Derren Chan is a 3L student at the Peter A. Allard School of Law at the University of British Columbia (CA) and a law student at the University of Hong Kong. Derren previously served as JURIST’s Hong Kong Bureau Chief and is currently JURIST’s Deputy News Managing Editor. He filed this dispatch from Hong Kong.
On Monday I attended the appeal hearing in which seven Hong Kong pro-democracy activists challenged the legality of their convictions in the Hong Kong Court of Final Appeal (HKCFA). The crux of the hearing was whether the court should apply an operational proportionality test on arrests, prosecutions, convictions and sentences, in addition to the systemic proportionality analysis on the legislative restriction and the judicial oversight over the police’s discretion to object to an assembly. The activists argued that while legislative restrictions may be systematically proportionate, the government should bear the burden of proving that the prosecutions and convictions flowing from the legislative restrictions are also proportionate interferences to the activists’ right to freedom of peaceful assembly. Contrarily, the government contended that fact-specific operational proportionality exercise is unnecessary because the constitutionality of the offense has been previously affirmed by the HKCFA. Accordingly, a conviction flowing from a deliberate violation of a constitutionally compliant offense cannot be said to be disproportionate.
In August 2019, the Commissioner of Police allowed the Civil Human Rights Front’s (CHRF) application to organize a public assembly in Victoria Park but objected to its application to hold a procession in the area nearby on the ground of public safety. In response, the CHRF organized a “water flow” assembly – meaning if there were too many participants, they would have to leave the park from several different railway stations nearby. The lower courts convicted the activists of “knowingly taking part in an unauthorized assembly,” contrary to s. 17A(3)(a) of the Public Order Ordinance.
Convicting the appellants, the lower courts reasoned that the “water flow” defense was a ruse to get around the ban and was a de facto procession that the police objected to even though the courts, both at trial and on appeal, agreed that the assembly, albeit formally unlawful, was completely peaceful. The appellants challenged that convictions based on the knowing participation of a formal unlawful but peaceful assembly may not always conform with international human rights norms, in particular article 21 of the International Covenant on Civil and Political Rights (ICCPR). Article 39 of the Basic Law stipulates that the provisions of the ICCPR shall remain in force and shall be implemented through the laws of Hong Kong. In dispute are the obligations under the ICCPR.
The appellants advocated for incorporating the operational proportionality inquiry into Hong Kong constitutional law. The notion stems from international jurisprudence – the UK Supreme Court and the Strasbourg court. In 2015, the European Court of Human Rights held that penalties imposed for having taken part in a rally can have a chilling effect on citizens, akin to a prior ban, thus amounting to interference and subject to judicial oversight. The UK Supreme Court later affirmed this position in its domestic jurisprudence and clarified that fact-specific inquiry on the proportionality of a conviction is necessary to ensure the compliance of the European Convention on Human Rights when “proof of the ingredients of the offense does not in itself ensure the proportionality of a conviction.” On these premises, the appellants argued that section 17A(3)(a) is such an offense that requires further operational proportionality inquiry because the widely-defined “unauthorized assembly” caught all assemblies that would otherwise have been allowed by international human rights norms. The incorporation of operational proportionality serves to ensure that the legislative restriction is not overbroad on the operational level to have restricted genuine peaceful assemblies.
Chief Justice Andrew Cheung was concerned with the impact on the systemic proportionality inquiry after the imposition of an operational challenge. Succinctly, if the court allows a fact-specific proportionality inquiry, the threshold of a systemic proportionality challenge will be heightened because the government can defend every legislative restriction by contending that the court will ultimately ensure proportionate convictions by considering its operational proportionality.
Cheung CJ also questioned if the judiciary is a part of the government that is bound by the Hong Kong Bill of Rights Ordinance(BORO). He stated that the Basic Law particularly designed the judiciary to be separate from the government. If the BORO does not bind the courts, the bench doubts if the judiciary has a role to inquire the proportionality of prosecutions and convictions, similar to the role of the UK courts granted by the English Human Rights Act.
Furthermore, the government argued that convictions and sentences flowing from a constitutionally compliant offense are always proportionate. The contention is premised on the current constitutional framework that allows an accused to challenge the constitutionality of the offense and the prohibition when prosecuted. Accordingly, any arrests, prosecutions, convictions and sentences that flow from a deliberate violation of a constitutionally compliant offense are therefore justified and proportionate.
The government also argued that a fact-specific operational proportionality analysis generates uncertainty and undermines the authority of the statutory notification system because allowing the accused to challenge the convictions by disputing its proportionality encourages deliberate violations of the law, hoping that the court will find their convictions disproportionate. The incorporation ultimately undermines the pre-emptive nature of the legislation and ignores the legislative intention to establish a preventive measure.
Lastly, the government stated that the Department of Justice controls criminal prosecutions free from any interference under the Basic Law. Therefore, the imposition of operational proportionality requires the court to decide whether the prosecutorial decisions are proportionate amounts to a fallacy of confusing executive decisions and judicial actions.
The hearing was concluded and the court adjourned its ruling. Whether the court is convinced that operational proportionality is necessary in Hong Kong’s constitutional framework to protect fundamental rights remains to be seen.
