HK's top court dismisses final appeal by Jimmy Lai and former lawmakers

Hong Kong's top court has unanimously dismissed a final attempt by Apple Daily founder Jimmy Lai and six former lawmakers to overturn their convictions for participating in an unauthorized march in 2019.

Lai, Martin Lee, Albert Ho, Margaret Ng, Lee Cheuk-yan, Cyd Ho, and Leung Kwok-hung were found guilty of organizing and taking part in the procession on August 18, which followed an approved anti-police demonstration led by the now-disbanded Civil Human Rights Front.

While a lower court earlier acquitted them of organizing the assembly, it upheld the participation convictions.

The final appeal had centred on the issue of "operational proportionality", a principle set out by two decisions of Britain's Supreme Court.

The appellants argued that the court should conduct proportionality tests when passing a verdict and that a conviction would be a form of restriction that infringes on the fundamental constitutional rights of the freedoms of assembly and expression.

But judges at the Court of Final Appeal on Monday rejected the argument that the arrest, prosecution, conviction and sentence must be separately justified as proportionate, saying a separate proportionality inquiry was "inappropriate and uncalled for".

"The defendants' convictions and consequent sentences do not stand alone. They are the result of the judge applying the law to the evidence and being satisfied individually of their guilt," the ruling said.

"The same pertains to the defendants' proposition regarding arrest and prosecution. Those actions similarly do not occur in isolation. They represent steps taken to enforce particular offence-creating laws."

Two presiding judges, Chief Justice Andrew Cheung and Roberto Ribeiro, said the two British legal precedents cited by the appellants "should not be followed in Hong Kong" because of differences between the two jurisdictions.

"In Hong Kong, statutory and other provisions which are found to be unconstitutional may be struck down as invalid whereas in the UK, a provision that is declared to be incompatible continues to be enforced as a valid law, with potentially different issues regarding proportionality arising thereafter," the judges wrote.

Fellow justice Johnson Lam added that there is no basis in the SAR to consider the prosecution, conviction, and sentence as "distinct, standalone restrictions" from the rule creating the offense relating to freedom of assembly.

Lord David Neuberger of Abbotsbury, a non-permanent judge from Britain, said the constitutional differences in Hong Kong and the UK "do not mandate a different approach when it comes to considering whether a restriction on the freedom of assembly is proportionate", but they "do require a different approach if the court concludes that the restriction is not proportionate".

Ng, who attended the hearing, said it was inappropriate to comment on the ruling.

"We haven't had a chance to examine this very important judgment. This is not the right time to make comments. We just want to take this occasion to thank our legal teams and all the people who have been supporting us all the time," she said outside the court.

Lee, meanwhile, left the court, saying he had "no comment".

(Source: RTHK)

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