The Court of Final Appeal on Tuesday reserved judgement on the appeals of Joshua Wong, Nathan Law and Alex Chow, against their jail terms for the storming of Civic Square in 2014. Their bail was extended to the day the judgement is handed down, with no date set for that.
Lawyers for the pro-democracy activists told a five-judge panel headed by Chief Justice Geoffrey Ma that the Court of Appeal overstepped its boundaries with its judgement last summer which saw the trio's original non-custodial sentences increased to prison time.
Wong was jailed for six months for unlawful assembly, Chow for 7 months, and Law got 8 months for inciting others to take part in an unlawful assembly.
The lower appeal court concluded that the trial magistrate was wrong not to jail the trio from the beginning, saying the punishments they first received were far too inadequate.
But lawyers for the three told the city's top court that it was in fact the Court of Appeal which was in the wrong, noting that community service and suspended jail terms had frequently been handed down for unlawful assembly offences in the past.
Chief Justice Geoffrey Ma asked if there was anything wrong with the Court of Appeal taking a stronger line on acts of unlawful assembly that contain elements of violence. He said it was a function of the court to set down sentencing guidelines, and it has done so in the past for things like child pornography and election fraud.
Justice Robert Tang also picked up on that point, asking if there was anything wrong with seeking to discourage further acts that could lead to harm.
The lawyers responded that context is key, and a balance must be struck between deterring violence and stifling young idealistic people expressing their views and not acting for their own benefit.
Responding to the arguments in court, Director of Public Prosecutions David Leung said the Court of Appeal had handled the matter correctly. He said the trial magistrate hadn't given proper weight to the trio's culpability.
But Chief Justice Ma asked whether that equated to the magistrate erring in principle. He said she may have been very lenient, but the sentences imposed did not fall outside the range of punishments handed down in the past for these sort of offences.
He also said the magistrate's reasons for her verdict show she had considered the trio's roles, the consequences of their actions, and their motives before handing down the sentences.
After the two-and-a-half hour hearing, Chief Justice Ma announced that the judgement would be reserved to a later date, and he extended the activists' bail until whenever that judgement eventually comes.
After the hearing, Wong was asked by reporters if he was optimistic about his chances of winning the appeal. "It's hard for me to be totally optimistic since I still need to face another a court case verdict tomorrow at the High Court," he replied.
Wong and 15 others were expecting to find out their punishments on Wednesday for ignoring a court order regarding the clearance of the Occupy protest site in Mong Kok on November 26, 2014.