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‘Private landowner rights’ no justification for Hong Kong government closure of protest spot ‘Civic Square’, court hears

Lawyers in judicial review of decision to seal off protest spot say reasoning is ‘clear error’

PUBLISHED : Wednesday, 06 September, 2017, 7:07pm
UPDATED : Wednesday, 06 September, 2017, 10:58pm

Lawyers for a photojournalist on Wednesday attacked a Hong Kong government claim that it had merely been exercising its “private rights as a landowner” by sealing off the forecourt outside its headquarters in 2014 in a move that essentially banned protests on its doorstep.

A judicial challenge brought by Cheung Tak-wing against the closure got under way on Wednesday morning, with barrister Gladys Li SC telling the High Court it had been “a clear error” for the government to make that claim.

The space in Admiralty – once dubbed “Civic Square” by pro-democracy protesters – had been a popular spot for anti-government demonstrations. But it was sealed off with a three-metre-tall fence in September 2014, and has remained off limits to both protesters and the public.

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The closure prompted Cheung to file a judicial review. But the government’s director of administration at the time, David Chiu Yin-wa, said in a court document that the move was justified by private land rights.

Li told the court on Wednesday that all the public servants and officials working at the headquarters were paid out of the public purse, meaning that to claim the government was the landowner would go against the Basic Law, the city’s mini-constitution.

The law stipulates that the land belongs to the Chinese central government but that the Hong Kong government is tasked with managing it.

“It was built at the public expense,” Li said.

Hong Kong leader Carrie Lam hints Civic Square could reopen after study

The barrister said a discussion in the city’s legislature in 2011 had seen the then deputy director of administration and representatives from Rocco Design Architects, which conceived of the complex, admit that at least a portion of the space was intended as a public passageway linking to the adjacent Legislative Council building. But even that section had been “temporarily” closed, Li said.

Since the closure the government has been running a scheme that allows members of the public to submit applications to use the space. But Li called the scheme restrictive, saying it only applied to Sundays and public holidays.

She resorted to citing an Oscar-winning song to explain her argument to Mr Justice Thomas Au Hing-cheung, despite joking that the judge might be too young to know the piece.

“But never, never on a Sunday, a Sunday, a Sunday, cause that’s my day of rest,” Li said, reciting the lyrics to Never On Sunday, a Greek romantic comedy film from the 1960s.

The government, she said, had done the opposite, meaning that even if there were demonstrations, they would fall on deaf ears on days when officials were not at work.

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She said that had left protesters unable to convey their views to the government.

Between mid-2013 and mid-2014, she said, 710 unauthorised protests took place on weekdays at the square. Of those, 158 demonstrations featured attempts to hand over a petition to officials.

Petitions on Sunday would end up in the hands of security guards, Li said. They might even end up in the rubbish bin.

Countering that argument, barrister Johnny Mok Shiu-luen SC, for the government, asked the court to look at the “substantial character” of the forecourt, a large part of which was meant to serve as a drop-off point for vehicles. He said government personnel should have control of the premises, and they had already partially opened the site upon request on Sundays and public holidays.

Li however questioned how this argument was justified given that entry had also been banned for vehicles.

Popular protest spot Civic Square closed for security works, public access limited

The square is best known for being the base of protesters in a 2012 hunger strike against the proposed implementation of a Chinese national education curriculum in Hong Kong schools.

In September 2014 it was stormed by demonstrators two days before the Occupy pro-democracy protests got into full swing. Three of those involved, former student activists Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang, were jailed last month by an appeal court for their part in the episode.

Watch: riot police deployed after Hong Kong students storm ‘Civic Square’

Mr Justice Au will hand down his ruling at a later date.