Practitioners on Trial in Hong Kong -- The Second Defence Submission

IN THE WESTERN MAGISTRATE'S COURT

CASE NO WSCC 548/2002

HKSAR V YEUNG MAY WAN & ORS

DEFENCE SUBMISSION OF NO CASE TO ANSWER

A. Charges 1 & 2

1. The Defendants' actions in protesting outside the Central Government Offices at the treatment of their co-religionists in Mainland China were a political demonstration.
2. As such the right of the Defendants to carry out that demonstration was subject to the protections for free speech, freedom of assembly and freedom of demonstration contained in the Basic Law.
3. Chapter III of the Basic Law, containing Articles 24 to 42, is entitled " Fundamental Rights and Duties of the Residents".
4. Article 27 of the Basic Law provides that:

" Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association and assembly, of procession and demonstration; and the right and freedom to form and join trade unions and to strike".

5. Article 39 of the Basic Law provides that:

" The provisions of the International Covenant on Civil and Political Rights .... as applied to Hong Kong remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region"

6. Article 41 of the Basic Law provides that:

" Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms prescribed in this Chapter."

7. The provisions of the International Covenant on Civil and Political Rights ("ICCPR"), referred to in Article 39 of the Basic Law, are applied in Hong Kong by the Bill of Rights Ordinance, Cap. 383. Part II of this Ordinance contains the Hong Kong Bill of Rights ("BORO"), the Articles of which closely follow and are in many cases identical with the articles of the ICCPR which they implement.
8. Relevant to the present case are Articles 16 and 17 of the BORO.
9. Article 16 ( the wording of which is identical to Article 19 of the ICCPR), under the rubric "Freedom of opinion and expression" provides that:

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but this shall only be such as are provided by law and are necessary --

1. for respect of the rights or reputations of others; or
2. for the protection of national security or of public order (ordre public) or of public health or morals."

10. Article 17 ( which is identical to Article 21 of the ICCPR) , under the rubric "Right of peaceful assembly" provides that:

"The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others".

11. The Basic Law is a constitutional document. Other laws must be interpreted so as to be consistent with the Basic Law, or insofar as they cannot be so interpreted and are inconsistent with the Basic Law they are invalid. Similarly the acts of the executive authorities of the HKSAR are invalid if they are inconsistent with the Basic Law. If a court finds that a law or an act is inconsistent with the Basic Law it has no discretion but is bound to hold the law or act invalid. (Ng Ka Ling (an infant) v Director of Immigration [1999] 1 HKC 291).
12. As a constitutional document the Basic Law must be given a broad purposive interpretation ( R v Attorney-General of the Gambia ex parte Momodou Jobe [1984] AC 689). In particular the HKSAR courts are required to give a generous interpretation to the provisions in Chapter III of the Basic Law which contain the constitutional guarantees of fundamental rights and freedoms of Hong Kong residents in order to give Hong Kong residents the full measure of the fundamental freedoms so constitutionally guaranteed (Ng Ka Ling, supra, at 326 D-E).
13. The Hong Kong courts have considered Article 27 of the Basic Law and Article 16 of the Bill of Rights in several cases. However the present case is the first which is directly concerned with the right of demonstration in Article 27. Hong Kong is one of the few jurisdictions which is subject to a constitution which explicitly includes a right of demonstration.
14. The general principle applicable in determining the extent to which the constitutional rights in Articles 27 and 39 may be restricted is that any restriction must be necessary and must be proportionate ( Ming Pao Newspapers v Attorney-General of Hong Kong [1996] AC 907; HKSAR v Ng Kung Siu [ 2000] 1 HKC 117. The burden of showing that the restriction is necessary and proportionate falls on the Government ( HKSAR v Ng Kung Siu at 136).
15. The assembly in the present case was clearly an expression of opinion as well as merely an assembly, the opinion being expressed inter alia being on the demonstrators' banner " Jiang Ze Min stop killing/ stop the killing order". The principles already laid down in cases which dealt purely with freedom of expression are therefore directly applicable to this case involving both expression and assembly.
16. It follows from the existence of the entrenched constitutional rights referred to above that the obstruction provisions under which the Defendants have been charged, Sections 4(28) and 4A of the Summary Offences Ordinance, must be interpreted so as not to be inconsistent with Articles 27, 39 and 41 of the Basic Law. In other words, the Defendants' right to assemble and express their views may only be restricted insofar as it is necessary to do so and the restriction is proportionate.
17. The prosecution have not come remotely near satisfying the burden of proof on them to show that their interference with the freedom of speech and freedom of assembly of the defendants, in purported reliance on the provisions of the Summary Offences Ordinance, was a constitutionally justifiable restriction.
18. Any demonstration may potentially cause some obstruction to some-one, in the sense that another person may have to pause or to deviate from a direct route in order to go round it. For a right to demonstrate to be a meaningful right it must imply some degree of permitted obstruction or potential obstruction. Insofar as a peaceful and orderly demonstration is in this sense an obstruction, actual or potential, it must be regarded as a lawfully authorised obstruction, authorised by Articles 27, 39 and 41 of the Basic Law.
19. Compared with many demonstrations in Hong Kong the impact of the Defendants' demonstration was minimal. It was entirely peaceful. It did not constitute any threat to public order. It was very small. The prosecution has produced no direct evidence that anyone was obstructed, despite many hours of video evidence. The pavement at the location was extremely wide on the day in question (it has since been narrowed by roadworks). It would be difficult in the urban area of Hong Kong to find a public location where anyone would be less likely to be obstructed by a small group of demonstrators than this location.
20. In addition the Central People's Government Liaison Office is an obvious and appropriate place for a demonstration about the policy of the Central People's Government, just as before 1997 regular demonstrations were held outside the offices of the New China News Agency in Causeway Bay. The purpose of a demonstration is to communicate a point of view. This purpose is completely negated if the demonstration is not permitted to be held in a place where the view of the demonstrators is visible or audible to those with whom the demonstrators wish to communicate.
21. If a small peaceful demonstration which has not actually obstructed anyone is not to be allowed at one of the most obvious locations for demonstrations in Hong Kong the rights of free speech and freedom of assembly in Hong Kong have been not merely restricted, but dramatically curtailed. Such curtailment cannot be justified on any of the grounds listed in Articles 16 or 17 of the Bill of Rights.
22. A prosecution for obstruction in these circumstances is therefore inconsistent with Articles 27 and 39 of the Basic Law and must fail.

B. Charge 3

23. In order for there to be any conviction for obstructing the police in the execution of their duty the prosecution must prove that the police were acting in the execution of their duty. The prosecution must therefore prove that the forcible removals of the Defendants from the place where they were demonstrating (which have been described by the prosecution as arrests), were in fact lawful arrests. They must therefore show that they had reasonable grounds for believing that there was a breach of the provisions relied on in the Summary Offences Ordinance, interpreted in conformity with the Basic Law. Unless they can show this the prosecutions for obstruction of the police in the execution of their duty must fail, as the police were not acting in the execution of their duty.

C. Charges 4 to 7

24. Similarly, unless it can be proved that the arrests of the Defendants were lawful, the Defendants were entitled to use reasonable force in resisting arrest. None of the injuries reported by various police officers indicate use of any unreasonable force against them.

PAUL HARRIS

JOHN HAYNES

Counsel for Defendants