The Hong Kong Court of Appeal on Friday granted seven activists a certificate to appeal against their conviction of taking part in an unauthorized assembly. At the same time, the court dismissed the government’s appeal to the Appellate Court’s overturn of convictions of organizing an unauthorised assembly.
Applying to appeal their convictions, the activists contended that the court should assess operational proportionality in determining whether to convict a defendant of taking part in an unauthorized assembly. In other words, if the court finds that public officers disproportionately interfered with the defendants’ freedom to assembly, it will amount to the statutory defence of a lawful excuse. The activists also sought to argue that delayed enforcement at the time of the offence amounts to operational disproportionality. The UK Supreme Court accepted the operational proportionality assessment back in 2021 when the court was handling protests against arms trade in 2017. The UK Supreme Court agreed that the assessment is relevant to the protections of the rights to freedom of expression and freedom of peaceful assembly provided by the European Convention on Human Rights. The court accepted that this is a point of law of great and general public importance that warrants the Court of Final Appeal to decide on.
Meanwhile, the court dismissed the government’s appeal against the court’s decision to overturn the activists’ convictions. The government sought to challenge the court’s construction of “organising”. The court dismissed the government’s appeal, holding that the government sought to challenge the factual findings of lower courts without pointing out how the court departed from known authorities in constructing the notion of “organising”.
The case concerned the protest that took place in August 2019. The Civil Human Rights Front (CHRF) applied to organise a procession against police brutality. The police refused the application but permitted an assembly in a fixed location. In response, CHRF proposed a “water flow” assembly and called upon protesters to overcrowd the location and roads nearby to achieve a progression. The court later found this “water flow” defence was a ruse to get around the ban and thereby convicted the activists. The activists include Jimmy Lai, Leung Kwok Hung, a defendant in the Hong Kong 47 case, and Lee Chu Ming Martin and Ho Chun-yan, former chairpersons of the Democratic Party.
