On Friday, the Hong Kong Court of Appeal granted seven activists a certificate to appeal against their conviction for participating in an unauthorized assembly. Simultaneously, the court dismissed the government’s appeal against the Appellate Court’s reversal convictions for organizing an unauthorized assembly.
When applying to appeal their convictions, the activists contended that the court should examine operational proportionality during the determination of whether to convict a defendant for participating in an unauthorized assembly. In essence, if the court identifies that public officials interfered with the defendants’ freedom to assemble in a disproportionate manner, it will equate to the statutory defense of a lawful excuse.
The activists also posited that delayed enforcement at the time of the violation could amount to operational disproportionality. This argument was given weight by the UK Supreme Court, which in 2021 affirmed the operational proportionality assessment in handling protests against arms trade in 2017. The UK Supreme Court concluded that this assessment is relevant to the rights to freedom of expression and peaceful assembly protections, as provided by the European Convention on Human Rights. It acquiesced that this represents a legal point of great and broad public significance that necessitates a ruling from the Court of Final Appeal.
However, the court denied the government’s appeal against its decision to overrule the activists’ convictions.
The case in question relates to a protest that transpired in August 2019. The Civil Human Rights Front (CHRF), sought to organize a march in protest of police brutality. Although the police denied their request, they did authorize an assembly to take place in a fixed location. In response, the CHRF proposed a “water flow” assembly, encouraging protesters to populate the location and surrounding roads to achieve progression. The court later deemed this “water flow” defense a ploy to circumvent the prohibition, leading to the conviction of the activists.
The full details of the case and its consequences can be found at this link: https://www.jurist.org/news/2023/12/hong-kong-court-allows-activists-to-appeal-unauthorized-assembly-convictions/.