Acquittal of June 4 activist overturned

Hong Kong's top court has reinstated activist Tonyee Chow Hang-tung's conviction for incitement to join an unauthorized June 4 vigil in 2021.

Chow, former vice chair of the defunct Alliance in Support of Patriotic Democratic Movements in China, was originally sentenced to 15 months in jail by a magistrate.

But upon her appeal, the High Court in December 2022 cleared her conviction..

The Department of Justice appealed to the Court of Final Appeal, and its five judges - Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Ribeiro, Joseph Fok, and Johnson Lam Man-hon, and nonpermanent judge Anthony Gleeson - ruled in favor of the DoJ.

The five judges unanimously restored Chow's conviction and remitted her appeal against her jail term to the High Court for determination.

Chow has remained in jail as she faces a separate national security charge.

The judges hold different views on whether Chow could challenge the legality of the police restraining order targeting the vigil by way of defense in criminal proceedings.

In a written judgment, Cheung said Chow could not challenge the ban on the vigil as a defense, as event organizers or participants could only file a judicial review to challenge the prohibition instead of doing so in criminal proceedings.

If a defendant is allowed to reopen the question of the validity of a prohibition in the prosecution, it would "certainly weaken the authority of a prohibition and might encourage people to hold and attend the public meeting despite the prohibition, in the hope that in any subsequent criminal prosecution, they would succeed in challenging the legality of the prohibition," Cheung said.

"This would lead to uncertainty and confusion among the public as to whether they could attend the meeting. Nor would police know if they could lawfully arrest or take other actions against those assembling despite the prohibition.

"All this would be to the detriment of the protection of any relevant interests of national security, public order, public safety, or the protection of the rights and freedoms of others."

Cheung also said the Public Order Ordinance highlights this and the importance of regulating and controlling the holding of public meetings.

He emphasized the history of stages that the city has seen during mass gatherings, Hong Kong's small geographical size, and national security where applicable.

Lam agreed to Cheung's opinion, but the other three judges believed Chow could challenge the legality of the prohibition by way of defense.

Chow's challenge proved to be unsuccessful as the prohibition was deemed "a proportionate and legitimate measure" by Ribeiro, considering the need to ban a large gathering amid the pandemic.

wallis.wang@singtaonewscorp.com