May 6, 2005

Convictions overturned as top court rules Basic Law protects freedom to demonstrate. The Court of Final Appeal has unanimously overturned the convictions of eight Falun Gong members for assaulting and obstructing police in a case that was widely seen as a test of judicial independence and the right of protest in Hong Kong.

In a summary of the verdict, the Court of Final Appeal said Thursday the freedom to demonstrate peacefully is protected by the Basic Law.

"Those freedoms are at the heart of Hong Kong's system and the courts should give them a generous interpretation,'' it said.

The demonstrators, the judges said, "were engaged in a peaceful demonstration in exercise of their constitutional right'' and that their right to protest should have been taken into consideration before they were arrested.

The ruling underscores crucial differences between the treatment of dissent in Hong Kong and the mainland, where dissidents are routinely arrested without charge and prevented from gathering to protest against the government.

Falun Gong gatherings are a common sight throughout Hong Kong and are rarely interfered with by police. A spokesman for the spiritual group, [...]said the judgment upheld the rule of law.

''The whole of Hong Kong society should be happy'' with the ruling, said Falun Gong spokesman Kan Hung-cheung. He said the ruling highlights the difference between the rule of law in Hong Kong, which ''incorporates human rights,'' and the legal system on the mainland.

In March 2002, 16 Falun Gong [practitioners] staged a protest outside the Central Liaison Office on Connaught Road West, Western. A large banner reading ''Jiang Zemin: Stop killing'' was unfurled at the main entrance while Falun Gong [practitioners] meditated in front. Following complaints by the office, the protesters were arrested for obstruction.

Once inside a police van, several protesters refused to cooperate and had to be forcibly removed at Western Police Station for interrogation.

All 16 were later convicted of charges of obstructing a public place and several others were also convicted of assaulting police officers and preventing them from executing their duties.

Police officers must give serious consideration to the fact the citizens are protected by the fundamental right to protest enshrined in the Basic Law, before arresting anyone, the court said.

The Police Force Ordinance under which the group was prosecuted would ''open the door to arbitrary arrest'' if it allowed arrests to be made based merely on an officer's belief that a suspect is liable to commit an offense.

Police should have reasonable grounds to believe that suspects are actually guilty of a crime before they initiate an arrest, the court said.

Chief Justice Andrew Li said there should be ''some reasonable objective justification for an arrest,'' and that an arrest cannot be made merely on the basis of what an officer believes.

Li and his fellow judges observed that there was still space for people to enter the building despite the banner, and it was only after the police erected barriers around the protesters that entry was restricted.

Even then, other entrances were accessible.

Consequently the judges emphasized that there were no objective grounds to believe there was a public obstruction.

The ruling calls into question a section of the Police Force Ordinance which states that a police officer can apprehend ''any person who he reasonably believes will be charged, or whom he reasonably suspects of being guilty of an offense.''

Final appeal judge Kemal Bokhary said Thursday that ''it would be sinister if a police officer reasonably believed that a person would be charged with an offense even though he did not reasonably suspect him of being guilty.''

The judges unanimously agreed the ordinance should ensure that officers must reasonably believe a suspect will be charged and reasonably believe the suspect is guilty.

Since the officers merely believed that the suspects would be charged and not necessarily guilty of an offense, the appeal judges concluded that the officers were not exercising a lawful arrest.

As a result, the protesters had a right to resist an arrest that was interfering with their right to demonstrate.

[...]

Falun Gong was outlawed in 1999 by mainland authorities after the spiritual group staged the largest demonstration in Tiananmen Square since the 1989 massacre of democracy protesters.

Human rights groups have often accused the authorities of persecuting and torturing Falun Gong [practitioners].

In September 2003, the appeals court ruled the argument that a banner could lead to an offense of public obstruction was ''nonsensical'' and the judges agreed to dismiss those convictions.

However, the lower court upheld the convictions of eight other members for obstructing the police officers in the exercise of their duties.

Source: http://www.thestandard.com.hk/stdn/std/Front_Page/GE06Aa01.html