Hong Kong activist Chow Hang-tung’s line of defence called into question in gov’t appeal against her acquittal
Hong Kong Free Press
Detained Hong Kong activist Chow Hang-tung should not have been able to challenge the legality of a police ban on the 2021 Tiananmen crackdown vigil in her criminal trial over the unauthorised commemoration, the city’s top court has heard.
Chow, formerly the vice-chairperson of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, the organisation behind the city’s annual vigils to remember the 1989 Tiananmen crackdown, last December saw her conviction related to the banned 2021 event quashed.
She had been handed a 15-month jail sentence in January 2022 for inciting others to take part in an unauthorised assembly after the previous year’s vigil was banned, with police citing Covid-19 measures.
Chow was escorted to the Court of Final Appeal on Wednesday morning in a prison van. The gap often left between the official vehicle and an inflatable tunnel used to prevent her from being seen as she entered the courthouse was covered, leaving reporters unable to photograph her arrival.
At around 10 am, she appeared before Chief Justice Andrew Cheung, permanent judges Roberto Ribeiro, Joseph Fok, and Johnson Lam, and non-permanent judge Anthony Gleeson, wearing a green jacket and her hair in a ponytail.
Chow was in court to hear an appeal launched by the Department of Justice in June against her acquittal. During Wednesday’s hearing, Deputy Director of Public Prosecutions William Tam asked the top court whether Chow could feasibly challenge the legality of the police ban on the 2021 assembly under the context of criminal proceedings.
That line of defence had been allowed by High Court Judge Judianna Barnes, who quashed the ex-activist’s conviction, ruling that the legality of the police ban was an “essential element” of the offence.
Judicial review
Tam on Wednesday argued that it was not appropriate for Chow to challenge the ban in criminal court, and that the only proper channel for her to do so was through a judicial review. That, in effect, would be a separate legal proceeding whereby the High Court would have “all necessary expertise,” he added.
Judicial reviews, which are considered by the Court of First Instance, examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Criminal proceedings could be adjourned pending the result of the judicial review, Tam told Judge Lam. Asked if such an arrangement would “fragment” the criminal process, Tam said practical problems may arise.
“But that’s insofar as Mr Tam says,” said Senior Counsel Robert Pang, who was representing Chow.
During the initial trial last year, Chow argued that the ban on the 2021 Tiananmen crackdown vigil – and thus, her prosecution and conviction – amounted to a “disproportionate” restriction of her rights to freedom of speech, assembly, and demonstration.
The judge at the time, Magistrate Amy Chan, said Chow was “self-righteous” and “completely disregarding [of] the law to think that the freedom of assembly was more important than public health.” Her intention, the court ruled, was to incite people to take part in the unauthorised assembly “as quickly as possible.”
Ban challenge
The Alliance had for decades organised a candlelight vigil in Victoria Park on June 4 to remember victims of the 1989 Tiananmen crackdown. But the vigil was banned in 2020 and 2021, with authorities citing Covid restrictions.
The Tiananmen crackdown occurred on June 4, 1989 ending months of student-led demonstrations in China. It is estimated that hundreds, perhaps thousands, died when the People’s Liberation Army cracked down on protesters in Beijing.
According to case details, the alliance appealed to the Appeal Board on Public Meetings and Processions, which on May 29, 2021, upheld the Commissioner of Police’s ban. Tam argued that Chow, in challenging the ban, had “ignored” the board’s decision and “[undermined] the effectiveness of administrative schemes.”
“Members of the public shouldn’t be given the impression that they can ignore the Appeal Board’s determination, or that they could ignore and challenge [the determination] at the later stage of criminal prosecution,” Tam said.
But Justice Ribeiro noted that Chow herself was not party to the appeal, adding that the Appeal Board’s decision could not deprive the ex-activist of her right to defend herself in a legal proceeding.
Ribeiro also said that the Appeal Board’s determinations were, as stipulated in the Public Order Ordinance, “final,” only within that process, meaning that challenges could be brought via other means. “[The ordinance] is not purporting to say [a defendant] can’t take up another challenge in a different context,” he added.
‘Public safety’
Tam also said that “where matters such as national security, public safety, and public order are at stake,” the police must be given a “wide margin of appreciation when it comes to public safety and a pandemic.”
“[It was] certainly reasonable for the commissioner to impose prohibition to prevent an outbreak,” he added.
He also said there would have originally been an estimated turnout of 40,000 to 60,000 attendees at Victoria Park for the candlelight vigil, adding that “it was expected that there would be singing and chanting.”
Echoing Barnes’ December ruling that public meetings should not be banned if police could have imposed conditions to reduce the risk of the virus spreading, Pang said that the police had made “no considerations” as to the number of people allowed or the activities that could be prohibited to minimise risk.
“If you don’t feel safe with 60,000 then tell us how many people you would feel safe with,” Pang said, referring to the police ban.
The judgement will be handed down at a later date, said Chief Justice Cheung. People in the public gallery waved at Chow and wished her well.
Two years in detention
Chow has been detained since September 2021, when she was arrested and charged under the national security law. A trial date for the case has yet to be set.
She has also been charged in a number of other cases. In December 2021, she was sentenced to 12 months in jail over her involvement in the 2020 Tiananmen crackdown vigil.
In March, Chow was sentenced to four and a half months in jail for not complying with a national security police data request. Earlier this month, international civil society group CIVICUS urged the authorities to end its use of repeated solitary confinement on Chow, who had allegedly been placed in isolation six times since June.
Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers, led to hundreds of convictions amid new legal precedents, whilst dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs, despite an overall rise in crime.
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