Hong Kong courts must ensure that a conviction is “proportionate” to the protection of fundamental rights, lawyers representing seven veteran democrats have argued at the city’s top court in an appeal against convictions linked to an unauthorised demonstration in 2019.
The Court of Final Appeal (CFA) on Monday heard an appeal from prominent pro-democracy figures Martin Lee, Margaret Ng, Jimmy Lai, Albert Ho, Lee Cheuk-yan, “Long Hair” Leung Kwok-hung and Cyd Ho, who were found guilty of organising and knowingly taking part in an unauthorised assembly on August 18, 2019.
On that day, organisers estimated that 1.7 million people attended a “water flow” assembly in Causeway Bay’s Victoria Park, as months-long protests sparked by a controversial amendment to the city’s extradition bill continued. The seven activists were seen leading a march, which they said was a “dispersal plan,” and chanting protest slogans.
The group successfully overturned their conviction over organising an unauthorised assembly last August, but their conviction on the participation charge was upheld. The case reached the city’s final appellate court on Monday, when five judges heard arguments on whether “operational proportionality” should be followed by local courts.
The principle that a conviction should be proportional to protection of basic human rights stemmed from two UK Supreme Court decisions which had no binding effects on the city’s courts. British judge David Neuberger was on Monday’s appeal panel led by Chief Justice Andrew Cheung.
Representing media mogul Lai, who was absent from Monday’s proceedings, Senior Counsel Audrey Eu argued that any restrictions on exercising fundamental rights, including a conviction, must be “proportionate.”
According to Eu, the seven democrats, whom she said were known for their peaceful manner, were only trying to lead the crowd to disperse from the park. They were not the organisers, and they had no idea what was happening in nearby areas, she said.
Eu went on to say that although the police had barred the organisers from holding a march out of fears that violence might break out, such concerns did not materialise at the end.
“The court ought to have done the proportionality analysis before the conviction… conviction is a restriction,” she said.
Of the seven defendants, Lee, Ho and Leung are currently detained under the national security law. Lai, who has also been charged under the Beijing-enacted legislation, is serving a prison term of five years and nine months for fraud.
The judges were concerned about the practicality of the proportionality analysis, as they repeatedly asked the democrats’ lawyers to explain how the court would implement such an assessment.
Chief Justice Cheung also questioned the extent to which a proportionality test should be applied. He said if the offence already satisfied the proportionality balance, it was “the end of the matter,” and courts should not look at individual convictions.
Senior Counsel Ambrose Ho, who represented Ng, said the court may have to “bite the bullet” on the question of practicality. Another lawyer, Senior Counsel Hectar Pun said proportionality was “just one more consideration” for the court to take into account when deciding whether to find the defendant guilty or not.
“[There is] no undue difficulty for the court,” said Pun, whose client Leung did not attend Monday’s hearing.
Pun also argued that the legislature could not create an offence that made it so the defendants could not challenge the operational proportionality.
“The courts do have a duty to protect fundamental rights… if the police fail to protect it, if the prosecution fails to protect it, we can only come to you,” Pun told the judges.
Representing the government, Senior Counsel Benjamin Yu argued that there was no need for the court to conduct another proportionality test, which he said was already entrenched in Article 39 of the Basic Law.
The article stipulates that the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.
The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law, and any such restrictions should not contravene the provisions laid out in the article.
Yu went on to say that in deciding whether to issue a letter of no objection to public procession applicants, the police chief had a constitutional duty to exercise the proportionality balance.
The democrats had “deliberately run the risk” and openly violated a rule which they knew applied to them when they walked at the front of the procession and carried the banner, the lawyer argued.
He also rejected the argument from that the democrats had a reasonable excuse to be at the procession.
“When you have a situation that a person is found to have knowingly violated a restriction which is proportionate, what is the lawful excuse? There is none,” Yu said.
The hearing ended on Monday afternoon after the chief justice said the panel would reserve its judgement. He did not say when a decision would be handed down.
Protests erupted in June 2019 over a since-axed extradition bill. They escalated into sometimes violent displays of dissent against police behaviour, amid calls for democracy and anger over Beijing’s encroachment. Demonstrators demanded an independent probe into police conduct, amnesty for those arrested and a halt to the characterisation of protests as “riots.”
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