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Mak Tak-ching of the Labour Party was among the eight appellants. Photo: Sam Tsang

Hong Kong protests: 8 activists lose appeal after judge upholds legality of Covid gathering ban

  • Mr Justice Albert Wong notes ban only restricts the form in which individuals exercise freedom of expression and assembly
  • Appellants comprise members of two opposition parties, who did not pay fines after 2020 demonstration calling for subsidies for jobless
Brian Wong

A High Court judge has upheld the legality of restrictions on peaceful protests in Hong Kong amid the Covid-19 pandemic, as he dismissed an appeal by eight activists convicted of violating a government ban on public gatherings two years ago.

Mr Justice Albert Wong Sung-hau on Tuesday maintained the suspended jail sentences handed to the eight after finding the ban had struck the right balance between safeguarding public health and respecting personal freedom without casting an “unacceptably harsh burden” on the individuals concerned.

Wong noted the ban only restricted the form in which individuals exercised freedom of expression and assembly, adding they could still express their views as long as they observed the social-distancing rule.

Activists Raphael Wong (left) and Tsang Kin-shing chant slogans outside the High Court on Tuesday.

“Although I will not take lightly the restrictions imposed by the measure on the relevant rights, the court should not readily replace public health policies, enacted after authorities took into account medical experts’ opinions and everyone’s interests, with its own,” the judge wrote in his 81-page judgment.

The appeal stemmed from the first protest-related convictions under the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, which took effect in March 2020 criminalising the gathering of more than four people in public.

The ban is likely to be eased from Thursday to allow gatherings of up to 12 people. Group assemblies in public have been subject to limits since March 2020, with the cap tightened to only two people at times.

Hong Kong Labour Party chairman pleads guilty to contempt, obstruction

The eight appellants comprised four activists each from two opposition parties: Lee Cheuk-yan, Steven Kwok Wing-kin, Stanley Ho Wai-hong and Mak Tak-ching of the Labour Party; and “Long Hair” Leung Kwok-hung, Avery Ng Man-yuen, Tsang Kin-shing and Raphael Wong Ho-ming of the League of Social Democrats.

They were each issued a HK$5,000 (US$643) fixed penalty ticket by police for breaching the ban on May 1, 2020, after they carried banners and chanted slogans calling for government subsidies for the jobless amid the pandemic.

But their cases ended up in court after they refused to pay the fine.

Suspended jail terms for opposition activists who flouted public gathering ban

Eastern Court Magistrate Cheang Kei-hong jailed the eight for two weeks after a trial, but suspended the terms for 18 months. He also fined Mak HK$2,000 for failing to produce his identity card upon officers’ request.

Lawyers on appeal argued the eight did not cross the line as they had stayed 1.5 metres apart from each other, the acceptable social distance stipulated in public health regulations.

They also submitted that whether the participants of a public gathering shared a common purpose was irrelevant as it had no impact on the spread of the disease.

Activist Lee Cheuk-yan (centre) and members of the Labour Party protest against a decision to ban an annual march amid the coronavirus pandemic in May 2020. Photo: Sam Tsang

But Wong on Tuesday said it could not have been the authorities’ intent to bar unrelated individuals from going to the same place, otherwise anyone situating themselves in crowded areas would be deemed to have violated the ban.

Maintaining social distance alone could not exonerate the eight from liability, the judge said, adding it was “wishful thinking” for them to believe their gathering did not constitute a health risk.

“Despite being warned about violating the regulation, each [appellant] insisted on having their way, which in truth heightened the risk of spreading the virus at the scene,” Wong said. “A lenient approach to sentencing against this backdrop would inevitably arouse concerns about sending out the wrong message.”

Two of the appellants, Raphael Wong and Tsang, chanted slogans outside court on Tuesday, calling on the city’s leader to lift the public gathering ban and repeal other pandemic measures.

Wong said it was “wholly unreasonable” for the government to continue with its “stringent” public health policies when life was returning to normal in many parts of the world.

“No one in Hong Kong is lying flat,” Wong said, pointing to the high vaccination rate in the city. “The government should at least explain its road map [to normality] instead of keeping it in the drawer.”