The conviction of eight Hong Kong democrats for breaching Covid-19 social distancing rules during a Labour Day protest was a disproportionate restriction of their rights, a lawyer argued on Tuesday as the group filed an appeal against the conviction and sentence.

Two former lawmakers, “Long Hair” Leung Kwok-hung and Lee Cheuk-yan, who had been sentenced to prison terms for separate protest-related offences and are awaiting trial on national security law charges, appeared before Judge Albert Wong at the High Court on Tuesday.

League of social democrats LSD
(From left) Chan Po-ying, Raphael Wong, Avery Ng, and “the Bull” Tsang Kin-shing outside the High Court on July 19, 2022. Photo: Candice Chau/HKFP.

Other appellants are the Labour Party’s Kwok Wing-kin, Stanley Ho, and Mak Tak-ching, and the League of Social Democrat’s (LSD) Avery Ng, “the Bull” Tsang Kin-shing, and Raphael Wong.

The eight democrats were convicted by magistrate Cheang Kei-hong in March last year of violating social gathering limits after they took part in a Labour Day protest in 2020 in two groups of four people, and marched to the government’s headquarters in Admiralty.

The case was the first trial involving an alleged violation of the limit on group gatherings of four people. Cheang handed the group a 14-day prison term, with the sentence suspended for 18 months. Mak was also ordered to pay an additional HK$2,000 fine for refusing to show his ID card to police officers.

The magistrate ruled at the time that the two groups stood less than 1.5 metres apart and that they had a “common purpose,” making all eight of them part of a banned group gathering.

Ahead of the court hearing, the LSD rallied outside the High Court with a banner reading: “Anti-epidemic in name, oppression in reality; safe distance is not safe enough; the political goal [is to] crack down on protests.”

High Court
High Court. Photo: Candice Chau/HKFP.

Ng said outside the courtroom that the magistrate’s reasoning was “an excuse” intended to stop political parties from holding “reasonable and legal protests.”

Disproportional restriction

Barrister Anson Wong, representing Kwok, Ho, and Mak, argued that the conviction was a disproportionate restriction of their freedoms and rights.

Wong also said that the magistrate, while ruling that the eight shared a “common purpose,” ignored the fact that the two groups purposefully maintained a 1.5-metre distance between each other.

The barrister said the magistrate should not have estimated the distance between the two groups by looking at a video, as it would not be an accurate estimation.

Cheang said in his ruling last year that the democrats had other options apart from protesting, but Wong said on Tuesday that even if there were other options, it should not be used as a reason to restrict the group’s right to protest.

Wong also argued that the sentencing in the case was “obviously too heavy,” and that the magistrate was wrong in not considering the defendants’ right to protest as a reason to impose a lighter punishment.

Creating irrational scenarios

Ng, Tsang, and Raphael Wong, represented by barrister Carter Chim, challenged the constitutionality of the social distancing rules, in addition to the conviction.

Tsang Kin-shing
“The Bull” Tsang Kin-shing outside the High Court on July 19, 2022. Photo: Candice Chau/HKFP.

Chim said that under the prosecution’s logic and the magistrate’s reason that the group shared a “common purpose,” there would be “irrational scenarios.”

The barrister raised the example of tomb sweeping, and said that under the government’s guidelines, family members from different households have to stay in groups of four in order to abide by social distancing rules.

However, according to the Department of Justice, Chim argued that those people could still risk being prosecuted as arguably tomb sweeping would constitute a common purpose.

Chim asked the judge to put emphasis on the physical distance between the two groups, and said that as long as the group had intentionally maintained social distancing, whether they shared a common purpose should not be a deciding factor on the case.

The court to protect rights

Raphael Wong, representing himself, called on the court to protect Hong Kong people’s rights and freedoms.

“If enough anti-epidemic measures are put in place, in theory sharing a common idea would not be the reason for Covid-19 transmission… only ideas are infectious,” said Wong.

Avery Ng
Avery Ng of the League of Social Democrats outside the High Court on July 19, 2022. Photo: Candice Chau/HKFP.

The activist also said that the police had varying standards when enforcing social distancing rules. Wong gave the example of celebratory activities for Keung To, a member of Mirror, one of the most popular boy bands in Hong Kong.

Wong said that over 300 people took part in celebrations in Causeway Bay in April 30 this year, yet according to media reports, no fines were levied that day.

‘Rome can be destroyed in a day’

Former lawmaker Lee, also representing himself, questioned why social distancing limits could trump rights protected by the Basic Law.

“Rome was not not built in a day, but Rome can be destroyed in a day,” said Lee.

He said the group “naively” believed that their protest was legal as long as they maintained the 1.5-metre distance, and added that maintaining social distance was a balance between having anti-epidemic rules and the right to protest.

The representative of the Justice Department will make his submissions on Wednesday.

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Candice Chau

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.