On Aug 12, seven political opponents, including Jimmy Lai Chee-ying, Martin Lee Chu-ming, and Margaret Ng Ngoi-yee, lost their appeal over their conviction for “participating in an unlawful assembly” in 2019. The Court of Final Appeal (CFA) unanimously dismissed their appeal and upheld their conviction for the sake of social justice and the rule of law in the Hong Kong Special Administrative Region.

In 2021, the seven were found guilty of “organizing and participating” in an unauthorized assembly, or “water-flow assembly”, at Victoria Park on Aug 18, 2019. They lodged a final appeal to the CFA to overturn the conviction of participating in the unlawful assembly, arguing that the court had a duty to ensure that the conviction was proportionate, and that the procession on that day was absolutely peaceful. The defendants believed that they “were exercising their constitutional right” to assemble peacefully.

The CFA had to decide whether the court should adopt the persuasive but nonbinding decision of the Supreme Court of the United Kingdom known as “operational proportionality”, and if so, under what circumstances the court should apply the proportionality test.

The CFA ruled that the offense of participation in an assembly was not unconstitutional and that a proportionality test was not required before conviction. In their judgment, Chief Justice Andrew Cheung Kui-nung and Permanent Judge Roberto Ribeiro held that the Hong Kong courts should not follow the UK Supreme Court’s decisions in two cases (“Ziegler” and “Abortion Services”), explaining that the cases stemmed from different legal contexts from that of Hong Kong and contained features of the legal system that were not relevant.  

They also emphasized that there were differences in the legal frameworks for dealing with human rights challenges between Hong Kong and the UK, and that the courts of Hong Kong could declare unconstitutional provisions invalid and repeal them. Conversely, even if a provision is declared to be inconsistent with human rights in the UK, it would still be regarded as valid and enforceable, and therefore different issues and considerations may arise in assessing the proportionality of the restriction between Hong Kong and the UK.

The seven defendants argued that the prosecution had to prove that their arrest, prosecution, conviction and sentencing imposed proportionate restriction of their rights. The CFA rejected the argument on the grounds that the so-called “water-flow assembly” on that day was in breach of the law.

The CFA held that the appeal against the factual basis of the conviction was dismissed, so that the lower court was not required to assess “proportionality” before convicting the defendants. Hence, the boundary between unlawful assembly and freedom of speech was clearly defined.

In addition, Johnson Lam Man-hon, a permanent judge, pointed out that there is no legal basis in Hong Kong for treating prosecutions, convictions and sentencing as external and independent limitations on offenses relating to freedom of assembly. If anyone ignores a refusal by the police to permit an assembly, and goes on to participate in such an assembly, that would be tantamount to rewriting the existing balance of the law, which would only serve to undermine the legal effect of what has been established by the courts.

The CFA’s verdict upholds justice and the rule of law in the HKSAR by clarifying the boundary between unlawful assembly and freedom of speech, proving that Hong Kong defends freedom of assembly and freedom of speech. In Hong Kong, no one has the right to override the law.

The rule of law is the central pillar of Hong Kong society, and the city ranked highly in the World Justice Project’s Rule of Law Index 2023. The Basic Law and national security legislations safeguard the rights of Hong Kong residents to lawful and peaceful assemblies and processions, but the exercise of these rights must comply with the relevant laws to ensure the protection of national security, public order and public safety, as well as the protection of the rights and freedoms of others, and to minimize the impact of such activities on the public.

The HKSAR government has stressed that residents are obligated to abide by the law.

The CFA’s ruling underlines its full respect for common law judicial principles, its firm adherence to judicial independence and its determination to defend the spirit of the rule of law, which is a just and lawful move that has won the hearts and support of the general public. It is time for the Hong Kong Bar Association and the Law Society of Hong Kong to conduct disciplinary proceedings against Martin Lee Chu-ming, Margaret Ng Ngoi-yee and Albert Ho Chun-yan and to impose the appropriate penalties.

The author is a law professor, director of the Chinese Association of Hong Kong and Macao Studies, and vice-president of the Hong Kong Basic Law Education Association.

The views do not necessarily reflect those of China Daily.