In 2005, the Court of Final Appeal (CFA) of Hong Kong heard a major human rights case, following an unauthorized public procession, where it was argued in detail that the updated, British-era Public Order Ordinance (PORDO) was not compatible with the Basic Law in a range of key respects. In a 4:1 decision, the CFA found that the PORDO was, with one minor exception, fully compatible with the Basic Law. The one dissenting judge did not find the overall scheme unlawful although he found that the relevant criminal sanctions employed were not compatible with the Basic Law.
Around 14 years later, the organizers of a large protest rally planned for Sunday, August 18, 2019, applied for and were given police permission, in accordance with the regulating provisions in the PORDO, to hold the rally at Victoria Park. They also applied for and were refused permission to stage a public procession (a march) after the rally, from Victoria Park to Chater Garden, again in accordance with the PORDO. The organizers appealed this negative police decision but the appeal was rejected.
The rally was held as planned. Despite the lack of approval, certain organizers then led the rally members out of Victoria Park and commenced to march toward Chater Garden.
Nine were charged with offenses under the PORDO. All were prominent activists. Two entered guilty pleas. Seven others contested the charges. They were media tycoon Jimmy Lai Chee-ying, founding chairman of the Democratic Party, Martin Lee Chu-ming, and former lawmakers Margaret Ng, Cyd Ho Sau-lan, Lee Cheuk-yan, Albert Ho and Leung Kwok-hung. Widespread television footage showed those charged leaving the rally and leading the march carrying a very large horizontal protest banner.
On April 1, Judge Amanda Woodcock, in the District Court, convicted all seven of organizing and taking part in an unlawful assembly (procession).
The judge rightly dismissed the attempt to argue that the 2005 CFA case was not binding in this case. This defense claim was fraught with difficulty. As the judge noted, a very strong CFA majority had held, in that earlier decision, that the scheme used in the PORDO — allowing demonstrations subject to prior approval and to maintaining public order — was plainly compatible with the Basic Law. It followed that that decision obviously applied to this case.
Yet, when it comes to Hong Kong, if you are a valued friend of the political and media great and good in the US, then these decisively conceited folk feel entitled to tell us when the rule of law applies — and when certain people are above the law in the HKSAR
The defendants ran another argument that they were assisting with crowd dispersal from the large rally rather than commencing an unauthorized march. The judge observed that, “If the defendants were only there to assist with dispersal to ensure public safety and avoid overcrowding, then it does beggar belief that they needed such a large banner that took so many of them to carry.” The judge continued, “This intention was vocalized repeatedly and publicly days before the public meeting. It was only a dispersal plan in name, and the truth is it was a planned unauthorized assembly.”
By the time of this August 2019 rally, intensely violent political protesting had spun off from a series of earlier, approved marches. A shockingly destructive insurrection was underway in Hong Kong. The organizers appear to have felt that they had so much political wind in their sails by August 18 that they could simply opt out of complying with the law and proceed with the unlawful march without any need to heed the consequences. Their sense of militant virtue was their shield.
We have here what once was called an “open and shut case”; the facts were clear (and captured on video) and the charges were robustly grounded within Hong Kong’s estimable, rule of law regime. This is why the audacity of some of the rash offshore responses, though predictable, still take one’s breath away.
Intriguingly, the New York Times report repeats the narrative about the actions of the defendants being “necessary for public safety” yet conspicuously avoids reference to the court’s pivotal finding that this defense beggars belief. This takes effort — as it does to recast Hong Kong’s appallingly violent, multi-month insurrection, as “anti-government protests” which engulfed the city in the second half of 2019. Rather like recasting the highly organized attack on the Capitol building in Washington on January 6 this year as intense voter lobbying that became visibly rowdy. The reporter had either not read the full verdict or relied on active cherry-picking.
The US State Department and the White House panned the verdict as a suppression of freedom of assembly and democracy. Falling promptly into line, the US Consul-General in Hong Kong said that it was “enormously troubling to have this case of people convicted for a peaceful assembly”. This is most troubling as the Consul-General must surely have witnessed the approved rally and how those convicted actively led the procession, which was unmistakably prohibited by the police. Meanwhile, the President of Freedom House, based in Washington, went still further to accuse Beijing of “weaponizing the [HKSAR] judiciary to target democrats and dismantle the rule of law”.
Interestingly, about a week later, three of the defendants who contested the August 18 charges pleaded guilty to similar charges arising out of a non-approved rally held at Southorn Playground in Wan Chai on August 31, 2019. The organizers claimed they were holding an exempted religious gathering but the video evidence plainly showed it was a political rally.
Here is the test. If you were to posit that, in the US, complying with certain basic precepts of the rule of law is optional, virtually all Americans would say this is profoundly wrong. If the Chinese Ambassador in Washington were to say this, well, stand by to see the White House and the State Department in combined, infuriated orbit. Yet, when it comes to Hong Kong, if you are a valued friend of the political and media great and good in the US, then these decisively conceited folk feel entitled to tell us when the rule of law applies — and when certain people are above the law in the HKSAR.
There are complex reasons why we have reached the point where very strange observations such as these are now routinely offered on what happens in Hong Kong. However, I believe that a significant part of what lies at the heart of any explanation was recently clarified by an outstanding former US diplomat, Chas Freeman, who, early in his career, acted as Richard Nixon’s primary interpreter when the President visited China in 1972.
In a recent interview Mr Freeman was asked: “What is the root cause of the United States’ desire to confront China?” “I would argue”, he replied (in part), “that we have inhaled our own propaganda and we are living in the appropriately stoned state that that produces.”
The author is a visiting professor in the Faculty of Law, the University of Hong Kong.
The views do not necessarily reflect those of China Daily.