Top Hong Kong appeal court doubts UK ‘lawful excuse’ defence can apply to protests

The legal team quoted two landmark decisions by the UK’s Supreme Court in 2021 and 2022, which allowed for a statutory defence of lawful excuse in cases where the authorities were found to have violated the basic rights of an accused.

But the submission did not appear to impress the five judges on the bench.

Chief Justice Andrew Cheung Kui-nung questioned the need for a trial judge to re-examine the legality of a protest ban imposed under a legal framework which had already been upheld as constitutional after previous judicial challenges.

Cheung said he was “very concerned” over whether the British approach should apply to the city, as that might have a “tremendous” impact on the workings of the criminal courts.

He also highlighted the contradiction in the appellants’ argument that the decision to start criminal proceedings was the prerogative of the justice secretary, yet the court must refuse to convict a defendant who was found to have been wrongly prosecuted.

Fellow justice Johnson Lam Man-hon pushed back at the idea that a defendant could be allowed to challenge a law through the back door, even after it was found to be constitutionally sound in a civil court.

“In Hong Kong, it’s perfectly open for [an] applicant to challenge the law, but it doesn’t mean that if you fail, you still have another go in regards to conviction,” he said.

The court, also presided over by justices Roberto Ribeiro and Joseph Fok, will hand down its ruling later.

The appeal centred on the seven’s roles in the 2019 mass demonstration its organisers said was as a “water flow assembly” at Victoria Park in Causeway Bay.

They were all convicted in 2021 of organising and taking part in the banned march.

A District Court judge imposed jail sentences of eight to 18 months on Lai, the founder of the now-closed Apple Daily newspaper, and three former opposition lawmakers – Lee Cheuk-yan, “Long Hair” Leung Kwok-hung and Cyd Ho Sau-lan.

Martin Lee and ex-legislators Albert Ho Chun-yan and Margaret Ng Ngoi-yee were given suspended jail sentences.

The Court of Appeal reduced the sentences of Lai, Lee Cheuk-yan, Leung Kwok-hung and Cyd Ho after it quashed the organising charges, but they had completed their sentences by the time the verdict was delivered last year.

The top court earlier rejected a request by some of the appellants for a review of its landmark decision in 2005, which implicitly accepted the legality of unauthorised assembly offences.

A prosecution request to reinstate the conviction of the seven for organisation of the march was also refused by appeal court judges.