Hong Kong’s highest court has rejected an attempt by former publisher Jimmy Lai and six other pro-democracy activists to overturn their convictions for taking part in a demonstration in 2019. The court of final appeal unanimously dismissed their appeal, which claimed that the trial judge did not make an assessment of “operational proportionality” when convicting them.
Mr Lai (76) has been held in solitary confinement for more than three years as he serves a prison term of five years and nine months for violating a lease contract for the offices of his newspaper Apple Daily, which is now closed. He is currently on trial facing separate charges under the National Security Law that Beijing imposed on Hong Kong in 2020.
Mr Lai, along with six former pro-democracy legislators, was convicted in 2021 of taking part in an unauthorised assembly during protests against Hong Kong’s government in August 2019. The authorities had approved a rally in the city’s Victoria Park, but forbade a planned procession and a further meeting afterwards.
The defendants said they were trying to help the crowd to disperse at the end of the rally in Victoria Park but the authorities claimed that they led an organised procession through the streets. They were convicted of organising and knowingly taking part in an unauthorised assembly but the court of appeal later quashed their conviction for organising it.
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Mr Lai and former legislators Lee Cheuk-yan (67), Leung Kwok-hung (68) and Cyd Ho (70) received jail sentences of between eight and 18 months. Martin Lee (86), founding chairman of Hong Kong’s Democratic Party, and former lawmakers Albert Ho (72) and Margaret Ng (76) were given suspended sentences.
Hong Kong enjoys a measure of autonomy from Beijing, with its own currency, central bank and customs area. It also has a separate, common law judicial system and has some foreign judges from other such jurisdictions sitting in its highest courts.
In their appeal to the highest court the defendants cited two non-binding UK supreme court decisions about verifying whether arresting people for taking part in unauthorised political demonstrations was a proportionate infringement on their fundamental rights. One of the decisions concerned safe access zones around healthcare facilities offering abortion services in Northern Ireland.
The five-judge panel found that although the concept of “operational proportionality” is part of the established framework for constitutional challenges in Hong Kong the two UK supreme court precedents cited should not be followed there. They said the decisions were made in contexts that do not arise in Hong Kong, where the Basic Law adopted after Britain returned the city to China in 1997 is supposed to offer constitutional protection of fundamental rights.
David Neuberger, a former president of the UK supreme court who was on the five-judge panel, said he agreed with the main judgment.
“Hong Kong fundamental rights are constitutional ‘basic rights’, whereas UK fundamental rights are statutory ‘Convention rights’ (the Convention being the European Convention on Human Rights), and given that the UK constitution is based on parliamentary supremacy the powers of the UK courts are in some respects more limited than those of the courts of Hong Kong.”
Another former UK supreme court justice, Jonathan Sumption, resigned from Hong Kong’s court of final appeal in June saying that the city was slowly becoming a totalitarian state. “The rule of law is profoundly compromised in any area about which the government feels strongly,” he said.
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