Judges’ Understanding of Protests and the Cultural Underpinnings of Legal Repression: Examining Hong Kong Court Verdicts

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 examines 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 influence protesters was ignored. The emergence of protest violence was typically understood 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.