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Hong Kong localism and independence

Ignoring Hong Kong National Party’s requests for evidence and more time will boost legal efforts to overturn a ban, source says

Pro-independence group has been given until August 7 to say why it should not be banned but it wants an extension

PUBLISHED : Tuesday, 31 July, 2018, 6:33am
UPDATED : Wednesday, 03 October, 2018, 1:23pm

A pro-independence party labelled as an “imminent threat” to Hong Kong’s national security said it would have a stronger legal case against the authorities if they ignored its demands for more time to respond to a plan to ban it and for police surveillance materials to be handed over.

Such a reaction would only boost the Hong Kong National Party’s efforts to challenge any ban on its operations on the basis of “procedural unfairness”, a member of the legal team of party leader Andy Chan Ho-tin said on Monday.

“The lack of an extension to reply may be grounds to seek a judicial review, if there is a ban on the party,” the source said.

“Even if the evidence the police are relying on comes from media reports, one still has to ensure accuracy in the documents used to [build a case against the party], and Chan just doesn’t have enough time [to go through all the media reports].”

Police tracked pro-independence party for 18 months before trying to ban it

Chan’s legal team issued a request to the city’s Security Bureau for a two-month extension to reply to the ban proposal last week. On Friday, it asked for surveillance materials to be handed over by Monday, three days later.

On Sunday, the police said they were following up on the request for materials. The bureau said it was seeking legal advice on certain demands the party had made.

Two weeks ago, Secretary for Security John Lee Ka-chiu said he was considering a police recommendation to ban the party under the Societies Ordinance.

He gave the party until August 7 – next Tuesday – to submit a written statement convincing him not to give the force’s proposal the green light.

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The force called for pre-emptive action against the party in an 86-page document accompanied by 20 disks and 706 pages of transcripts, speeches and records of the party’s activities.

Last Friday, Chan’s legal team wrote to Assistant Commissioner of Police Rebecca Lam Hiu-tong, who drafted the documents in her capacity as assistant societies officer, and asked for “all records of surveillance and/or observation” and audio or video footage collected of the party that was used to support the ban recommendation to be handed over by Monday.

It is understood that the legal team gave the force a short response time to make the point that while it might be easy for them to ignore a deadline, “the clock was still ticking for Chan”.

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Chan said he suspected the police began surveillance on him and his party from two years ago and may have “cherry-picked” evidence to use in its ban recommendation.

Asked what he would do if the force denied his request for an extension, he said he would consult his lawyers before deciding on his next move.

John Reading SC, former deputy director of public prosecutions, said Chan’s bid for information on the case against him was not likely to be successful but it did pave the way for a potential judicial review.

“It’s just a matter of whether the government is prepared to hand it over out of goodwill – and I suspect they won’t be [handing it],” Reading said.

“It seems unless the court gets involved, the party is not going to get the material it wants.”

Lawmaker and former security minister Regina Ip Lau Suk-yee said the government would likely reject Chan’s demand to provide the surveillance materials, which the force considered confidential.

“As far as I’m aware it’s unprecedented,” she said. “It’s quite inconceivable if the Security Bureau agrees to release such information that concerns operational matters.”

On the extension of the deadline to reply, Ip conceded that the Societies Ordinance did not spell out how many days should be given for the right to reply but she felt 21 days was “really quite reasonable.” For many appeal or disciplinary proceedings, replies have to made within 14 days, she added.

Reading pointed out that the security minister had the discretion to decide on the length of time given for a reply but it had to be reasonable.

“Ultimately it may be for the court to determine whether the time [given] is reasonable or not,” he said.