The Hong Kong Courtroom of Remaining Attraction unanimously ruled Tuesday that seven activists’ “systemic proportionality problem” to the constitutionality of Part 17A(3) of the Public Order Ordinance will not be fairly controversial. Whereas the court docket refused to grant depart to the activists on their systemic proportionality problem, the court docket accepted their “operational proportionality challenge” and scheduled their listening to for June this 12 months.
Part 17A(3)(a) of the ordinance offers that each one who knowingly takes half in an unauthorized meeting shall be liable to imprisonment for 5 years on conviction on indictment. The activists contended that the utmost sentence is disproportionate because it doesn’t entail any violence or dysfunction. The activists additional argued that the utmost sentence has a chilling impact on the train of the rights of free expression and peaceable meeting. Rejecting this argument, the court docket reasoned that the court docket has discretion to impose non-custodial measures to the five-year most primarily based on the information of the case. There are not any justiciable points till the court docket workout routines its discretionary energy.
The court docket additionally refused the activists’ complaints on different grounds. The activists sought to problem the decrease court docket’s conviction in claiming that they had been attempting to disperse the group. The court docket held that this argument was a factual grievance and located no authorized flaws within the decrease court docket’s reasoning in concluding a responsible verdict. A defendant, Leung Kwok Hung, sought to attraction his sentence by alleging that his sentence was manifestly extreme. The court docket equally held that the decrease court docket choose had rigorously reasoned his choice and there are not any grounds that justified the court docket to intervene within the choice.
Beforehand, the federal government sought to problem the decrease court docket’s reasoning as a very slender interpretation of “organizing” within the provision. The court docket rejected that argument because the organizer was identifiable and the defendants weren’t thought of to be affiliated with the organizing physique.
Accordingly, the court docket will solely hear one attraction from this case in June this 12 months. Beforehand, the activists obtained depart from the Courtroom of Attraction to problem the operational proportionality of the police enforcement. The activists sought to ask the court docket to conduct an operational proportionality train, which was adopted by the UK Supreme Courtroom in 2021. If the court docket concludes that the police disproportionately interfered with the defendant’s freedom of meeting, the defendants will probably be entitled to the statutory protection of lawful excuse.
The fitting to peaceable meeting is protected by Article 21 of the International Covenant on Civil and Political Rights. Amnesty Worldwide, Human Rights Watch and the United Nations Human Rights Committee (UNHRC) beforehand acknowledged that requiring people to use to the police to exhibit is opposite to the proper to peaceable meeting. The UNHRC additionally commented on September 17, 2020 that failing to fulfill sure home authorized necessities doesn’t place organizers and contributors exterior the scope of the safety of Article 21, so long as the conduct of contributors in an meeting is peaceable.
