plastic bag with him, and it will not be unsealed without the prior approval of the person arrested and the announcement by the police upon release. The plastic bag cannot be opened prior to the unsealing and the release of the person arrested. The person arrested can ask for more than one plastic bag and may decide to put different components of an item (e.g. the mobile phone, its battery, and the SIM card) into different bags.
After the registration and sealing of plastic bags, the police will arrange for the person arrested to have his picture taken in the photo-taking room. If a large number of people have been arrested at the same time, the police will simplify the process by taking polaroids during the registration process. After that, the police will arrange for statements to be taken and for the person arrested to meet a lawyer. The person arrested can insist that his statement be taken in the presence of his lawyer. If a large number of people have been arrested at the same time, the police may not necessarily demand that a statement be taken from the person arrested, but the police must arrange for the person arrested to meet his lawyer.
After the procedure described above, the arrest procedure is all but finished. If the person arrested only receives a warning (typically a mere participant of the rally) without the need for bail, the police will release the person arrested as soon as practicable. If the police demands bail from the person arrested (typically an organiser), the person arrested can choose whether to post bail or to remain in police custody for 48 hours. A person arrested has a right to get bail or be brought before the court as soon as practicable; in any event, a person arrested may not be detained for longer than 48 hours without the approval of a court.
If the person arrested chooses to post bail, the police will release him as soon as practicable, but after release, he will need to appear at a police station regularly in accordance with the conditions set by the police. There is no fixed standard for the frequency and dates set by the police, and the police will retain its right to prosecute the person arrested.
If the person arrested chooses to remain in police custody for 48 hours, the police must decide whether to charge the person and bring him before a court immediately. If the police decides to release the person arrested immediately, the police will retain the right to prosecute, whereas the person arrested will not need to appear at the police station regularly and post bail.
From the moment the police begins its arrest, all the rights of person under arrest would become applicable (see next chapter: rights of a person under arrest). Upon arrival at the police station, the person arrested can ask to go to the toilet and can ask for food provided by the police.
2.3 After Being Arrested
While being arrested, take note of and try to remember the identification number of the officer arresting you, the reason for the arrest and the offence;
You only need to provide the police with your contact number, address and ID card number;
After your arrest, everything you say may be given in evidence, even if it is spoken outside of an official interview (on the police car, while waiting at the police station etc.)
You are not obliged to say anything while a statement is being taken, and you can state “I have nothing to say” as a response to questioning by the police;
You can ask to make contact with the outside world, and should contact your emergency contact as a first priority, informing him of the police station you are at and the offence, and seek legal assistance
You can ask that the police provide you with a list of lawyers
The police may request for a body search, but without a reasonable cause, the officer cannot ask to do a strip search;
You can ask to take some rest and ask for food provided by the police
You can ask to see the doctor, have a medical inspection and to ask for any necessary medicine;
You will receive a notice for persons under arrest so that you can learn about your rights while under arrest;
A person arrested has a right to get bail or be brought before the court as soon as practicable; in any event, a person arrested may not be detained for longer than 48 hours without the approval of a court
2.4 Guidance Notes on “Statement-Taking”
If you are willing to have a statement being taken from you, you are advised to wait until your lawyer arrives to accompany you before doing so. A person under arrest has a right to refuse to provide any information to the police before his lawyer arrives.
You do not need to respond to any question unless you yourself are willing to speak voluntarily. The police will put the information provided in writing to be given in evidence. If you find any omissions or inaccuracies, or even places without factual basis, you should immediately request for the statement to be amended and should otherwise refuse to sign.
Police officers cannot use any threats to coerce protestors into providing statements or saying anything.
A person under arrest has a right to interrupt or refuse to continue participating in the statement-taking procedure if he feels unwell.
– More frequent but smaller meals are good for digestion and energy conservation. Bring enough food for 2 to 3 days. Additional food will be provided by the organizer.
– Drinking water.
– Dry food (biscuits, dried fruits, energy bars, etc.).
– Electrolytes drinks (e.g. Pocari Sweat).
– Personal medical care materials.
– Medical card (with details of chronic illness, if any, and emergency contacts).
*People with chronic illness are not recommended to participate in long-hours outdoor resistance.
– Travel light and safe.
– Warm and windproof clothing, clothing for change.
– Closed-in shoes for easy movements.
– Protective goggles. Avoid wearing contact lens.
– Sun and rain protection gear.
– Scouring water, antiseptic wipe, big towels, big empty plastic bottles (for men).
– The organizer will distribute manuals on the spot.
– Paper and pen (for jotting down important notes).
– Mobile phone (for SMS), spare batteries, chargers, water-proof bags.
– Cash (for taking taxi back home at night).
– Sleeping bag (tents not recommended though), travel chair.
– Large backpack and small bags.
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