The journey taken by the prosecution relating to a famous illegal march in August 2019 has been bizarre, reports Henry Litton.
THE FINAL DETERMINATION in the Court of Final Appeal ( CFA ) of the case arising from the so-called “818 Procession” is both bizarre and disturbing. The case was founded on hard facts and clear criminality, yet it ultimately dissolved in a cloud of words in the CFA.
THE PRIMARY FACTS
Mid-August 2019 was a time of high tension in the streets of Hong Kong. Violence, on a daily basis, severely interfered with the lives of ordinary citizens, many of whom were put in fear of themselves and their families. Outlets thought to be Mainland-owned were vandalized, public installations destroyed, transport facilities disabled.
It was at such a time that a group called “the Civil Rights Front” chose to notify the Police of an intention to hold assemblies and a procession on August 18, a Sunday. An estimated 300,000 would take part. The purpose was to protest against “abuse of power by the Police”. The protesters would take over Victoria Park from 10 am to 6 pm, conduct a procession from 3 pm to 7 pm through the streets of Causeway Bay, Wanchai to Chater Road in Central, where there would be another assembly in the pedestrian precinct, from 5 pm to 11.59 pm. The Police had 48 hours to consider the matter and respond.
This immediately put them in a quandary.
POLICE RESPONSE
Hong Kong residents had a right of peaceful assembly, procession and demonstration under Article 27 of the Basic Law; but given the tense social climate at that time and hundreds of thousands of protesters taking part, what guarantee was there that violence would not erupt? And, what’s more, how were the Police to accommodate the rights of the vast majority of citizens who were not engaged in protest?
The Police conducted in effect a “proportionality” exercise. It did not object to the assembly at Victoria Park ( though it deprived ordinary citizens of important recreational facilities on a Sunday ) but objected to the procession and the further assembly in Central.
There was dialogue between the Police and the organisers, leading to a slight modification to the Police objections. On August 16 the Police confirmed their prohibitions by an Operational Order which aimed “to adopt a flexible and facilitating approach” to the events. The organisers were still dissatisfied and took the matter to the Appeal Board which confirmed the Police objections.
AUGUST 18 EVENTS
On August 18 the assembly in Victoria Park duly took place involving a huge number of people. They included three prominent lawyers: Martin Lee Chu-ming, Margaret Ng Ngoi-yee and Albert Ho Chun-yan, several former Legislative Councillors such as Leung Kwok-hung and other prominent residents including Jimmy Lai Chee-ying.
At about 3 pm the leaders hoisted a huge banner with the words (in translation) “Stop the police and gangsters from plunging Hong Kong into chaos; implement the Five Demands”, and led the procession out of Victoria Park through the one gate that was open into the street. Through loudspeakers they chanted slogans (as translated) such as “I have the right of procession”, “No police permission is needed”, “I have the right to protest”, “It’s a free marching day in Hong Kong”, encouraging others to join the procession as it proceeded towards Central. The entire day’s events were video-recorded.
UNDOUBTED GUILT ON THE FACTS
There is not the least doubt that the defendants knew their behavior was unlawful. They acted in open defiance of the law.
TRIAL IN THE DISTRICT COURT
The defendants were subsequently prosecuted. The matter went before Woodcock DJ for trial. Her findings of guilt were detailed, meticulous and unimpeachable. As the judge found, the defendants had openly and deliberately flouted the law.
At the trial, the defendants were represented by teams of lawyers. They sought to rake up an argument already rejected by appellate courts years before: that the statutory scheme of notification of public order events (involving more than 30 people) under the Public Order Ordinance was “unconstitutional”. This was old hat, and roundly rejected by the judge.
“OPERATIONAL PROPORTIONALITY ANALYSIS”
At trial, the lawyers also put up an argument to this effect: before conviction on the facts, the judge had to conduct a so-called “operational proportionality analysis”. That was because ( a ) an ingredient of the offence under s.17A of the Public Order Ordinance was that the acts were “without lawful authority or excuse” and ( b ) the acts – “peaceful” assembly and procession – were in themselves lawful; they only became unlawful when the Police put up objections. In such circumstances, for conviction to attract a maximum sentence of five years imprisonment under s. 17A of the Public Order Ordinance was “disproportionate”.
The argument, as the judge found, was totally without merit. It was circular. To begin with, their conduct – involving 300,000 participants – inevitably interfered with the lives of ordinary citizens: how could that be categorized as “peaceful”? What is more, before the defendants were charged and prosecuted, leading to conviction, an “operational proportionality” exercise had already taken place. That was what the Police did, followed by the Secretary for Justice who performed the same exercise when the decision to charge the defendants was taken.
As Neuberger NPJ subsequently said in the CFA: “proof of the ingredients of the offence itself would demonstrate the proportionality of the conditions, non-compliance with which underlies the offence”.
