The Hong Kong Court of Final Appeal (CFA) has turned down a government request to review the acquittals of seven pro-democracy activists previously convicted for organizing an unauthorized assembly. The lower court had previously reversed the activists’ convictions, maintaining however, their culpability in participating in an unauthorized gathering.
According to the lower court’s judgement, as quoted from the Hong Kong Legal Information Institute, the concept of organization within the parameters of the Public Order Ordinance does not encompass leading and directing activities. The government sought the CFA’s permission to appeal this judgement, asserting that the lower court’s interpretation unduly narrowed the term ‘organization’.
However, the CFA rejected the government’s argument, asserting that in this case, the assembly’s organizer was identifiable and the activists were not part of the assembly’s organizing body. With the organizer present at the scene, the CFA decided not to delve into the issue of potential recognition of a third party as an unauthorized assembly’s leader without a clear organizer. The government had previously petitioned for leave on these grounds but was denied by the lower court, prompting an appeal to the CFA under section 32(2) of the Hong Kong Court of Final Appeal Ordinance.
The activists have also petitioned the CFA to challenge the constitutionality of the Public Order Ordinance. They argue that the stipulated maximum sentence of five years’ imprisonment for the offense of participation in an unauthorized assembly is disproportionate and exerts a chilling effect on society. The court has not yet determined whether to allow the activists to challenge the ordinance.
An overview of the historical context reveals that the Public Order Ordinance was instituted by the British colonial government following the Hong Kong 1967 leftist riots. The ordinance necessitates protest organizers to receive a ‘notice of no objection’ from the police prior to a public procession and empowers the Commissioner of Police to object to public processions on the grounds of national security, public safety, public order, or protection of others’ rights and liberties. The regulation has long been criticized by entities such as Amnesty International, who advocate for its removal due to its contravention with the international human rights law’s stipulation that the right to peaceful demonstration should not necessitate governmental authorization.