On August 18, 2019, a “flowing assembly” was held in Victoria Park by the Civil Human Rights Front, where Jimmy Lai, Margaret Ng, and five other pro-democracy figures were tried and convicted of “organizing” and “participating” in an unauthorized assembly. The appeals court overturned the convictions for “organizing an assembly” for all seven, but upheld the convictions for “participating in an assembly.” The defendants then appealed to the Court of Final Appeal, contesting the prosecutorial and conviction decisions as infringing on the freedom of assembly, but were defeated on Monday (12th).

The five judges of the Court of Final Appeal unanimously ruled that Hong Kong courts should not follow the principles set by the UK Supreme Court in two recent cases regarding whether the convictions excessively infringed on the freedom of assembly by conducting an “operational proportionality” test. The judgment noted that the legal contexts of the two cases were different from Hong Kong, pointing out that the legal frameworks for addressing human rights challenges in Hong Kong and the UK are not the same. For instance, while Hong Kong courts can declare unconstitutional provisions or other regulations void and repeal them, in the UK, provisions declared incompatible with human rights are still considered valid and continue to be enforced.

Margaret Ng, Martin Lee, and Leung Kwok-hung’s wife, Chan Po-ying, were present at court this morning. Outside the courtroom, Margaret Ng mentioned that she hadn’t had time to read the judgment and felt it inappropriate to comment, but she and Martin Lee took the opportunity to thank their legal team and the citizens who have supported them.

Appellants Jimmy Lai, Lee Cheuk-yan, Margaret Ng, Leung Kwok-hung, Cyd Ho Sau-lan, Albert Ho, and Martin Lee were represented by senior barristers Audrey Eu Yuet-mee, Ambrose Ho, Hectar Pun Hei, Rober Pang Yiu-hung, and barristers Chris Ng, Jeffrey Tam, Ernie Tung, Elson Tong, Isaac Chan, Jason Ko, Anson Wong Yu Yat, Geoffrey Yeung, and Simon Kwok. The government’s side was represented by senior barrister Benjamin Yu, barrister Priscilia Lam, senior prosecutor Karen Ng, and Edward Lau.

The case was heard by Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Alexandre Vieira Ribeiro, Johnson Lam, Joseph Paul Fok, and non-permanent judge David Edmond Neuberger.

Judgment: Hong Kong Courts Should Not Follow UK Cases

The ultimate appeal dealt with whether Hong Kong courts should follow the principles set by two recent UK Supreme Court cases regarding whether the convictions in this case excessively infringed on the freedom of assembly, conducting an “operational proportionality” test.

The judgment from the Court of Final Appeal stated that Hong Kong courts should not follow these two recent UK Supreme Court cases, noting that the legal contexts of these cases differ from that of Hong Kong, including differences in the legal frameworks for addressing human rights challenges. The judgment mentioned that Hong Kong courts can declare unconstitutional provisions or other regulations invalid and abolish them, whereas in the UK, provisions declared incompatible with human rights are still considered valid law and continue to be enforced.

Permanent Justice Johnson Lam further states that, in terms of restrictions on assembly freedom, there is no legal basis in Hong Kong to treat prosecution, conviction, and sentencing as separate restrictions from the provisions defining the offense itself. Lord David Edmond Neuberger, a non-permanent judge, adds that due to constitutional differences, Hong Kong and UK courts handle disproportional restrictions differently. The Court of Final Appeal unanimously dismissed the appeal.

Appellants argue prosecution and verdicts harm freedom of assembly

The case disputes the applicability of the “operational proportionality” principle, established in recent British Supreme Court cases, to this situation. The appellants argued that the assembly was entirely peaceful and that arrests, prosecutions, and convictions occurring many days later disproportionately infringed on human rights. They also cited European cases which overwhelmingly demonstrate that unauthorized assemblies do not automatically forfeit basic rights protection, and courts must consider whether law enforcement action was necessary.

On the other hand, the prosecution argued that the European cases differ from Hong Kong’s unique legal system and that the police had already conducted a proportionality assessment. They questioned the appellants’ claim that even if individuals participated in an assembly, they could be acquitted if the conviction was deemed disproportionate, calling this a “moving the goalposts” approach that undermines the legislative intent.

Read and download the full judgement below: