Practitioners on Trial in Hong Kong - Defence Submission

In The Western Magistracy Of The Hong Kong Special Administrative Region - WSC 548 OF 2002 - Chronological History

1. At about 8.50 am on the 14^th of March 2002 4 Swiss Falun Gong (F.L.G.) practitioners set up a small stationary linear sit-in type demonstration in front of the flag podium of the Chinese Government Liaison Office at 160 Connaught Road West (no.160). By Hong Kong Standards, this pavement was very wide totally unobstructed and pedestrian traffic was very light. The demonstration included a hand held banner, a mat stating "Switzerland" and (like all things Swiss!) was extremely neat a tidy. The demonstration was "aimed at" the government of China and its positioning was "symbolically perfect" (i.e. directly opposite the flag podium of the government to whom the protest was directed). The "layout" can be fixed exactly on the scale plan exhibited. There was over 2 meters of clear pavement in all sides of the demonstration area. (2-3 meters on the office(s) side and 5 to 6 meters on the road (N.) side). The demonstrators had no reason to believe that they would embarrass or inconvenience anybody or anything except the conscience of the government against whose activities they were seeking to exercise the H.K. right to demonstrate. Early video and photos of this demo (prior to about 10.00 am) show it to have been colorful but quiet and that tranquility, peace, calm, and order prevailed. However there was a buzz of official resentment and activity at no.160.
   
2. That "buzz" had begun with a security guard from no.160 taking the view that the demo. was too close to his podium. He was accustomed to the F.L.G. demos being tolerated and "penned in" only to one side outside no.162. During the next hour a named official from no.160 (who had been previously supplied with the private phone number of Mandarin speaking senior police) repeated his complaint to the local police on 5 separate occasions. Despite this show of concern, that official did not make a witness statement or give evidence to the court.
   
3. Just before 9.00 am the superintendent at Western Police Station received news of the official's complaint. The superintendent jumped to deal with this possible pavement obstruction. He shelved his routine 9.00 am. Briefing and immediately rushed to the scene. By about 9.10 am there was a large number of police "milling about" outside no.160. The police numbers grew and grew until there were many more police than demonstrators.
   
4. The police embarked on a serious of potentially confrontational and puzzling acts. First they blocked off the pavement access to the podium with iron railings (this was the very access, so it is said, that workers and visitors to 160 liked to use; now only the "dangerous" vehicular access could be used). They than "penned in" the demonstrators to E and West. Then they "penned back" the media and curious citizens to the E leaving a 1-2 meter gap of pavement next to the road for passers by; later they put a similar barrier to the West (at the border of 160 and 162).
   
5. The superintendent addressed the press and media. They could only listen by standing in the E vehicular access to no.160. The police spoke to the foreign demonstrators. They cooperated by showing their Swiss passports. All their passports and visas were in order. Never-the-less and for no apparent reason (their being no "black-list of F.L.G. in H.K.) the police wrote down particulars from their passports. The police realized they were foreigners but did not ask them what their native language was. Although this had not been asked, an interpreter was brought to the scene by the police (in the presence of the media). The police then discovered that the interpreter did not speak the language of the foreign demonstrators. They continued to use this interpreter (again in the presence of the media) despite their knowledge that she did not speak the language of these foreigners.
   
6. The police then embarked on a series of legally puzzling quasi-RIOT ACT type readings out to the demonstrators. The readings contained a threat, that further action (eventually removal and arrest) may be taken, and an inducement, that this may be avoided if the demonstrators moved to outside 162. School teachers might describe this as giving naughty pupils several "last chances" but in the grown up world, these "warnings" have little legal basis, they were "interpreted" in the wrong language, and this all went on in front of the media. The foreign demonstrators reacted by pointing out that they were causing no obstruction and were doing nothing wrong and would not move. This is all in the police video/audio tapes.
   
7. By 12.30 pm massive numbers of police (including P.T.U. units) had been stood by. The tranquility, space and peace which had prevailed before the arrival of large number of police had been replaced by metal barricades, police press conferences, police vehicles (some on the pavement), 2 police video teams with step ladders etc. All this reactive activity should have amazed the foreign visitors. We hope "over policing" of small matters is not becoming a feature of H.K. life. The visitors kept quiet and sat tight. At about 1.10 pm they and their local supporters, were seized using a technique which relies on causing pain to release a demonstrators grip. No formal cautions and no NTPIC were ever given to the suspects. They resisted being seized, said they had obstructed nobody, and said they should not be arrested.

SIGNIFICANT FACTORS

8. To discover the true factors precipitating the seizure of so many peaceful people of good character, the overall history and political background of this particular area of pavement must be carefully examined. The government have demonstrably recognized the relevance of this complex background. The government has seen fit to instruct 2 very senior government Counsel to present their case. They (like defense counsel) have virtually no professional experience of doing pavement obstruction cases. They must be here for other reasons. We hope it is solely because there is an obvious and relevant political and constitutional aspect to this case. F.L.G. is unlawful in Mainland China. Any police force of a separate system but of the "same country" will naturally be tempted to react negatively to F.L.G. exercising a legal right to demonstrate here (in the face of the mainland office) which would be illegal in the mainland. Asian people (particularly those with reduced democracy) do feel uncomfortable in the presence of a direct visible challenge to authority. H.K. police have got into the (bad?) habit of placing humiliating cage like metal fences around peaceful sitting demonstrators (see S.C.M.P. 2/7/02). None of our constitutional documents suggests that free expression must be made from a quasi-caged and humiliating position.
   
9. The developed, obliging and immediate police response to official complaints from no.160 has a direct relevance to this case. The police have not troubled to bring a single "obstructed" witness to court. They have not produced a single truly "independent bystander". This is dangerously arrogant. The police know how highly such a witness would be regarded by the court when it comes to proving an inherently controversial offence which was flatly denied at the time by the defendants. The police may be hoping that the political climate re F.L.G. is such that the court will automatically accept whatever the police say and they the police need not trouble to produce independent confirmation.
   
10. Those who serve in an authoritarian structure (e.g. police, security offices etc.) are inevitably susceptible to the mind set encapsulated in the Confucian parable about a despot who tested the loyalty of his subjects by pointing to a deer and calling it a horse; his people were not minded to contradict him even through everyone knew it was a deer that their leader was pointing to. Of course, the line between a demo. that may cause obstruction and one that may not is much finer than that between a horse and a deer. However these officers are likely to be pre-disposed to see any F.L.G. demonstration not previously tolerated/located by police as a potential obstruction. However it is hard evidence/and not the opinion of police officers, (however senior), which must satisfy the court. There is some arrogance in presenting this case involving a right to demonstrate without troubling to obtain any independent evidence from ordinary citizens. The police, like all other citizens are entitled to their own opinions privately held. Their subjective beliefs that this demo. constituted a potential obstruction has not been shown to have been based on reasonable grounds by any objective evidence. All the evidence has come from police and security men from 160. This creates an obvious appearance of bias.
    
11. The result of this police altitude is that/apart from the irrelevant opinions of police officers e.g. an F.L.G. might trespass, there might be a breach of the peace, approaching workers might be intimidated, there might be recurrence) there is no area of the potentially opinionated live witness evidence of potential obstruction that is not completely destroyed by the mathematical accuracy available from the scale plan, the 4 hours plus of video/audio material and the photographs illustrating the history of that stretch of pavement. The prosecution are now faced with (a) a wide lightly traveled pavement whose history shows flexible tolerance of acceptable clutter and whose future shows no police objection to a very substantial narrowing of the existing pavement. (b) photos and early videos which show that the flag podium was never "blocked" by the demonstrators. (scale plan proves this).

The result is that the prosecution have (towards the end of their case) been asking witnesses if the demonstrators might have obstructed persons who take straight line routes on H.K. pavements! They have recognized that without that proposition, they have no case. Such a mythical person, if he ever existed, (the "straight liner") would not survive long in H.K.

12. This proposition cannot survive critical analysis in a H.K. setting. Some examples make the point. Among those we encounter on a regular basis are workmen unloading or piling goods on the pavement; enthusiastic volunteers seeking flag day donations; part-time workers distributing leaflets to persuade us to patronize a new restaurant or to entice us to purchase consumer items; a group of old friends whose chance encounter develops into a twenty-minute conversation right in the middle of the pavement. H.K. is still humane enough to tolerate, for periods of up to 12 hours, established "prostrate beggar positions" on the pavement necessitating pedestrian diversions in busy locations. Cake workers stop in mid-pavement with a banner to protest a loss of jobs. Teenage girls gather to gossip on the pavement whilst waiting for a friend who is 1 hour late. These last few weeks hundreds, sometimes, thousands of Hong Kong resident stood or sat on pavements watching world cup games on large video screens, blocking not just part, but frequently the whole, of the pavement. But understanding residents of this modern metropolis did not insist on walking in straight lines or even their "usual" route, they made small diversions around the groups of people or took an alternative route. The (usually) young "soon to be married" set up semi-permanently on the pavement at L.G.4. We do not send for the P.T.U. We smile and pass by.
    
13. Yet none of the persons in these few examples are protected by the Basic Law and International Covenants. The accused in this trial should be able to rely not only on the good will and courtesy of the residents of this civilized city that strives to be a world class metropolis; These accused have rights that are enshrined in and thus protected by the Basic Law, which guarantees their right to assemble and express their views, even if someone might have to make a very slight detour when walking on the pavement. Moreover in this case there is no evidence from anyone stating that he or she actually had to take a few extra steps. The difference between the examples and this case is that F.L.G. had a "political" message and they were not given the pavement tolerance they are entitled to. The "face" of no.160, the local police and their need to appear to be in control has affected their judgment.
    
14. Hong Kong residents are accustomed to demonstrations sometimes disrupting the normal flow of traffic. They walk around a demonstration site and sometimes wait for the participants of a demonstration to walk by. Because the right to freedom of expression and the freedom of speech and the right to demonstrate are longstanding rights in H.K. Law, residents here have never been intimidated by peaceful demonstrations. The police had no need to attempt to divert and side track this small demonstration to a place on the same pavement but less conspicuous to those they wished to demonstrate to (i.e. 162). Had some implicit but unexpressed arrangement been come to between the police and the complainant at 160? The confusing events of 25/8/01 and 10/11/01 could be thus explained. Was there something sacrosanct about the big wide empty pavement outside 160? Why was the simple solution of "unblocking" the perceived blockage to the podium not dealt with by asking the Swiss to move 2 or 3 meters further away from the podium? Small wonder that the F.L.G. felt persecuted.
    
15. Somehow in this case, although it must now be acknowledged that there was plenty of space to pass in front of, behind and on either side of the four Swiss demonstrators and those F.L.G. members who supported them, the prosecution now insist that there was an obstruction because it was theoretically impossible for some hypothetical person to walk along the pavement to a position directly in front of the small group of protestors (occupying a site about 3 meters by 2 meters of a section of pavement measuring overall 30 meters by 9.5 meters) and then make a right angle turn so that they could walk as close as possible to the flag pole directly to the front door of the LOPCG.
    
16. The absurdity of this proposition was illustrated by the prosecutor re-examining a witness to ask if, for a person emerging for his lunch break, the shortest and straightest route to the pavement would be through the flag podium. This is cloud cuckoo land because

1. all normal lunch goers use the Des Voeux Road exit.
2. to attempt to cross Connaught Road opposite the podium is unlawful.
3. It is a no stopping area (cannot get taxi etc).
4. It is not a direct route to anywhere (except to an empty piece of pavement).
5. No normal lunchgoer would come out just to visit an empty piece of pavement. All must go East or West to get anywhere and in fact, demonstrably, they do use the E or W entrances.

Even if such an odd fellow existed he could go through the podium and could still pass by either side of the demonstration. (9 foot plus 9AP) This "odd fellow" or even a legion of them cannot begin to establish a prima facie care of obstruction. In fact, no such witness was called; Perhaps he does not exist.

17. No specific definition of what is and what is not pavement obstruction can be found in case or statute law. Custom and usage (the origins of the Common Law) have enabled the public to make full and varied use of its pavements within practical limits of tolerance safety and convenience. There should be no problem in a wide, clear, lightly used pavement accommodating a smallish demo.
    
18. The "custom and usage" of this pavement from 158 to 162 shows that it readily accommodates long-term clutters (e.g. the storage of 8' long police barriers across the pedestrian flow, trees set into the pavement, the sporadically tolerated demo outside 162). It also accommodates short-term clutter (e.g. 5 or 6 large cars parking 3 abreast in 2 rows in front of 160, taxis and cars "dropping off" on the pavement outside 160). For the future, the pavement area available for pedestrians between 158 and 162 will be more than halved and the local police have not registered any objection that such a substantial reduction could cause obstruction. Final plans will allow 3 meters, pavement could easily accord Demos. Specifically, the police left their extensive barriers fencing off between 2/3's and 1/3 of the available pavement for days and days after the 14^th of March. They were unlit and unmarked and caused no injury or obstruction to anybody. Although the police alleged explanation for this is interesting, it does not lie in their mouth to say that they would seek to prevent a possible recurrence of a relatively small mobile obstruction (the demonstration) by putting in its place in the pavement an obstruction much larger, less visible and more solid than that which it is seeking to prevent. The police are wildly optimistic to believe that a court will not see through that nonsense. A sensible view is that the pavement outside 160 was wide, open, and could and did successfully accommodate the police fencing operation for days. It is logically and demonstrably unlikely therefore that a small human demo. could cause obstruction injury etc.
    
