On August 18, 2019, the Civil Human Rights Front organized a rally themed “Stop Police Violence, Implement the Five Demands” from Victoria Park to Central. After police issued a notice of objection to the march route, the Front held a “flowing rally” at Victoria Park instead. Jimmy Lai, Margaret Ng, and five other pro-democracy figures were later convicted for “organizing” and “participating” in an unauthorized assembly. The conviction for “organizing” was overturned on appeal, but the “participation” conviction was upheld. The seven have appealed to the Court of Final Appeal, with a hearing at the end of June and a decision expected on Monday (12th).

The key issue for the final appeal is whether the local courts should follow the principles set by the UK Supreme Court in recent cases, assessing whether the convictions disproportionately infringed on freedom of assembly through an “operational proportionality” test.

The appellants argued that the assembly was entirely peaceful, and the subsequent arrests, prosecutions, and convictions days later disproportionately violated human rights. They noted that European cases overwhelmingly show that even unauthorized assemblies do not automatically lose fundamental rights protection, and courts must examine whether law enforcement actions were necessary. The government countered that the European cases were not applicable to Hong Kong’s unique legal system and claimed that requiring convictions to be proportionate was “moving the goalposts” and not in line with legislative intent.

One UK case involved protesters blocking a road in London to demonstrate, charged with “willfully obstructing the highway.” The UK Supreme Court ruled that any enforcement action before, during, or after an assembly, including arrests, prosecutions, convictions, and sentencing, constitutes a restriction on freedom of speech and peaceful assembly, thus must be proven necessary and proportionate in a democratic society.

Another case further clarified the legal principles from previous cases, stipulating that if a statute implicates fundamental rights, courts have a duty to protect human rights, ensuring any conviction aligns with the principle of proportionality.

In the original trial of the August 18 “flowing rally” case, Leung Kwok-hung, Jimmy Lai, Lee Cheuk-yan, Margaret Ng, Albert Ho, Martin Lee, and Cyd Ho were convicted for “organizing an unauthorized assembly” and “knowingly participating in an unauthorized assembly,” receiving sentences ranging from 8 to 18 months. Martin Lee, Margaret Ng, and Albert Ho received suspended sentences. The seven later appealed, and the appeal court upheld the convictions for “organizing an assembly” but maintained the original convictions and sentences for “knowingly participating.”

During the trial and appeal, the defendants challenged the “unauthorized assembly” offense under the Public Order Ordinance, addressing both systemic and operational proportionality.

The former challenge argues that criminalizing “organizing” and “participating” in unauthorized assemblies disproportionately restricts freedoms of assembly and procession guaranteed under the Basic Law and the Bill of Rights Ordinance.

Regarding operational proportionality, the defendants argued in the original trial that on August 18, there were no police warnings or enforcement actions, and their behavior involved no violence or disturbance of peace, constituting a peaceful exercise of their freedom of assembly. The Department of Justice brought charges eight months later, violating principles of tolerance and proportionality on the enforcement level. The subsequent convictions disproportionately restricted the freedom of assembly protected under the Basic Law and the Bill of Rights Ordinance.

The defense cited cases from the European Court of Human Rights in the original trial, noting that even demonstrations without prior notice do not necessarily justify law enforcement actions; decisions on post-event prosecution and convictions should also be subjected to judicial tests of proportionality.

The original trial stated that the Court of Final Appeal ruled the Public Order Ordinance constitutional in the “Leung Kwok-hung case.”

During the original trial, apart from Leung Yiu-chung and Au Nok-hin, who pleaded guilty, the remaining 7 defendants were convicted of two charges. The trial judge, Woo Ya-man, ruled on the issue of systemic proportionality, noting that the Court of Final Appeal had already declared the Public Order Ordinance constitutional in the 2005 “Leung Kwok-hung case.” Thus, the court was bound by that decision and could not revisit the constitutionality of the ordinance.

