Judges’ Understanding of Protests and the Cultural Underpinnings of Legal Repression: Examining Hong Kong Court Verdicts
| Published date | 01 June 2023 |
| DOI | http://doi.org/10.1177/09646639221122443 |
| Author | Francis L. F. Lee |
| Date | 01 June 2023 |
| Subject Matter | Articles |
Judges’Understanding of
Protests and the Cultural
Underpinnings of Legal
Repression: Examining
Hong Kong Court Verdicts
Francis L. F. Lee*
School of Journalism and Communication, Chinese
University of Hong Kong, Shatin, NT, Hong Kong SAR
Abstract
Given a concern with legal repression of protests and based on the premise that judges
inevitably draw upon common sense ideas in judicial decision-making, this article exam-
ines how understandings of protests, protesters and protest policing are embedded in
verdicts in protest-related court cases. A textual analysis was conducted on judgements
in 21 cases about rioting and incitement associated with three prominent protest events
in Hong Kong between 2014 and 2019. The analysis shows that the assumptions of risk
aversion and perceptiveness were applied to the protesters and onlookers, whereas the
assumption of professionalism was applied to the police. How police actions might influ-
ence protesters was ignored. The emergence of protest violence was typically under-
stood in terms of emotional contagion within the crowd. Overall, such ideas and
assumptions substantially constrain protests, though they sometimes benefitted the
defendants in individual cases. The findings illustrate the cultural underpinnings of
legal repression of protests.
*Francis L. F. Lee is Professor at the School of Journalism and Communication, Chinese University of Hong
Kong. He is the lead author of Memories of Tiananmen: Politics and Processes of Collective Remembering in
Hong Kong, 1989-2019 (Amsterdam University Press, 2021) and Media and Protest Logics in the Digital Era
(Oxford University Press, 2018). He is an Elected Fellow of the International Communication Association.
Corresponding author:
Francis L. F. Lee, School of Journalism and Communication, Chinese University of Hong Kong, Shatin, NT,
Hong Kong SAR.
Email: francis_lee@cuhk.edu.hk
Article
Social & Legal Studies
2023, Vol. 32(3) 464–484
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09646639221122443
journals.sagepub.com/home/sls
Keywords
court verdicts, textual analysis, protests and social movements, legal repression,
common sense, Hong Kong
In year 2019 and 2020, Hong Kong witnessed the largest protest movement in its history.
Originating as an opposition to a proposal to amend the Fugitive Ordinance in order to
allow the extradition of suspects to Taiwan and mainland China, the Anti-Extradition
Law Amendment Bill (Anti-ELAB) Movement evolved into an “uprising”calling for
democratization and police accountability (Lee et al., 2019).
The movement was associated with record-breaking numbers of arrests and prosecu-
tions. Between June 9, 2019, and September 6, 2020, the police arrested 10,016 persons
in relation to the protests (Stand News, 2020). On the one hand, protest tactics indeed
turned violent. But on the other hand, the large number of arrests and perceived arbitrari-
ness of some of the prosecutions led some observers to criticize the state for “weaponiz-
ing”the court for political control (Chan, 2021).
Certainly, whether laws are utilized to suppress legitimate protests is dependent on not
only how the laws are written but also how judges apply them. Nonetheless, judicial judg-
ment is not a straightforward application of the law to facts. Judges inevitably have to rely
on common sense understandings of community expectations, human psychology, and
aspects of contemporary societies in decision-making (Burns, 2016; Cochran, 2017). It
follows that verdicts in protest-related cases could depend on judges’understandings
of issues such as the typical characteristics of social protests, protesters’psychology,
and the nature and character of protest policing.
Based on the above premises, this article examines the explicit or implicit assumptions
about protests, protesters, and protest policing embedded in the verdicts of Hong Kong
court cases between 2018 and early 2021. The analysis aims at reconstructing the under-
standing of protests underlying court verdicts in the period. Beyond Hong Kong, the
study shall contribute to the literature on the law-and-social-movement nexus at large.
Researchers have examined how ideologies or cultural assumptions shaped judicial deci-
sions in areas such as sex crimes and drug abuse (Laugerud, 2020; Mann et al., 2014), this
article is to the author’s knowledge the first study examining common sense assumptions
about protests in legal decision-making. Through such an analysis, this article shall illus-
trate that a core element in the legal repression of protests is the application of cultural
assumptions that tend to constrain protests.
The article begins by discussing legal repression as a general concept, the role of
common sense in legal judgment, and the law-and-social-movement nexus in Hong
Kong. The corpus of materials, analytical method, and the textual analysis are then pre-
sented. The concluding section discusses the implications of the findings.
Legal Repression of Protests
The relationship between the law and social movements is intricate and filled with
tension. Social movements often use the law in their struggles to challenge oppressive
Lee 465
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