‘Grandpa Chan’ cleared of unauthorised banner display, as judge says broad reading of offence hurts free expression
Hong Kong Free Press
Elderly Hong Kong activist “Grandpa Chan” has been acquitted of displaying banners without a permit, after a judge ruled that a broad interpretation of the offence would infringe upon the the right to free expression.
Siding with 78-year old Chan Ki-kau at the Kowloon City Magistrates’ Courts on Tuesday, Magistrate Kestrel Lam rejected the prosecution’s argument that simply holding up banners without a permit constituted a criminal offence.
Lam’s decision surrounded whether “displaying” a banner should be interpreted broadly. “There is no logical reason why a much wider, all-embracing construction should be adopted,” Lam ruled.
Chan was accused of violating the Country Parks and Special Areas Regulations over displaying Chinese-language banners atop Lion Rock on September 28, 2023. The banners bore a phrase, penned by writer Lu Xun, that suggests standing firm when faced with condemnation last September.
The activist held up a Chinese couplet penned by writer Lu Xun that day. The banners read: “Fierce-browed, I coolly defy a thousand pointing fingers. Head bowed like a willing ox, I serve the children.”
As Chan’s banner display lacked the requisite degree of “permanence and habitual regularity,” as defence counsel Jeffrey Tam had earlier argued, the court could not prove that Chan intended to violate regulations over displaying the banners, Lam ruled.
According to the case details, Chan was captured holding up banners in video clips shared by news outlet Epoch Times. One of the clips lasted five seconds long and another seven seconds.
Chan did not testify during the trial. He also did not call any witnesses.
Freedom of expression
Defence counsel Tam earlier argued that a banner displayed at a country park, as stated in the offence, must have “a degree of permanence and habitual regularity,” citing an interpretation of the Public Health and Municipal Services Ordinance in a 2021 Court of Final Appeal ruling.
The court also accepted the defence’s argument that a broad, all-encompassing interpretation of what constitutes a banner display would infringe upon the constitutional right to freedom of expression, citing the apex court’s decision to overturn journalist Bao Choy’s conviction last June.
The defence’s interpretation of what counted as a banner display, under which Chan’s freedom of expression would not be restricted, was “clearly more appropriate,” Lam said, adding that he found prosecutor Sezen Chong’s contention that the defence’s interpretation would undermine legislative intent unconvincing.
“As to the imaginary scenario of a group of tourists displaying banners momentarily and causing a disturbance, I am not sure it necessitated an all-embracing construction of the word ‘display’,” Lam said in Cantonese, adding that the defence’s construction would not risk encouraging nuisances in country parks, as there were other relevant laws in place.
“The defendant is acquitted accordingly,” Lam said, prompting a short burst of applause from people in the public gallery before security quieted them down.
The magistrate also granted an application by the defence to recover legal fees, a request that was met with objection from the prosecution. Chong argued that Chan’s case was the first to involve an interpretation of what it means to display a banner, and was therefore a matter of public interest.
Chan is a member of Protect Our Kids, a pro-democracy group founded during the protests and unrest of 2019. The protest movement was sparked by a now-axed amendment to the city’s extradition laws that would have allowed criminal suspects to be transferred to mainland China to stand trial.
The activist was known for his presence on the front line of demonstrations, urging calm amid clashes between protesters and police officers. He also took part in a hunger strike during the early days of the movement.
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