The Hong Kong Court of Final Appeal dismissed the appeals brought by seven activists, including businessman Jimmy Lai, against their unauthorized assembly convictions on Monday.
Following the UK Supreme Court’s judgments in DPP v Ziegler and Reference re Abortion Services (Safe Access Zones) (Northern Ireland) Bill), the activists advocated for incorporating the “operational proportionality” inquiry into Hong Kong constitutional law. The inquiry would require the court to assess the proportionality of the defendants’ arrests, prosecutions, convictions and sentences separately. Only when the prosecution proves that each step is proportionate, the court can safely convict the accused.
However, the appeals court unanimously held that the “operational proportionality” assessment has no application in Hong Kong. Despite the inapplicability, Chief Justice Andrew Cheung and Justice Ribeiro, penning the unanimous judgment, reasoned that there is sufficient judicial oversight to ensure legislation in Hong Kong does not disproportionately abrogate its citizens’ rights.
The court previously confirmed the “systemic proportionality” of the Public Order Ordinance’s (POO) prohibition of “knowingly taking part in an unauthorized assembly” in 2005’s HKSAR v Leung Kwok Hung. In January, the court also allowed a defendant to start a collateral challenge to the validity of a prohibition of the holding of a public meeting under the POO. Accordingly, the court found that there could not be a separate constitutional challenge to the enforcement measures that seek to enforce the offense-creating laws, which have already been found proportionate and constitutional.
In addition, Cheung and Ribeiro concluded that no additional proportionality assessment would be helpful. For arrests, there have already been judicial safeguards in place to ensure that a police officer has reasonable grounds to suspect the person arrested of being guilty of a relevant offense. Similarly, for sentencing decisions, the statutory maximum of five years gives room for judicial discretion to impose an appropriate sentence to convictions with different seriousness. Lastly, prosecutorial independence is protected by Article 63 of the Basic Law and the court can dismiss a prosecution if a case lacks merits.
In Hong Kong constitutional law, legislation that engages with fundamental rights is subject to the four-step Hysan proportionality inquiry. The court determines whether (i) there is a legitimate aim, (ii) there is a rational connection between the legitimate aim and the impugned measure, (iii) the impugned measure is no more than necessary to achieve the legitimate aim and (iv), the impact of the rights infringement is proportionate to the likely benefit of the impugned measure. Legislation is only constitutional if the answers to the above inquiries are all answered affirmatively.
Freedom of assembly is a fundamental right protected by Article 21 of the International Covenant on Civil and Political Rights. International human rights law recognises that requiring permission from authorities to hold peaceful assemblies is inconsistent with the right. Thus, notification regimes are permissible only to the extent necessary to assist the authorities in facilitating the smooth conduct of peaceful assemblies and protecting the rights of others. The UN Human Rights Committee has noted that notification systems “must not become an end in itself.” The European Court of Human Rights has similarly held that “the absence of prior notification does not necessarily justify an interference with a person’s right to freedom of assembly” in Kudrevičius v Lithuania.
