The Hong Kong Court of Final Appeal has dismissed the appeals brought by seven activists, including businessman Jimmy Lai, challenging their unauthorized assembly convictions. The appeals, which referenced UK Supreme Court judgments in DPP v Ziegler and the Northern Ireland Bill on Safe Access Zones, argued to include the “operational proportionality” inquiry into Hong Kong’s constitutional law. This inquiry requires the court to separately evaluate the proportionality of arrests, prosecutions, convictions, and sentences.
The unanimous judgment, penned by Chief Justice Andrew Cheung and Justice Ribeiro, concluded that “operational proportionality” does not apply in Hong Kong. The court observed that existing judicial oversight ensures legislation in Hong Kong does not disproportionately infringe on citizens’ rights. The judgment reaffirmed the “systemic proportionality” of the Public Order Ordinance’s prohibition on unauthorized assemblies, previously upheld in the 2005 case HKSAR v Leung Kwok Hung.
Additional assessments, the court found, were unnecessary due to existing judicial safeguards that evaluate the validity of arrests and the proportionality of sentencing. Article 63 of the Basic Law protects prosecutorial independence, allowing the court to dismiss prosecutions lacking merits.
In Hong Kong constitutional law, fundamental rights legislation undergoes the four-step Hysan proportionality inquiry to ensure that rights infringements are justified and necessary. Authorities must demonstrate that the measure serves a legitimate aim, is rationally connected to that aim, does no more than necessary to achieve the aim, and the rights impact is proportionate to the likely benefit.
Internationally, the International Covenant on Civil and Political Rights protects the right to peaceful assembly. The UN Human Rights Committee has noted in its General Comment No. 37 that requiring prior permission for assemblies conflicts with the right, permitting notification regimes only as necessary for facilitating peaceful assemblies and protecting others’ rights. Similarly, the European Court of Human Rights has held in Kudrevičius v Lithuania that the absence of prior notification should not automatically justify interference with assembly rights.
The court’s dismissal of these appeals underscores Hong Kong’s commitment to maintaining a balance between public order and individual rights within its legal framework.
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