There is no freedom of expression in Legco public gallery, government lawyer claims

Members of the public who attend Legislative Council meetings do not have a right to freedom of expression, a government lawyer told Hong Kong’s top court on Monday.

The comments from deputy director of public prosecutions Anna Lai Yuen-kee SC surprised the five-judge panel presiding over an appeal lodged by Sai Kung district councillor Christine Fong Kwok-shan.

Fong is seeking to overturn her convictions for displaying a Nazi poster and loudly protesting against landfill expansion in Tseung Kwan O while she was in the public gallery during two Legco meetings in May 2014.

“The right to freedom of expression is not engaged at all,” Lai told the Court of Final Appeal. “This is our primary position.”

Chief Justice Geoffrey Ma Tao-li said it seemed “odd” that such a fundamental right would be excluded completely in a public place, while Mr Justice Roberto Ribeiro said: “This must be questionable.”

At issue is whether Legco’s Administrative Instructions for Regulating Admittance and Conduct of Persons, which Fong’s convictions were based on, are constitutional – consistent with the principle of freedom of speech guaranteed by the Basic Law and the Bill of Rights.

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Defending Fong, Hectar Pun Hei SC argued that individuals permitted access to a public place must be allowed to exercise freedom of expression.

He explained that his client was trying to make a point with her displays and hoped to influence meeting outcomes. She claimed Tseung Kwan O residents were not properly represented in the meetings.

The court heard Fong wore a T-shirt that read “Defend Tseung Kwan O” and displayed a poster with a Swastika sign because she felt the handling of the issue amounted to a dictatorship akin to the Nazi regime.

“That should be permitted if she does not disrupt proceedings,” Pun said.

But the government replied that, in the present case, the right to freedom of expression was not engaged in the first place, in light of Legco’s particular nature and the special circumstances allowing limited public entry.

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“They were admitted with one purpose and one purpose only, to watch the proceedings, instead of making their opinions known,” Lai said.

Even if such rights were engaged, Lai argued that the instructions were justified and necessary for the legitimate aim of ensuring the proper functioning of Legco.

Judgement was reserved and a verdict will be issued at a later date.