The Hong Kong Court of Final Appeal has unanimously ruled against seven activists challenging the constitutionality of Section 17A(3) of the Public Order Ordinance. Known as the “systemic proportionality challenge”, the court declared it was not reasonably arguable. However, the court accepted the “operational proportionality challenge” brought by the activists, setting a hearing for June of this year.
The focus of the dispute is Section 17A(3)(a) of the ordinance, which decrees that anyone who knowingly participates in an unauthorised assembly can be sentenced to five years in prison upon conviction. The charge doesn’t necessitate any accompanying violence or disorder. The activists argued that this maximum sentence is disproportionate, suppressing free expression and peaceful assembly. This argument was rejected by the court, which reasoned that the imposition of non-custodial measures to the five-year maximum is at their discretion and dependent on the individual case specifics. Until this power is exercised, the court stated that there are no justiciable issues.
In addition to this, the court also rejected the activists’ other appeals. They disputed the lower court’s conviction, claiming they were attempting to disperse the crowd, and again were rejected on grounds that this was a factual dispute, and there were no legal irregularities within the lower court’s reasoning. Defendant Leung Kwok Hung sought to appeal his sentence by arguing that it was overly severe, but again the court found that the lower court judge had adequately reasoned the decision and found no grounds justifying intervention in the decision.
The court also previously rejected a government claim that the lower court’s judgment held too narrow an interpretation of “organizing” within the context of the provision. Only one appeal stemming from this case will be heard in June.
The seven activists want to bring the operational proportionality of the police enforcement under scrutiny. Adopted by the UK Supreme Court in 2021, this operational proportionality exercise is based upon the principle that if the police disproportionately interfered with the defendant’s right to assembly, this would entitle the defendant to a statutory defense of lawful excuse.
This principle of the right to peaceful assembly is protected by Article 21 of the International Covenant on Civil and Political Rights. However, Amnesty International and Human Rights Watch, as well as the United Nations Human Rights Committee (UNHRC) have previously voiced concerns that requiring individuals to apply for police permission to demonstrate contravenes this right. In its comment dated September 17, 2020, the UNHRC asserted that the requirements of domestic law do not automatically exclude organizers and participants from the protection offered by Article 21, provided the actions of participants remain peaceful.