Seven veteran democrats have been allowed to appeal their convictions over a protest in 2019 at the city’s top court.
Veteran democrat Martin Lee and media tycoon Jimmy Lai, along with ex-lawmakers Lee Cheuk-yan, Margaret Ng, Leung Kwok-hung, Cyd Ho, and Albert Ho, will have their challenge heard at the Court of Final Appeal on June 24.
The top court, meanwhile, denied the Department of Justice’s application to overturn the democrats’ acquittal over organising the same assembly on August 18, 2019, ruling that the fact that the defendants had marched and held a banner at the head of the procession did not mean that they had organised it. The court had already said two weeks ago that it would dismiss the application.
According to the apex court’s judgement on Tuesday, the prosecution’s case was “not reasonably arguable.”
At the time of the demonstration, Hong Kong was seeing large-scale protests sparked by a controversial extradition bill that would have allowed the transfer of fugitives to mainland China. The unrest ballooned into city-wide demonstrations against the Hong Kong and Beijing governments, and the police’s alleged use of brutality to disperse protesters.
Fundamental rights
The top court will hear arguments on whether it should follow a 2021 UK Supreme Court decision that saw protesters acquitted after the judge took into consideration the police’s disproportionate interference of their rights.
In their veteran democrats’ submissions, several defendants asked the court to take into account their fundamental rights of freedom of expression and freedom of assembly.
Justice Roberto Ribeiro, one of the judges overseeing the case, said some of the defence’s arguments “raises issues of great and general importance which would benefit from consideration from the Court.”
Arguments refuted
The court refused, however, to consider the defence’s contention last month that the maximum sentence of five years for participating in a “peaceful” and “nonviolent” unauthorised assembly constituted a “chilling effect.”
“That argument cannot be accepted,” the court’s judgement read. “The statutory maximum gives the court a discretion as to possible sentences ranging from non-custodial measures to the five-year maximum (only on a trial on indictment).”
Senior Counsel Priscilia Lam, a private lawyer representing the Department of Justice, argued at last month’s hearing that the maximum penalty was reserved for the worst case scenario where “peaceful demonstration can turn into violent protest.”
The Court of Appeal last August ruled that the “water flow” assembly, whereby attendees would dynamically weave in and out of Victoria Park, was a “ruse” to circumvent the assembly’s lack of police approval.
The top court agreed with that decision, saying that the defendants’ view that they had merely involved themselves in helping to disperse the crowd safety at the end of the assembly at Victoria Park was not reasonably arguable.
Illegal assembly
The democrats were found guilty of both organising and knowingly participating in an unauthorised assembly after a trial in April 2021. They were given jail terms of up to 18 months while Martin Lee, Albert Ho, and Margaret Ng received suspended sentences.
But the Court of Appeal in August last year quashed their convictions over the organisation charge, ruling that standing in the front rows of a march did not amount to organising it. The appellate court upheld the participation charge, whilst the city’s top court – on Friday – upheld the acquittal over organising the demonstration.
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.
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