The case involved Leung Kwok-hung and two members of the Hong Kong Federation of Students who, in 2002, held a gathering at Chater Garden and were each charged with holding or assisting in holding an unauthorized assembly. The case was appealed to the Court of Final Appeal, where the ordinance was upheld as constitutional by a 4:1 majority (with Justice Bokhary dissenting), affirming that the police had the authority to impose restrictions on marches and rallies under the “no objection notice” mechanism, and maintaining the conviction of Leung Kwok-hung.

However, the court also ruled that the provision in the Public Order Ordinance that allowed the police to object to marches on the grounds of “public order” (ordre public) was overly vague and violated the freedom of assembly guaranteed by the Basic Law, requiring a narrower definition of “public order.”

During the First Trial, judges ruled that the court would not assess the decision to prosecute.

During the original trial, concerning the issue of operational proportionality, the court noted that on the day of the assembly, the police did not undertake actions such as arrests or dispersal, and the defendants’ rights to march and assemble were not infringed; therefore, the issue of operational proportionality did not apply to this case.

The court also disagreed with the notion that decisions to prosecute and convict are limited by the principle of proportionality, emphasizing that the Basic Law stipulates the Department of Justice exercises independent prosecutorial discretion, and the court will not assess whether prosecution decisions are proportionate. It further stated that the absence of violence in the case does not equate to the arrests and prosecution decisions being disproportionate, as this would render the law ineffective and a mockery (“…would give the law no teeth and make a mockery of it”). 

The appeal court upheld the appeal against the organization crime, reaffirming adherence to the “Leung Kwok-hung case” constraints.

After the seven defendants appealed the verdicts and the sentences, the appeal court found the convictions for “organizing an unauthorized assembly” to be unsound and allowed the appeals, noting that there was no evidence the defendants were members of the Civil Human Rights Front, involved in planning the march, or organizing the route. The original trial’s conclusion that merely being at the front of the march identified them as organizers was deemed unreliable, leading to the convictions and sentences for the “organizing” offense being overturned.

Regarding the “participation in an unauthorized assembly” offense, the primary contention was the unconstitutionality of section 17 of the Public Order Ordinance, which pertains to police powers over assemblies, processions, and gatherings. The appeal court noted that the Final Appeal Court had already deemed the Public Order Ordinance constitutional in 2005 in the “Leung Kwok-hung case,” which considered all aspects of the notification system for marches, including the offense of “unauthorized assembly.” The court mentioned that the notification system inherently included a proportionality test and provided mechanisms for appeal and judicial review.

On the applicability of the Ziegler case, the appeal court stated that before validation by Hong Kong’s highest court (the Court of Final Appeal), it was bound by the 2005 “Leung Kwok-hung case,” dismissing the appellants’ challenge on the proportionality of the “unauthorized assembly” offense.

The judges maintained that the appellants knew the assembly was unauthorized and that overwhelming evidence showed their participation, affirming the original judgment’s correctness. The appeals against the conviction for “knowingly participating in an unauthorized assembly” were rejected, and the original sentences were upheld.

The original sentences for the two offenses ranged from 8 to 18 months, with some like Martin Lee, Margaret Ng, and Albert Ho receiving suspended sentences. Following the successful appeal against the “organizing assembly” convictions, the sentences were reduced by 3 to 6 months for all seven individuals.

The defendants appealed to the final court, disputing that the prosecution and conviction infringe on human rights.

The defendants and the Department of Justice were not satisfied with the appeal court’s ruling and appealed to the Court of Final Appeal. The Court of Final Appeal denied the Department of Justice’s application for leave to appeal and granted leave for the defendants to appeal on legal issues concerning whether it should adopt the “operational proportionality” test established by the UK Supreme Court in DPP v Ziegler (SC(E)) and/or Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones).

The Court of Final Appeal heard the case on June 24, presided over by Chief Justice Andrew Cheung Kui-nung, Permanent Justices Roberto Alexandre Vieira Ribeiro, Johnson Lam, Joseph Paul Fok, and Non-Permanent Overseas Justice David Edmond Neuberger.

The appellants’ argument, primarily citing cases from the UK and the European Court of Human Rights, including Ziegler and Abortion Services, argued that dispersal, arrest, prosecution, and conviction are restrictions on human rights and thus must meet the proportionality principle.

Representing Albert Ho and Martin Lee, Senior Counsel Robert Pang Yiu-hung argued that European cases overwhelmingly show that even unauthorized, thus illegal, assemblies do not automatically lose basic rights protections. Courts must assess the necessity of law enforcement actions; he also pointed out that the assembly on August 18 dispersed orderly, and the police did not disperse or arrest anyone that day, questioning the necessity of prosecution and conviction months after the event.

Representing Jimmy Lai, Senior Counsel Audrey Eu Yuet-mee argued that the original trial judge wrongly applied the “Leung Kwok-hung case” as binding precedent on the constitutionality of the Public Order Ordinance without considering the unique circumstances of the current case. She claimed the judge conflated “systemic proportionality” and “operational proportionality,” asserting that the “Leung Kwok-hung case” did not preclude challenges on the operational level. Remedios also mentioned that the lack of police authorization for the assembly does not automatically make the prosecution and conviction proportionate, and courts still have the responsibility to examine if there is a disproportionate infringement on fundamental rights.

Representing Margaret Ng, Senior Counsel Ambrose Ho argued that even if the Public Order Ordinance itself is constitutional and the police decisions were legal, the proportionality of the conviction in court is a separate issue. He noted that the defendants’ actions were entirely peaceful, with a large turnout of citizens participating in the assembly without any violent incidents, and according to principles from the European Court of Human Rights, any conviction related to this case would necessarily be disproportionate.

Department of Justice: Arguing that conviction must be proportionate is “moving the goalposts”

Representing the government, Senior Counsel Benjamin Yu countered the appellants’ use of European cases, noting none of their jurisdictions match Hong Kong’s unique legal system. Yu pointed out that the “no objection notice” system only applies to gatherings of more than 30 people, different from other countries; cases like the “Leung Kwok-hung case” and the “Chow Hang-tung case” also allow for challenges to the legality of the regulations and police bans, and the courts already examine the proportionality of regulations and administrative actions.

He also questioned the appellants’ claim that even if the appellants participated in the assembly, they could be acquitted if the conviction was disproportionate, labeling it as “moving the goalposts” and undermining the intent of preventative legislation.

UK Supreme Court in Ziegler Case States Prosecution and Conviction Must be Proportional to Human Rights Restrictions

In the Ziegler case, debated in the final hearing of the 818 case, four protesters blocked a road in London in September 2017 to protest the arms trade and were charged with “willful obstruction of the highway.” The trial court acquitted them, recognizing their actions as exercising their freedom of speech and assembly under the European Convention on Human Rights (ECHR), stating the prosecution failed to prove the defendants’ limited, targeted, and peaceful actions were unreasonable.

The prosecution successfully appealed, with a higher court finding that the trial judge had not balanced the rights of the protesters with those of the public, and reversed to convict the four protesters.

The protesters then appealed to the UK Supreme Court, which in June 2021 issued a ruling where Lords Nicholas Hamblen and Ben Stephens adopted the viewpoint of the European Court of Human Rights. They noted that each step—arrest, prosecution, conviction, and sentencing—constitutes “restrictions” under the ECHR, and each stage’s proportionality should consider various factors.

Lady Mary Arden in her judgment emphasized the core issue was whether convicting the four, thus imposing a justified restriction on freedom of assembly under the ECHR, was necessary to protect others’ rights and freedoms in a democratic society. She concurred with the trial judge that the prosecution must prove that the limitations on the defendants’ rights to assemble were reasonable and meet the criminal standard. Citing the ECHR case Navalnyy v Russia, she stated that any restriction on assembly freedom must be convincingly justified, considering the actual disruption caused to order by the activity in question, not merely procedural issues like non-compliance with notification processes.

In the Ziegler case, the Supreme Court ruled 3:2 to allow the appeal and overturn the convictions, noting that even intentionally obstructive protests are protected under the principles of freedom of speech and assembly. The court emphasized that the level of obstruction caused by the protest, whether it was intentional, and other factors should be considered. The judgment highlighted that the defendants’ actions were peaceful, did not completely block the highway, and lasted only 90 to 100 minutes, allowing the trial judge to consider these factors favorably in terms of proportionality.

