South China Morning Post Reports on Politically Motivated Trial in Hong Kong

South China Morning Post: No keeping politics out of court

August 16, 2002

The imposing colonial courtrooms at Western Magistracy have, over the years, played host to numerous cases of causing an obstruction in a public place. It is a routine offence, created decades ago, which is normally used to impose minor fines on errant street hawkers.

But yesterday, when Magistrate Symon Wong Yu-wing stepped into court No 2 to deliver his verdict in such a case, he found the old wooden benches packed to capacity. And among the onlookers were representatives from the United States, British and Canadian governments.

This, of course, was no normal obstruction case. This was the first trial in Hong Kong involving the Falun Gong movement, which has been banned on the mainland since 1999. It was also the first to test the extent to which the Basic Law protects the right to demonstrate.

There were 16 defendants, four of them Swiss nationals, who had been arrested during a demonstration outside the Beijing Liaison Office on March 14. As well as two obstruction charges, some were accused of assaulting police.

The trial, which lasted a staggering 26 working days and involved what the magistrate described as an "enormous" amount of evidence, seemed to take on a significance beyond that of the relatively minor offences involved.

It was fought out in an intensely political climate.

Defence lawyers argued that persecution of the Falun Gong movement on the mainland had now apparently been extended to Hong Kong. This, they argued, had led not only to the arrest of the defendants during a peaceful demonstration, but had influenced the manner in which the prosecution conducted its case. Defence barrister John Haynes claimed the police had adopted a policy of refusing to allow demonstrations outside the liaison office.

At one stage an application was made by a second defence counsel, Paul Harris, for the magistrate to stand down on the grounds that he might be perceived to be biased.

The prosecution, for its part, accused the defence of trying to use the trial for political ends, and highlighted what it alleged to be a carefully planned Falun Gong demonstration aimed at achieving the maximum media exposure, even if that meant breaking the law. "It was well organised, media outlets were contacted, press releases prepared and a large banner constructed," said prosecutor Kevin Zervos in his closing address.

[...]

Bachmann, having had his mainland visa cancelled, decided to stage a three-day hunger strike in Hong Kong instead. He decided the liaison office was the appropriate venue and was joined by the other defendants.

At the heart of the defence case was the argument that the area outside the office was easily large enough to accommodate a small demonstration, without causing an obstruction to anyone. The most inconvenience it would cause members of the public would be that they might have to make a minor detour.

Mr Haynes argued that you could stage a small football match or a mini-concert in the space where the demonstration was held. He said the pavement area was 140 sq metres, while the demonstration occupied a space of just seven sq metres.

This is where the political element, arising from Falun Gong's mainland ban and concerns about its position in Hong Kong, start to bite. All the prosecution witnesses who spoke of members of the public being obstructed by the demonstrators were either police officers or members of a security team employed at the liaison office.

Mr Haynes said it was surprising that no uninterrupted demonstrations had ever successfully been held there.

Prosecutor Mr Zervos hit back by arguing that members of the public had clearly been obstructed. But he added that even if this was not the case, the prosecution should still succeed.

This was because it was only necessary to prove that the actions of the defendants "may" have caused an obstruction.

But the defence had another card up its sleeve. Mr Harris argued that the conduct of the Falun Gong members could not amount to a crime because the obstruction laws must be interpreted in accordance with the constitutional protection provided by the Basic Law of the right to demonstrate.

It would only be if their conduct was unreasonable that it would become unlawful. Any demonstration might potentially cause some obstruction to someone.

If the right to demonstrate was going to be a meaningful one, then there must be a permissible element of obstruction or potential obstruction, argued Mr Harris. The prosecution countered by suggesting that if the magistrate held the obstruction laws to be unconstitutional, then any peaceful demonstration would be able to block a road, pavement or public place, even if it caused danger to the public.

Such issues call for detailed legal analysis. It was somewhat disappointing that Mr Wong's consideration of the constitutional arguments was relatively brief.

[...]

It is almost certain that the magistrate's verdicts will be challenged and it would not be surprising if the case ended up at the Court of Final Appeal. When this happens, the political issue concerning the Falun Gong's treatment will not have gone away. The higher courts have, in other cases, demonstrated a willingness to stand up for human rights. The Falun Gong issue will be a particular test for them, as they seek to strike the right balance between freedoms and public order. The judges can be expected to subject the legal issues to more detailed analysis, and it is important that political considerations do not get in the way.

In the meantime, renovation work is reducing the size of the pavement outside the liaison office, making it less easy to hold a demonstration which does not cause an obstruction. As Mr Haynes, no doubt with a wry smile, said: "One advantage is there will be no more cases like this."

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