Hong Kong’s top court dismissed an appeal on Monday made by former pro-democracy lawmaker “Long Hair” Leung Kwok-hung, ruling that the court can determine the scope of the legislature’s privilege.

The Court of Final Appeal considered the appeal after Leung was charged for allegedly snatching a folder from then under secretary for development Eric Ma’s desk during a Legislative Council (LegCo) session in 2016. The court said his behaviour was not protected speech.

Court of Final Appeal judiciary
Court of Final Appeal. Photo: GovHK.

Leung was initially acquitted of contempt under Section 17 of the Legislative Council (Powers and Privileges) Ordinance by a Magistrates’ Court, which forbids any “disturbance which interrupts” legislative proceedings. But the Department of Justice then filed, and won, an appeal against the Magistrates’ Court’s judgement last June.

The case was set for a retrial, but the Court of Final Appeal approved Leung’s application to appeal the decision this March.

During the appeal, Leung’s representative argued that the Ordinance offered “absolute” protection of free speech and debate or proceedings in LegCo, and that “the courts will not intervene in the conduct of LegCo proceedings,” as explained by the top court in another case.

The former lawmaker also argued that he had immunity from prosecution granted by the LegCo Powers and Privileges Ordinance, as the action happened during a LegCo meeting.

Judge Joseph Fok wrote in his judgement that Leung’s alleged conduct was relevant under Section 17 of the ordinance. The court ruled that a “disturbance” was “defined as the interruption or breaking up of the proper functioning of LegCo, particularly when the rights of others have been interfered with.”

The judgement was agreed upon unanimously by four other judges on the case – Chief Justice Andrew Cheung, Justices Roberto Ribeiro, Patrick Chan, and Lord Robert Reed. They ruled that, while the Ordinance was “designed to protect the freedom of speech and debate in LegCo,” it was also “designed to create a secure and dignified environment” in the legislature.

The court ruled that Leung’s conduct was not “speech or debate” protected by sections 3 and 4 of the Ordinance.

“If the prosecution’s case were to be established, [Leung’s] conduct would have created a disturbance by various acts…,” the judgement read. “In doing so, he was not making speech, nor was he participating in debating any business that was before the meeting.”

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Leung had also argued that “the courts should not exercise jurisdiction over charges” under section 17 of the Ordinance, “as the courts recognise the exclusive authority of LegCo in managing its own internal processes in the conduct of its business.”

In response, the Court of Final Appeal ruled that “it is for the courts to determine the scope of the legislature’s privilege,” and that, by enacting section 17 of the Ordinance as primary legislation, “LegCo had deliberately conferred criminal jurisdiction on the courts.”

After the court handed down the judgement, Leung shouted from the dock saying “shame on retaliation, shame on political prosecution.”

Leung is currently serving jail sentences over protest-related charges. The democrat is also among the 47 charged under the Beijing-imposed national security law after taking part in a primary election for the since-postponed LegCo election.

Legal implication

Chan Po-ying, chairperson of the League of Social Democrats, spoke to the press after the judgement was handed down, and said that she was “disappointed” with the ruling.

Chan Po-ying
Chairperson of the League of Social Democrats Chan Po-ying speaking outside the Court of Final Appeal on September 27, 2021.

“It defined in the judgement, they say that there should be no limitation or restriction [on] the freedom of expression and freedom of speech,” said Chan. “On the other hand, the action and conduct Long Hair had done… it is disturbance, so this conduct is not included in the freedom of speech.”

“I think that will set a very bad example for the future legislative councillors,” Chan said. She added that “any action, any conduct which is not considered appropriate by the government” might be seen as contempt of LegCo in the future.

The chairperson also said that some former pro-democracy legislators were dependent on the ruling on Monday, as they faced similar charges.

Eight former lawmakers were arrested in November last year in connection to a chaotic meeting in May 2020. The group stand accused of contempt or interference with members, officers or witnesses under the Ordinance.

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Candice is a reporter at Hong Kong Free Press. She previously worked as a researcher at a local think tank. She has a BSocSc in Politics and International Relations from the University of Manchester and a MSc in International Political Economy from London School of Economics.