Magistrate made error in 2009 Liaison Office rally acquittal, says judge

Judge says magistrate erred in law before acquitting Liaison Office protesters of unlawful assembly; case may find its way back to court

PUBLISHED : Saturday, 20 October, 2012, 12:00am
UPDATED : Saturday, 20 October, 2012, 3:24am

A judge yesterday found that a magistrate had made errors of law before he acquitted six demonstrators charged with unlawful assembly in a protest at the central government's liaison office in 2009. The ruling means they may be sent back before the original court.

Eastern Court magistrate Anthony Yuen Wai-ming had acquitted lawmakers "Long Hair" Leung Kwok-hung and Lee Cheuk-yan along with activists Richard Tsoi Yiu-cheong, Leung Kwok-wah, Li Yiu-kee and Koo Sze-yiu of unlawful assembly.

He ruled that the area in front of the office was not private and that the six had a right to protest there.

But Mr Justice Johnson Lam Man-hon said in the Court of First Instance yesterday that even in public places, people did not have an absolute right to enter.

Prosecutors sought a ruling in an appeal by way of case stated, in which a court is asked to rule on a set of legal questions.

The legislators and activists had been protesting outside the central government's liaison office on Connaught Road against the incarceration of mainland dissident Liu Xiaobo .

Guards and policemen told them to leave a walled and gated area in front of the office, and in the subsequent pushing that resulted, an officer, a guard and Leung Kwok-wah were injured. At the trial in 2010, the magistrate found that the walled area was not private. But Lam said in his written ruling: "I am of the view that the magistrate erred in law in holding that the defendants did not conduct themselves [in a]disorderly [manner] simply because the liaison office was not a private premise."

After the ruling, Tsoi, vice-chairman of the Hong Kong Alliance in Support of Patriotic Democratic Movements in China, said they believed it had been a "political prosecution mounted under pressure from the liaison office".

Prosecutors and defence lawyers are due to discuss how to proceed.

The judge questioned whether it was realistic to send the case back to the magistrate given the time that had elapsed.

Speaking generally and not in connection with yesterday's case, barrister Albert Luk Wai-hung said magistrates had the power to convict someone who earlier had been acquitted if the case was sent back after an appeal by way of case stated.

The Department of Justice said it had initiated the prosecution in accordance with the Statement of Prosecution Policy and Practice free from any political pressure. The purpose was to clarify the legal principle applicable in such cases for future guidance, a spokesman said.