Cuban revolutionary leader Che Guevara's words came back to haunt his biggest fan in Hong Kong yesterday. Government lawyer Gerard McCoy SC quoted the iconic rebel in the Court of Final Appeal in a response to a question from legislator 'Long Hair' Leung Kwok-hung, who is appealing against a conviction for holding an unauthorised assembly in contravention of the Public Order Ordinance. Replying to Mr Leung's demand on Tuesday for a government assurance that it would not seek an interpretation of the Basic Law from Beijing if it lost the case against him, Mr McCoy borrowed a phrase from Mr Leung's revolutionary hero, whose face was emblazoned across the legislator's customary T-shirt. 'Silence is an argument carried on by other means,' said Mr McCoy quoting Che Guevara and explaining that the fact that he did not answer was an answer in itself. Even Mr Leung could not suppress a smile at the reply. Mr McCoy added that Mr Leung's question could instead be posed 'down the hill and across the road' in the Legislative Council. Mr Leung is representing himself in the appeal process, while co-defendants Christopher Fung Ka-keung, 25, and Chris Lo Wai-ming, 29, are being represented by barrister and legislator Martin Lee Chu-ming SC. Mr Lee on Tuesday attacked the constitutionality of the entire scheme of the Public Order Ordinance, saying it was incompatible with the fundamental freedom of assembly. But Mr McCoy yesterday said the appellants had gone beyond the scope of the appeal in their arguments, warning that many elements of the scheme brought into question were irrelevant to this particular case. He said the issue for the court to decide should be the narrow one of the constitutionality of the notification system under the ordinance. 'It would be wholly inappropriate for a court at the apex of the judicial system to be dealing with these issues for the first time, without the benefit of a Court of Appeal decision on a number of issues [Mr Lee] has tried to advance,' he said. '[He] complained about the conditions that the Commissioner of Police could impose on protest organisers, but there were no conditions imposed in this case because his clients decided not to apply for notification,' Mr McCoy said. 'The court ought not to decide these issues. I am concerned that this can be taken too far ... and imaginatively misused in other cases as a precedent for someone to come to the courts, complain about some small part of an ordinance and then say I can now minutely examine the rest of it.' But Chief Justice Andrew Li Kwok-nang asked if Mr McCoy was suggesting the issues be kept open for constitutional challenges on another day. Mr Justice Kemal Bokhary said it would be awkward for the court to declare that the provisions 'may or may not be constitutional'. The case continues today.