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Hong Kong courts

Appeal sought in ruling that protected ex-Hong Kong lawmaker ‘Long Hair’ from contempt

Prosecutors argue case involves ‘constitutional elements’ such as doctrine of separation of powers

PUBLISHED : Friday, 16 March, 2018, 6:44pm
UPDATED : Friday, 16 March, 2018, 11:20pm

Hong Kong prosecutors will appeal against a magistrate’s ruling that lawmakers are protected from prosecution for contempt of the kind ex-legislator “Long Hair” Leung Kwok-hung was charged with.

Acting senior assistant director of public prosecutions Derek Lai Kim-wah on Friday announced the decision to appeal to the High Court, saying the case involved “important questions of law dealing with constitutional elements” such as the doctrine of separation of powers.

“It’s proper that it be canvassed by the Court of First Instance,” he told acting principal magistrate Ada Yim Shun-yee.

Prosecuting ‘Long Hair’ Leung for folder snatch incident ‘unconstitutional’, court hears

The legal debate arose from Leung’s snatching of documents from then undersecretary for development Eric Ma Siu-cheung during a Legislative Council meeting relating to a housing development plan in Wang Chau, Yuen Long, on November 15, 2016.

Leung, 61, has pleaded not guilty to a summons of contempt under the Legislative Council (Powers and Privileges) Ordinance. It was alleged that he created a disturbance that interrupted a meeting.

In response, Leung’s counsel Margaret Ng Ngoi-yee argued that his actions were protected by the absolute privilege of free speech and debate enjoyed by Legco.

The case is believed to be the first since the ordinance’s enactment in 1985 in which a Legco member has been prosecuted under Section 17c, which directly penalises interruptions of Legco sittings.

The West Kowloon Court magistrate ruled earlier this month that the section did not apply to lawmakers because they enjoyed absolute privilege of free speech and debate in the chamber.

Hong Kong lawmaker Leung Kwok-hung’s Legco folder snatch of confidential documents is reported to police

“Legco can only function through its members and any attempt to limit the privilege by an offence of contempt might cause a chilling effect and should be taken cautiously,” Yim said. “Legco is well capable to control and penalise, if it so wishes, any disturbance created by its members during the proceedings to uphold its dignity, where the situation calls for it, without external assistance.”

But prosecutors disagreed with her decision.

The case is expected to be brought up to the higher Court of First Instance to examine the constitutionality of the magistrate’s decision.

If the higher court judge rules against the magistrate, the case will be remitted for trial before a different magistrate.