Highest court to rule on disorderly conduct application

Hong Kong's highest court is being asked to decide when protesters cross the line between freedom of expression and a criminal act.

A High Court judge allowed a joint application yesterday by two activists and the Department of Justice.

It asks the Court of Final Appeal for an authoritative ruling about what prosecutors need to prove when charging people with disorderly conduct. The application follows the case of activists Chow Ngok-hang, 27, and Wong Hin-wai, 23, who were originally given two-week jail terms for disorderly conduct.

Chow and Wong, both members of the League of Social Democrats, disrupted a speech by former transport chief Eva Cheng in April last year in protest against an MTR fare rise.

But at an appeal hearing last month, the jail terms were replaced by fines of HK$2,000 and HK$3,000 respectively. They then filed the application, allowed yesterday by Mrs Justice Judianna Barnes Wai-ling, of the Court of First Instance.

She said the case involved a point of law of great general importance, particularly in the face of a rising number of protests and disputes between police and campaigners.

"Isn't it time for the highest court to say definitively what disorderly conduct is?" asked Barnes, the first High Court judge to make a comprehensive judgment on what constitutes disorderly conduct. "I feel it is the right case and right time for the law to be clarified," Barnes said.

The first question filed by lawyers for Chow and Wong asks whether the prosecution, in pressing charges for disorderly conduct, needs to prove that the defendant intended to "prevent the transaction of business".

They also ask whether the interruption can be a brief one, or whether the event has to come to a halt.

The Department of Justice, meanwhile, asks what has to be proved in order to establish that a person "behaves in a noisy or disorderly manner with intent to provoke a breach of peace, or whereby a breach of the peace is likely to be caused". It also asks, in such cases, whether it needs to be proved that the conduct was designed to provoke others.

The department is seeking clarification because the Chinese version of the law mentions "others" while the English version does not.

Last month, Barnes overturned a magistrate's finding and ruled Chow and Wong did not breach the peace.

Instead, she convicted them of acting in a disorderly manner at a public gathering to prevent the event taking place.

Chow, a district councillor's assistant, and Wong, a lawmaker's assistant, chanted "The MTR fare rise is shameful" as Cheng spoke. Chow ran on stage and hurled a pile of "hell banknotes" - traditional paper offerings for the dead - around Cheng before Wong grabbed her microphone from its stand.

The judge convicted the pair of acting in a disorderly manner because they briefly interrupted the event. She rejected the defence argument that only a complete halt of the event would constitute an offence.

Barnes said fines were appropriate because the activists did not aim to attack Cheng or provoke a breach of the peace. She imposed a heavier fine on Wong because his grabbing of the microphone was more serious.