Man who played ‘Glory to Hong Kong’ protest song without permit cites UN rights treaty in court
Hong Kong Free Press
Hongkongers’ right to perform music in public is protected by a UN treaty enshrined in the city’s mini-constitution, an elderly man accused of playing a popular protest song in public without a permit has argued in court.
Li Jiexin appeared before Magistrate Amy Chan at Shatin Magistrates’ Courts on Monday, representing himself in court.
Earlier in May, the 69-year-old retiree pleaded not guilty to four counts of playing a musical instrument without a permit and three counts of collecting money in a public place without permission.
He was suspected to have played the erhu with an amplifier without permission from the police chief outside Mong Kok East and Tai Wai MTR stations, and on a footbridge outside of Central’s International Financial Centre (IFC) on four occasions between August 3, 2021 and September 29, 2022.
Additionally, Li was accused of organising, participating in, or providing equipment for the collection of money in public without a permit from either the director of social welfare or the secretary for home and youth affairs on three occasions outside Tai Wai MTR station and in Central between June 24 and September 29 last year.
Last year, Li was charged again after allegedly playing his erhu in public without a police permit at Tung Chung’s bus terminus. He was initially cleared of the charge by Deputy Magistrate Felix Tam in August, who ruled that the prosecution had not produced sufficient evidence.
Days later, Tam reversed his decision and decided that Li had a case to answer, saying it was the defence who must bear the burden of proof, not the prosecution.
Internationally guaranteed rights
In court, a video of Li playing Glory to Hong Kong outside the footbridge outside the IFC was played. He was seen being accosted by police officers, was told to stop playing, and to present a permit, which he did not have.
Testifying in court on Monday, Li said he had been to the police headquarters in Wan Chai on three separate occasions, but none of them resulted in a successfully filed application.
Speaking in Mandarin when questioned by Chan, Li said he was turned away by an officer on the first occasion after an officer told him she was not responsible for his application for a permit. She told him to go to another counter, but Li said he went home as the station was closing soon.
Two to three days later, Li went back to the correct counter and was given several application forms which he took home to read, the court heard. He then read that such applications took 14 days to process, and gave up on filling in the forms.
When he returned to the headquarters a third time, the same officer also told him that applicants had to fill in separate forms for each performance location, Li said. He recalled saying to the officer: “I’ve been to more than 80 different location to do street performances in Hong Kong. Does that mean I need to fill in 80 forms and wait 14 days for each one?”
In a fit of annoyance, he tore the forms up at the counter, he said.
Li said that he gave up on filling in the forms as he believed he was entitled to perform on the streets of Hong Kong under the International Covenant on Economic, Social and Cultural Rights, which forms the basis of Hongkongers’ rights to “engage in academic research, literary and artistic creation, and other cultural activities” enshrined in Article 34 of the Basic Law.
The covenant, and Article 34, were both mentioned in a 2015 High Court ruling that saw the defendant acquitted of a charge of performing without a permit. The defendant successfully argued that the Summary Offences Ordinance’s stipulation that he could only conduct performances after receiving a police permit was a contravention of the Basic Law.
Magistrate Chan ruled that the prosecution had presented enough evidence to build a prima facie case against Li. But she also told Li that he may have a reasonable excuse.
Regarding the three charges of collecting money in a public place without permission, the defendant said he had with him a piece of paper that read: “No money to hire a lawyer, raising funds.”
He was unaware, at the time, that a permit was required for raising funds, so he changed the wording to “requesting assistance” for the later performances relating to the latter two charges, Li said.
Li also said his right to enjoy benefits relating to his performance, monetary or otherwise, were also protected under the UN convention.
Melody not politicised
Last Friday, the prosecution argued that Li’s playing of the pro-democracy protest song popularised during the 2019 protests and unrest was “seditious.” They said that police would be able to prove that Li did not have “lawful authority or reasonable excuse,” as stipulated by the ordinance, to perform it.
But during a pre-trial review in April, Li told the court that the song he played was not the 2019 protest anthem, but a parody of it by pro-Beijing lawmaker Junius Ho titled Peace to Hong Kong which included lyrics about bringing “peace” to the city sung over the song’s melody.
On Monday, a police sergeant at the force’s cybercrimes unit agreed that there was a high degree of connection between Glory to Hong Kong and anti-government sentiment, as well as assemblies, “riots,” and “advocacy” of Hong Kong independence.
Testifying in court, the sergeant, surnamed Chui, also said that the effect applied not just to the lyrics, but to the melody.
Chui was allowed to testify as an expert witness after Chan found no issue with his history of absence from duty and 25 contraventions of police regulations back in 2008. Chui said he completed two open source investigation courses provided by the police force’s Cyber Security and Technology Crime Bureau.
He said he learned how to conduct research and “patrols” online, on platforms including social media and forums such as LIHKG, and how to use online materials as evidence in investigations pertaining to rallies and assemblies. That was before he was promoted to the position of Sergeant in 2021.
He added that videos for Glory to Hong Kong show up as the top search results when searching for “Peace to Hong Kong,” and that videos for the latter did not appear until users scrolled down to the 15th result.
Asked if the melody of Glory to Hong Kong carried the risk of damaging public order, even when used as the backing track for parodies created by the pro-establishment camp, Chui answered in the affirmative.
The prosecution said that other parodies also existed, including a version called Glory to Carrie Lam and Happiness to Hong Kong. Questioning Chui, Li said the melody he played on the erhu did not carry any political message: “If you know music theory, [you’d know that] the seven musical notes did not bring in the lyrics or the meaning of any of the songs,” Li said. “Glory and Peace both have political meanings … but do-re-mi-fa-so-la-ti and the melody are not politicised in any way,” he added, referring to the musical scale.
Chan said the court will not make a decision until August 4 – a week after the High Court rules on the Hong Kong government’s application to ban unlawful acts linked to the protest song.
Li’s trial continues on Tuesday.
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