Restrictions on the freedom of assembly must be proportionate

Hong Kong’s courts have had another busy week handling cases with political sensitivities, three years after the city’s anti-government protests. The most eye-catching, ironically, concerned a gathering that did not happen.

Chow Hang-tung was jailed for 15 months in January for inciting people to unlawfully take part in the June 4 vigil last year. The event, held annually for 30 almost years before the pandemic, was banned by police on public health grounds.

But Chow, former vice-chairwoman of the group that organised the vigil to commemorate victims of the Tiananmen crackdown in 1989, won her appeal. Her conviction was quashed. The judgment, in the Court of First Instance, raises important principles. The government is expected to ask the top court to overturn it.

Chow was convicted as a result of commentaries published soon after confirmation of the ban. She was found to have incited people to attend Victoria Park, the traditional venue for the event. This was considered a crime because the vigil was banned and therefore unlawful.

The event, long seen as one of the most potent symbols of Hong Kong’s freedoms, usually attracts many tens of thousands of people. It was banned for the first time in 2020 on public health grounds as the pandemic took hold. The police have used the same justification for the past two years.

It was not so easy to justify in 2021. At that time, Hong Kong had few Covid-19 cases. Cinemas and amusement parks were allowed to open at 75 per cent capacity and almost 8,000 people attended a football match. Critics of the ban argued it was based on political rather than health grounds.

A key question in the appeal was whether the ban was lawful. The government argued the issue could not be considered in a criminal trial. It said the prohibition had been ordered by police and upheld by an appeal board. The only way of challenging it was through a judicial review.

But the judge, Judianna Barnes, disagreed. She said the public order law did not rule out consideration of this critical point in criminal proceedings. Barnes ruled the government had failed to establish the legality of the ban. The police, she said, did not fulfil their legal responsibility to consider measures that might have allowed the event to safely proceed.

Such steps could have included extending the time period for the vigil to prevent overcrowding, requiring masks to be worn and banning eating and drinking.

Chow, said the judge, had incited people to attend despite the police prohibition. But if the ban was not lawful, such a gathering could legally proceed. Chow’s incitement would, therefore, not constitute a crime.

The judge provided a timely reminder of fundamental legal principles. Restrictions on the freedom of assembly must be proportionate. This means they cannot go further than necessary. The police have a duty to actively facilitate public assemblies, where feasible.

Fair play was a key consideration. Chow was not able to challenge the police ban when it was considered by the appeal board. Her first opportunity to do so was during her criminal trial.

The decision might not help Chow much. She remains in custody, along with other leading members of the Hong Kong Alliance in Support of Patriotic Democratic Movements in China, accused in a separate case of inciting subversion. The organisation, disbanded last year, had long called for the end of one-party rule in China.

The future of the June 4 vigil will be in doubt next year, even if the pandemic is no longer an issue. It remains to be seen whether anyone is willing to organise the event, given the risk of being arrested for sedition or national security breaches.

But the principles highlighted by the judge should not be forgotten. The government’s measures to tackle Covid-19 and perceived threats to national security must be proportionate. Peaceful public gatherings should be facilitated. These are important safeguards as Hong Kong emerges from the pandemic.