The Department of Justice yesterday told the Court of First Instance it would not press for a retrial of six demonstrators acquitted of unlawful assembly over a 2009 protest even though a High Court judge had ruled that the magistrate erred in law.
The public prosecutor told the court that the decision, which spares the protesters, including lawmakers "Long Hair" Leung Kwok-hung and Lee Cheuk-yan, from prosecution, was based on the time that had passed since the incident.
In 2009, Leung, Lee and activists Richard Tsoi Yiu-cheong, Leung Kwok-wah, Li Yiu-kee and Koo Sze-yiu were protesting outside the central government's liaison office on Connaught Road West, Sheung Wan, against the incarceration of mainland dissident Liu Xiaobo . Guards and policemen asked them to leave a walled and gated area in front of the office, and in the pushing that resulted an officer, a guard and Leung Kwok-wah were injured.
Prosecutor Alain Sham Chung-ping told the Court of First Instance yesterday that the government had sought the appeal, by way of case stated, to clarify the law because the department thought that Eastern Court magistrate Anthony Yuen Wai-ming had made mistakes.
In 2010, Yuen acquitted the six because the area in front of the liaison office was a public place and the activists had the right to protest there. Last month Mr Justice Johnson Lam Man-hon ruled that finding an error in judgment, and set down a hearing for yesterday.
However, Sham told the court that the department had achieved its aim of clarifying the law, and would not seek a retrial because the incident happened three years ago and the verdict was handed down two years ago.
Lam ruled last month that even in public places people did not have an absolute right of entry. He also wrote: "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 premises."
A spokeswoman for the Department of Justice said it had decided not to pursue a court order for the case be sent back to a magistrate's court, taking into account the nature of the offence and the judge's observation that there had been a lapse of time.
"The judgment emphasised the need to achieve a balance between allowing protests to be made and ensuring safety to persons and property. The appeal has helpfully provided clarification on certain important legal principles in relation to public order events," she said.
In court, Martin Lee Chu-ming SC, for the six, apologised for spending a long time negotiating with the department on how the case should be stated.