19. Against that background where is there any clear objective and accurate evidence that the demo. might block access to the podium?

(1) The security officers? Both said that the demo blocked the pavement/podium access. That claim is destroyed by the video/photo/and scale plans.

(2) The superintendent? He said that a worker (who could not now be traced or even described) approached to within 2 or 3 feet and "simply could not get through" because the gap left "was only 2' to 3'". Shown photos which demonstrated the gap to be nearer 9' (now proved by the scale plan videos etc.) the superintendent spoke rather feebly about the possibility of intimidation. The word "feebly" is chosen advisedly because;

1. only the worker himself could give admissible evidence as to whether he was "intimidated". He was not called.
2. there were several uniformed Police Constables and security officers in the immediate vicinity, to calm any imaginary fears.
3. Hong Kong's long standing experience of citizens of demonstrations.
   
20. This, indirect evidence (that some people were obstructed is led to prove a likelihood that people might be obstructed -- for example workers coming out for lunch (presumably after 1.10 pm!) to a part of Connaught Road totally devoid of Restaurants. The contemporary events on this pavement both before and after March 14 and to the East and West demonstrate beyond reasonable doubt that no one was likely to be obstructed/injured by this relatively small demo.
    
21. By the time the P.T.U. units arrived outside 160, no valid observations of "normal" traffic could now be made. The police had created a tumult where, in their absence, their had been relative peace and quiet.
    
22. AS TO CHARGE 2 (Charge se: Banner)

(1) In their desperation to find a suitable charge, the prosecution grabbed for the straw of section 4A of the Summary Offences Ordinance (Cap.228). Section 4A states "any person who without lawful authority or excuse sets out or leaves or causes to be set out or left any matter or things which obstruct in a public place .....". There is evidence before the Court that the accused were holding a banner at all times and even evidence that they at times held it very firmly. There is no evidence that they set out or left it.

Longman's dictionary defines set out as "to put a group of things down and arrange it order, such as to set out the dinner on the table". The Oxford Advanced Learner's English Chinese Dictionary defines the term as to arrange or display (items). The examples given are to set out chairs for a meeting or to set out the pieces on the chessboard. The Collins Co-build English Dictionary's states, "if you set things out, you arrange or display them somewhere. Set out the cakes attractively, using lacy dollies." The accused did not set out or leave their banner in a public place. The obvious mischief that section 4A intends to address is when people set out something in a public place, such as a clothesline, some fish left to be dried on the sidewalk, item protruding too far on to the pavement in front of a shop, etc. It could even include a banner that was set out and left unattended. But that is not the case here. Therefore this charge should be dismissed. My Chinese language ability is non-existent, the Chinese standard of my instructing solicitor is a bit better and he, after conferring with others has instructed me that the Chinese character have the same meaning as "set out" to which I have already referred. The summer students assisting me and others have confirmed this.

(2) The banner is soft and conspicuous and inherently unlikely to obstruct/injure any pedestrian. Would the banner at 162 be tolerated if it posed any such risk? Both are acceptable clutter on a pavement as wide as this one.

(3) The charge is duplicitous as the banner is part of the same obstruction relied on in Charge 1.

23. AS TO CHARGE 3

The defense relies on the facts set out in paragraphs 1-20 to show that although the individual "removal" officers carried out their orders, all the "arrests" were flawed because the superintendent's suspicion (if he held it) was not based on reasonable grounds.

The proper inference from the evidence is that it was impossible to properly observe the obstructive potential of the small demo after the police had fenced the area off. The PTU units, arriving long after this, simply relied on their orders. We do not complain against the individual officers for relying on their orders.

Insofar as the court is obliged to rely heavily on the Senior Police Officer present "professional view", that he had seen obstruction committed "explicitly", the "professionalism" of the police in this operation is not enhanced by the following "unprofessional events".

