Rights and freedom of assembly should factor in court ruling, says defence lawyer

A Hong Kong court must strike a balance between allowing and infringing on the exercise of rights and freedom of assembly, in deciding whether to convict defendants over a banned gathering on June 4 last year, a defence lawyer said on Thursday.

Robert Pang SC, defence counsel for media tycoon Jimmy Lai, also said the prosecution failed to prove beyond reasonable doubt that his client had committed the charge of inciting others to take part in the unauthorised assembly at Victoria Park.

“Lai arrived and stood with Lee Cheuk-yan and others in the park’s water fountain plaza at 6.22pm, suggested that Lee light a candle, raised the candle and shouted some slogans. He only stayed there for 15 minutes and left,” Pang told the District Court in his final arguments. He added that Lai did not ask the public to enter the park.

At the time of the event, Lee was chairman of the Alliance in Support of Patriotic Democratic Movements of China, which had been organising the annual June 4 candlelight vigil in previous years. He pleaded guilty to three charges, including one of organising the unauthorised assembly, at the beginning of the trial on November 1.

Pang said that neither Lai’s support of the alliance by his presence, nor reasonable foreseeability that people might go into Victoria Park after seeing the tycoon, equated to incitement.

The defence lawyer further asked the District Court to consider if a conviction was necessary when balanced against the defendants’ rights, a legal principle known as the proportionality test, which he said was used by the Supreme Court in London this year on a case of the British government’s prosecution of Ziegler and others. 

The Hong Kong court should take into account not only the police’s use or misuse of their power to control the crowds at the scene on the day in question, but also whether it was being proportionate in convicting and sentencing the defendants, given their rights, Pang said. Before the current trial, the latter was not practised in Hong Kong’s legal system.

Only the alliance could appeal against the police’s prohibition of the June 4 candlelight vigil, but it did not, and hence ordinary people were denied their rights and freedom of assembly in Victoria Park on June 4 last year, Pang argued.

“The court could not control whether or not to prosecute, but it could control whether or not the prosecution would lead to conviction,” he said, referring to the proportionality test.

Pang went on to say that a duty of the police was to facilitate Hong Kong people’s organisation of public rallies, not to ban it. According to Superintendent Josephine Chow’s testimony in court, the police did not consult the government’s Department of Health on precautions to prevent infections and the spread of Covid-19, or impose conditions on the alliance such that the rally could proceed, he noted.

The court should consider this point as well in using the proportionality test, Pang suggested.

Meanwhile, the prosecution, in its closing statements, argued that the organising alliance and its allies had made an appointment to gather at the park’s water fountain plaza on June 4 last year and to continue with the yearly candlelight vigil.

“Otherwise, why did these people know where and when to meet? Some of the defendants were not members of the [alliance],” head prosecutor Laura Ng asked. 

Ng also pointed out that Lee had publicly announced the alliance would enter the park on the night of June 4, but had mentioned just once in public the alliance’s intention to go inside as a group of its own.

The prosecutor said people at the park that night followed Lee’s actions; for instance, the football pitches became silent when he called for a minute of silence to be observed, and they then raised candles and sang songs. These members of the public were acting as if they were attending the same meeting, Ng said.

Lai’s act of incitement began when he showed up at the water fountain plaza, stood with Lee, suggested that Lee light the candles, and shouted slogans, Ng said. They acted together to show the world their will to resist the police’s ban, she said.

Defendant Chow Hang-tung, then vice-chairwoman of the alliance, followed Lee’s actions, proving she was participating in the meeting organised by Lee, Ng said.

On Gwyneth Ho, Ng described this defendant as a former journalist who was very assertive of her civil rights and was an alert person. However, Ho seemed evasive when answering certain questions in court, such as on where she had obtained the candles and flowers, or with whom she had entered the park, the prosecutor said.

Ho’s group of eight people turned up at the park early so that they could occupy a spot on the football pitch where the stage used to be set up, and they then sat near Lee’s group, Ng said, suggesting that Ho was guilty of the charge of participating in the unauthorised assembly.

On Friday, the defence lawyer for Chow will present to Judge Amanda Woodcock his final arguments against her charges of taking part and of inciting others to take part in the banned June 4 vigil.

By Y.S. Luk