Prologue Journal

Prosecution’s reading of UN treaty ‘too narrow,’ court hears in elderly ‘Glory to Hong Kong’ busker case

• prologu5
• 08/10/202308/10/2023

Hong Kong Free Press

A Hong Kong magistrate has called into question whether the prosecution’s reading of a United Nations (UN) treaty granting Hongkongers the right to engage in “cultural activities” was too restrictive. Magistrate Amy Chan made those remarks as the prosecution, which accused an elderly man of playing a popular protest song in public without a permit, delivered its closing arguments.

Li Jiexin appeared before Chan at Shatin Magistrates’ Courts on Wednesday, representing himself. 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 again denied those charges on Wednesday, saying in Mandarin that he had never endangered Hong Kong’s stability or public order, and that he would “appeal to the city’s highest court” if he was found guilty.

Li’s remarks on Wednesday followed the prosecution’s closing.

Arguing that police operational decisions were proportionate to the alleged offence, prosecutor Lam Hiu-man said in Cantonese it was not the case that the defendant had not been given fair prior warning, as the defendant had “time and time again” committed the alleged offences.

Li 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.

Li was additionally accused of collecting money in public without a permit on three occasions outside Tai Wai MTR station and in Central between June 24 and September 29 last year.

However, Chan questioned whether the defendant was given fair warning when the first alleged offence occurred at Exit C of Mong Kok East MTR station.

The prosecutor agreed Li had not been warned before police officers charged him on that occasion, and went on to argue that the police did not resort to “drastic measures,” such as arrests, and as such had fulfilled operational proportionality.

UN treaty

Testifying in court last month, Li said he believed he was entitled to perform on the streets of Hong Kong under the UN’s 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 in contravention of the Basic Law.

Citing Article 15 of the covenant, which “recognises the right of everyone… To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author,” the prosecution argued on Wednesday that the treaty only protected the copyright holder of the song.

But Chan said such an interpretation of the covenant was “too narrow,” especially since broader parameters should be employed in criminal cases. The prosecution agreed, but also argued that regardless of the interpretation, performing and collecting money without a permit was still illegal.

Lam went on to argue that the covenant’s protection of “benefits” did not apply to fundraising efforts, an interpretation that Chan said was similarly “narrow.”

The prosecutor also said that while the money the defendant collected while playing was not confiscated by the police, he did not have a “free pass” to perform or receive money without a permit.

Criminal intent

Chan asked for a further written submission, saying it was on the prosecution to prove that the defendant knew that he needed permits to conduct street performances and collect money, and adjourned the hearing to August 28.

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.

Li was playing the melody of Glory to Hong Kong, a protest song popularised during the 2019 extradition bill protests that contains the phrase, “Liberate Hong Kong, revolution of our times,” a slogan that was ruled capable of inciting secession during the city’s first national security trial.

In a statement published on Monday afternoon, the Department of Justice (DoJ) said that the city’s justice minister had decided to launch an appeal against the High Court decision not to grant an interim injunction prohibiting unlawful acts relating to Glory to Hong Kong. The DoJ added that it had filed an application for leave to appeal.

Legitimate fears?

Responding to Li’s closing statements, Chan recalled a female witness who testified in court earlier saying she was worried she would be assaulted for videotaping Li.

The defendant said: “She only represents herself. Can she represent all Hongkongers? Can I not be afraid that people would attack me, that she would attack me?” In response, Chan said it was reasonable for the witness to have those fears, citing news reports of vigilante attacks during the protests.

“I have not brought any risk to Hong Kong’s stability or safety. All I’m holding is an erhu and a song,” he said. “Hong Kong will become a ghost town with no music if I’m found guilty.”

“Let’s not drag modern Hong Kong society back to the literary inquisition of the middle ages… Using one or two songs or a melody to find someone guilty – that would make an international laughing stock [of Hong Kong],” he added.

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https://hongkongfp.com/2023/08/10/prosecutions-reading-of-un-treaty-too-narrow-court-hears-in-elderly-glory-to-hong-kong-busker-case/