On Monday, seven Hong Kong pro-democracy activists confronted the Hong Kong Court of Final Appeal (HKCFA) to challenge the legality of their convictions for “knowingly taking part in an unauthorized assembly,” per section 17A(3)(a) of the Public Order Ordinance. The pivotal issue was whether the court should implement an operational proportionality test to evaluate the appropriateness of arrests, prosecutions, convictions, and sentences, in addition to the systemic proportionality scrutiny already applied to legislative restrictions. The activists argued that while systemic restrictions might be proportionate, the government should also prove that individual prosecutions and convictions don’t disproportionately infringe on the right of peaceful assembly. Conversely, the government asserted that a case-specific proportionality test is redundant since previous rulings have upheld the offense’s constitutionality (see HKCFA appeal hearing and constitutionality).
In 2019, the police allowed a public assembly in Victoria Park but restricted a procession, citing public safety concerns. The Civil Human Rights Front (CHRF) organized a “water flow” event to navigate the restriction. Despite the event being peaceful, lower courts convicted the activists, interpreting the “water flow” as a disguised procession. The convictions raised questions regarding international human rights norms, specifically Article 21 of the ICCPR and Article 39 of the Basic Law which integrates ICCPR into Hong Kong law. The appellants called for adopting operational proportionality, akin to norms accepted by the UK Supreme Court and the Strasbourg court (European court decisions and UK jurisprudence). They argued that such examination is vital for ensuring that broadly-defined offenses like unauthorized assembly do not infringe upon rights by criminalizing otherwise peaceful assemblies.
Chief Justice Andrew Cheung expressed concerns about how operational proportionality might affect systemic proportionality reviews and raised fundamental queries regarding the judiciary’s role under the Hong Kong Bill of Rights Ordinance. Cheung CJ questioned if the judiciary, being separate from the government per the Basic Law, should even engage in proportionality inquiries akin to those mandated for UK courts by the Human Rights Act. The government maintained that convictions from constitutionally sound offenses are inherently proportionate. Introducing operational proportionality, it argued, would create legal uncertainties, potentially emboldening deliberate statutory violations in hopes of leniency on proportionality grounds. They also emphasized that prosecutorial decisions under the Basic Law’s framework fall outside the purview of judicial proportionality assessments.
The HKCFA has yet to rule on whether it will adopt operational proportionality in Hong Kong’s constitutional adjudication framework. The pending judgment will significantly influence the balance between upholding public order and safeguarding fundamental rights in future unauthorized assembly cases.
Read the full article on JURIST.