Chief Justice Andrew Cheung Kui-nung Concerned About the Huge Impact on Hong Kong Laws if UK Cases are Accepted

In the second case debated in the final hearing of the 818 case, the Northern Ireland Assembly in 2022 passed legislation banning anti-abortion protests within designated safe access zones outside abortion centers to protect the rights of women accessing clinics. The Attorney General for Northern Ireland referred the case to the court, requesting a ruling on whether the law infringes on freedoms of thought, conscience, religion, expression, and assembly under the European Convention on Human Rights (ECHR).

The judgment in the Abortion Service case further clarifies the Ziegler case, stating that not all criminal trials must examine the proportionality of a conviction. The judgment established a three-stage test to determine if a proportionality test is needed, which includes:

1. Whether the case involves rights specified under the ECHR; if the case involves intent for violence or incitement to violence, which are not consistent with the foundation of a democratic society, then it does not fall within the protection of the ECHR.

2. Whether the criminal statute in question inherently possesses elements that can achieve proportionality; if it does, then the conviction does not violate ECHR rights.

3. Whether there are ways to ensure that convictions necessarily comply with proportionality.

The UK Supreme Court unanimously ruled that the legislation establishing safe access zones did not violate the freedoms of anti-abortion protesters as defined under the ECHR. The judgment noted that not all activities are protected under the ECHR, such as some anti-abortion protesters’ actions including spitting at, chasing, intimidating, and assaulting those going to the clinics. The judges unanimously agreed that the legislation prohibiting protesters from demonstrating within safe zones, to protect the privacy and dignity of women and staff going to the clinics, is a proportionate and necessary restriction.

During the final appeal hearing of the 8.18 case, several judges questioned the applicability of the Abortion Services case and other European Court of Human Rights cases in Hong Kong. Permanent Judge Roberto Alexandre Vieira Ribeiro noted that the Abortion Services case relates to Article 6 of the UK Human Rights Act, which states that any public authority acting in contravention of the Convention is unlawful, and questioned whether Hong Kong has a law equivalent to Article 6 of the UK Human Rights Act.

Chief Justice Andrew Cheung Kui-nung expressed concern that if the principles established in the Abortion Services case were accepted, they would extend to all statutes in Hong Kong, not just the Public Order Ordinance, potentially causing tremendous impact on Hong Kong’s legal system.

Whether Hong Kong’s courts will adopt the principles established in the UK cases regarding whether convictions unduly infringe on the freedom of assembly and conduct an “operational proportionality” test, will be decided by the Court of Final Appeal on August 12.

The permit system was once abolished for being unconstitutional; after the handover, the “no objection notice” system was reinstated.

Regarding the Public Order Ordinance involved in the 8.18 case, it was established by the Hong Kong British government in 1967 and underwent two major revisions in 1995 and 1997.

Before the 1995 amendment, the ordinance stipulated that for public processions involving more than 20 people or public assemblies involving more than 30 people, organizers were required to obtain a permit from the Commissioner of Police, who had the authority to refuse issuance.

In 1991, following the implementation of the Hong Kong Bill of Rights Ordinance, certain provisions of the Public Order Ordinance, including the requirement to obtain a permit for processions, were declared unconstitutional. In the 1995 amendment, the licensing system was replaced with a notification system, and the limits for processions and assemblies without prior police notification were raised to 30 and 50 people respectively. The amended ordinance specified that the police must have reasonable grounds to believe that it was necessary to maintain public safety or public order to prohibit a gathering or procession.

In February 1997, the Standing Committee of the National People’s Congress decided not to recognize the “major modifications” made by the Hong Kong British government on the eve of the handover concerning laws such as the Public Order Ordinance and Societies Ordinance. The Provisional Legislative Council reinstated the “no objection notification” system, requiring prior notification to the police for public assemblies of more than 50 people and public processions of more than 30 people.

This revision also added two reasons for the Commissioner of Police to object to public processions, namely “national security” and “protection of the rights and freedoms of others.”

The Witness