SUPREME IRONY
There was supreme irony in the arguments put up on behalf of the three lawyers: Martin Lee, Margaret Ng and Albert Ho Chun-yan. Whilst the other defendants attracted imprisonment for their conduct, those three lawyers got off with suspended sentences: “disproportionately” severe indeed! Some would say, given their leadership role in the law, they should have “proportionately” received more severe sentences than the other defendants.
COURT OF APPEAL
Woodcock DJ’s convictions went on appeal to the Court of Appeal (Macrae VP, Poon and Pang JJA). That court affirmed the convictions.
An argument put up by counsel was this: a recent English case -DPP v Ziegler, later “clarified” by another English case Abortion Services Bill –required an “operational proportionality” exercise by the trial judge to be conducted before conviction. This would have meant considering each step along the way: decision to arrest, charge and prosecute: these ingredients would have been deemed by implication written into the offence as charged.
This was sheer nonsense. If valid, it would have dulled the cutting edge of the criminal law, making any conviction or acquittal totally incomprehensible to the ordinary citizen. What would have been “on trial” would be the so-called “fairness” of the criminal justice system rather than the criminality of the defendants.
The Court of Appeal called this “the Elephant in the Room”. It is not clear whether this was said in irony. Be that as it may, it was roundly rejected by that court. The convictions were affirmed.
The defendants sought leave to bring the matter to the CFA.
COURT OF FINAL APPEAL
No one has a right of appeal, as such, to the CFA, when a conviction has been affirmed by the Court of Appeal. This is for good reason. The criminal law, to be effective, must ultimately have a sharp edge. The criminal law cannot be made a plaything for lawyers at the highest court level. Hence, for a defendant to further appeal, he must seek leave from the Appeal Committee – generally composed of the CJ and two Permanent Judges, or three PJs. The Appeal Committee’s jurisdiction is limited in criminal matters. It can only give leave when a question of law of “great and general importance” is involved, or a grave injustice has occurred.
This makes the final resolution of this case in the CFA so disturbing.
The so-called question of law certified by the Appeal Committee for consideration by the CFA was as follows:
“Whether the Court should follow the persuasive, though not binding, decisions of the Supreme Court of the United Kingdom in DPP v Ziegler and/or Abortion Services Bill (which clarified some aspects of Ziegler) and, if so, in what circumstances, and to what extent, it should conduct an operational proportionality exercise”.
The oddity of this question is self-evident. It is damaging to the rule of law in several ways.
( 1 ) How, precisely, were the two English cases “persuasive”? The final outcome of the appeal shows they were in no way persuasive.
( 2 ) This so-called question of law hangs in the air; it is not anchored to the facts of the criminal case on the ground: what purpose is served by any answer given by the CFA to the question?
( 3 ) Assume the CFA had decided to follow those two English cases, what then?
( 4 ) Since the trial court had conducted no “operational proportionality exercise” before conviction, what then? The convictions must be quashed? And the case remitted back to the District Court for retrial?
THE OUTCOME
The short answer is that the Appeal Committee should never have given leave for the matter to proceed.
It was inevitable that the question as formulated by the Appeal Committee led to rambling discourse, totally incomprehensible to the ordinary citizen – or indeed anyone else. After multiple pages of discussion of past “constitutional challenges” in the local courts, the CJ and Ribeiro PJ, in their joint judgment, reached this conclusion: that the English terminology used in the courts in such cases should change: from “systemic challenge” and “operational challenge” to “rule challenge” and “decision challenge”.
The CJ and Ribeiro PJ gave no thought as to how such subtle linguistic distinctions in the English language might be reflected in Chinese, or if it made any sense at all. What purpose is served by all this?
Such insensitivity to local circumstances bodes ill for the development of the common law in the long run. It raises the wider question as to whether this is indeed vigorous and effective application of the principle of One Country Two Systems in the Region.
NEUBERGER NPJ
It goes without saying that all five judges concluded that the answer to the certified question was No.
But it was left to the overseas judge Neuburger NPJ to anchor that question to the circumstances on the ground. In relation to the ingredient of the offence “without lawful authority or excuse” he said this:
If the law criminalizing unauthorized processions, and the [Police] decision to object to this procession were each proportionate restrictions of the basic right to freedom of assembly, it is hard to see how the defendants could simply rely on that basic right as “lawful authority or excuse” for taking part in the procession.”
End of story.
The right of assembly, procession, demonstration in Article 27 of the Basic Law is not absolute. It is subject to the right of others to go about their business freely, without undue interference. Proportionality is built-in to the exercise of rights under Article 27 of the Basic Law. It is as simple as that.
If only the CJ and the Permanent Judges of the CFA would follow such example, the law would not be so mysterious to the ordinary citizen.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.
Illustration at the top by fridayeveryday.