The Hong Kong Court of Final Appeal (CFA) refused to grant leave to the government on Friday to appeal the acquittals of seven pro-democracy activists.

The lower court overturned the activists’ convictions for organizing an unauthorized assembly but upheld their convictions for participating in an unauthorized assembly. The lower court reasoned that leading and directing did not fall within the definition of organization for the purpose of the Public Order Ordinance. The government requested the CFA grant it leave to appeal, arguing that the lower court’s reasoning unnecessarily narrowed the meaning of organization.

The CFA rejected the government’s argument, ruling that the organizer of the assembly was identifiable in this case and the activists did not belong to the organizing body of the assembly. Since the organizer was at the scene, the CFA refused to consider the issue of whether a third party could be viewed as a leader of an unauthorized assembly without a clear organizer. Previously, the lower court refused to grant leave on the same issues, and the government sought leave again to the CFA directly under section 32(2) of the Hong Kong Court of Final Appeal Ordinance.

The activists also sought to apply for leave from the CFA to challenge the constitutionality of the Public Order Ordinance. The activists argued that five years imprisonment as the maximum sentence for the conviction of “taking part in an unauthorized assembly” was disproportionate and would have a chilling effect on society. The court has not yet decided whether to grant leave to the activists to challenge the ordinance. Previously, the lower court had already granted leave to the activists to appeal their convictions for taking part in an unauthorized assembly.

The Public Order Ordinance was enacted by the British colonial government to quell the Hong Kong 1967 leftist riots. The ordinance requires protest organizers to obtain a “notice of no objection” from the police before a public procession takes place. It also empowers the Commissioner of Police to object to public processions if he reasonably believes that the objection is in the interests of national security, public safety, public order or the protection of the rights and freedom of others.

In 1995, the British colonial government sought to remove the requirement to obtain approval from the police before a public procession. Instead, the 1995 version of the ordinance would have required protest organizers to notify the police seven days in advance. However, the Standing Committee of the Chinese National People’s Congress stated that the amendment violated the Hong Kong Basic Law. The Provisional Legislative Council implemented the “notice of no objection” requirement in 1996.

Amnesty International has continuously advocated for the removal of the requirement, as international human rights law requires that freedom to peaceful demonstration should be able to be exercised without requiring permission from authorities.