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Hong Kong courts

Hong Kong district councillor loses final appeal over her Nazi banner-waving protest at Legco

Court accepts chamber’s rules as proportionate and constitutionally valid

PUBLISHED : Wednesday, 04 October, 2017, 6:50pm
UPDATED : Wednesday, 04 October, 2017, 9:11pm

A Hong Kong district councillor who was fined after yelling and waving a Nazi banner while protesting a landfill expansion plan during a legislative debate three years ago lost her final appeal on Wednesday at the city’s highest court.

The five judges at the Court of Final Appeal unanimously dismissed the action brought by Sai Kung district councillor Christine Fong Kwok-shan, 51, and accepted that the Legislative Council’s rules restricting protests at the chamber were proportionate and constitutionally valid.

But the judges did not accept the prosecution’s claim that the public had no right to express themselves in the public gallery owned by the government, saying the argument “subjugated a fundamental constitutional right to property interests”.

Fong was previously fined HK$2,000 for twice violating the council’s administrative instructions when she yelled and displayed a Nazi banner during a Legco subcommittee meeting in May 2014. She was protesting against a plan to expand a landfill in Tseung Kwan O.

The independent district councillor wore a T-shirt that read “protect Tseung Kwan O” and held a banner bearing a swastika, the symbol of Adolf Hitler’s Nazi Party, and yelled in the council’s public gallery during a meeting on May 7, 2014.

A week after, on May 13, she was found yelling in the public gallery in a similar protest.

Fong was convicted of two counts of contravening the administrative instructions under the Legislative Council (Powers and Privileges) Ordinance, and was fined HK$2,000 by the Eastern Court in 2015.

Her two assistants were also convicted for their roles in the protests. They appealed, but the High Court ruled against them in May last year.

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Fong appealed to the highest court to overturn her convictions on grounds that the council’s administrative instructions had infringed the right to freedom of expression, as protected by the Basic Law and the Bill of Rights, and were thus unconstitutional.

The five judges who heard the case last month were Chief Justice Geoffrey Ma Tao-li, permanent judges Mr Justice Roberto Ribeiro and Mr Justice Joseph Fok, and non-permanent judges Mr Justice Patrick Chan Siu-oi, and Lord Justice Neuberger.

I don’t think the public must be completely silent inside the chamber
district councillor Christine Fong

In the 42-page judgment handed down on Wednesday, Ribeiro accepted that “creating a disturbance by demonstrating in the public gallery” during a Legco subcommittee meeting constituted “a contravention” of the administrative instructions.

“A reasonable balance has plainly been struck between the benefit to the society of enabling Legco properly to carry out its constitutional functions on the one hand and the limited restriction on the guaranteed right of freedom of expression on the other.”

He accepted that the administrative order was “clearly a proportionate and valid restriction on the right”.

Fong maintained the public should have their freedom of expression protected.

“I hope society, the Legislative Council, and the government should also think about it – whether

the freedom of speech of citizens entering government premises or [the] Legislative Council chamber should be abridged. I don’t think the public must be completely silent inside the chamber,” she added, stressing that her protests had been non-violent.