1. An interpreter speaking the wrong language was engaged and continued to be retained even after this fact was known the police. We say that is unprofessional.
2. Particulars from the Swiss passports were taken down despite their being no F.L.G. blacklist in H.K. We say that is unprofessional.
3. Notwithstanding advice to go to 162, local practitioners had been regularly subjected to police questioning and banner seizure at that place. This has the appearance of "police persecution".
4. No attempt was made to accommodate the demo further back towards the road but still in front of 160. We say that is unprofessional.
5. There is evidence from which it can be properly inferred that no.160 enjoys a special relationship with Western Police Station. (e.g. less senior officers than superintendents speak Mandarin, shop keepers complaining of obstruction do not get virtually immediate personal attendance by superintendents, C.I.P.'s, Sergeants and numerous Police Constables. The removal of the demo on 25/8/01 (placed so far away from any access to 160) without any charges preferred is inexplicable except in terms of special police treatment for 160.
6. The stand-off heavily controlled for so long by the police (and publicly viewed) created a situation where, if no removals were made, the police would appear to lose face. The removals can be viewed as a face saving operation and the "warnings" as "window dressing". The warnings had no legal meaning, as I said.
7. The normal routines of lawful arrest were not observed. There were no formal cautions and no NTPIC's were served. No logical explanation or apology has been given to the court. Notice the word logical.
8. The subsequent showings of video films for identification purposes were conducted in flagrant disregard of the police rules designed to safe guard the interests of both sides (relevant rules copied and enclosed).
9. The prosecution have illogically chosen not to lay charges of resisting arrest. Such charges would have immediately focused the court's attention on the bone fides of the removal operation outside no.160.
10. The essential ingredients of this charge includes a requirement that the prosecution prove that the arrests were lawful. That must be done, regardless of any line that the defense might take. The defendants themselves challenged the legality of the arrests from the outset (video transcripts confirm).
11. The introduction of allegation of previous non-criminal trespass and possible breach of the peace are potentially prejudicial and meaning-less red herrings and, against the background of this case could never provide any reasonable grounds for arrest. Trespass is a civil matter and in the absence of a crime accompanying any trespass, police favor to certain landlords should not be shown.
12. The absence of formal arresting officers for some of the arrested persons does not assist the prosecution to begin to make its case. Notwithstanding the words in English "Arrest them" at 1.10 pm on the video/audio, the prosecution have not brought a speaker to court. This precedes inspector Ho's instruction at 1.11 pm.
    
24. AS TO CHARGE 4 (Assault)

1. D5 has not been proved to have been lawfully arrested.
2. The police video shows a contact only when D5's mouth is closed.
3. Neither the victim's medical report nor the photographs show any bite.
4. Accidental contact has not been ruled out.

25. AS TO CHARGE 5 (one of week incidents)

1. D10 has not been proved to have been lawfully arrested.
2. D10 is on video for all of her removal from the van.
3. That continuous video shows her hand gripping and damaging a right side epaulette.
4. Wong Mei Po (who had viewed this video) first said in evidence that her R epaulette had been damaged. Only when she was shown a police photograph did she "remember" that it was her "left".
5. Wong Mei Po had viewed the video without the police rules being observed. Her evidence is confused and totally inconsistent with the video. It may have been affected by this irregular viewing.
6. Accidental but vigorous contact cannot be ruled out.
7. The "injuries" photographed could have occurred at any stage of the removals. Never have so many photographs been taken of so few injuries.
   
26. AS TO CHARGE 6
    
1. D10 has not been proved to have been lawfully arrested.
2. Chan Wai Man accepted that a struggling heavy woman, held by six W.P.C.'s, could have reached up to grip her shoulder neck and shirt to avoid being dropped i.e. to pull herself up. This would not be an assault.
3. Chan Wai Man first demonstrated a left side injury. She then demonstrated a right side injury.
4. Chan Wai Man has also been exposed to irregular video showing which may have affected her evidence.
5. The fact that the incident only lasted 2 seconds may have prompted "the victim" to make the concession at (2) above.
6. No injury or mark was found on her neck.
7. The "supporting" witness who claims to have seen these assaults saw no "actual scratching" (charge 5); demonstrated different sides of the neck and could not rule out a suddenly released hand, clutching for something to pull herself up by.
   

27. AS TO CHARGES 4, 5 & 6

In the light of the force and pain which these ladies were exposed to in chaotic circumstances, the charges of assault are fundamentally unfair to these defendants. The pain inflicted by the pressure technique is "inhuman treatment" and maybe inhuman treatment is light of the Bill of the Rights.

á

John Haynes
Counsel for all the Defendants
9 July 2002