The court should adopt a looser standard when determining whether Hong Kong’s Covid-19 group gathering limit is constitutional, the Department of Justice (DoJ) argued in court on Wednesday.

The argument came after eight democrats said that their conviction for violating Covid-19 social distancing rules was a disproportional restriction to their rights and freedoms. High Court Judge Albert Wong continued to deal with the appeal on Wednesday.

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

The appellants included former lawmakers Lee Cheuk-yan and “Long Hair” Leung Kwok-hung’ Raphael Wong, Avery Ng, and “the Bull” Tsang Kin-shing from the League of Social Democrats (LSD); and Kwok Wing-kin, Stanley Ho, and Mak Tak-ching from the Labour Party.

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

The group was handed a 14-day jail sentence, suspended for 18 months by Magistrate Cheang Kei-hong. Mak was also ordered to pay an additional HK$2,000 fine for refusing to show his ID card to police officers.

‘A series of factors’

The DoJ refuted the appellants’ argument that they had maintained a 1.5-metre distance between the two groups, saying that the court cannot presume that they were in two separate groups just because there was enough distance between them.

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.

The government argued that the court should also consider “a series of factors,” including whether the groups shared a “common purpose,” whether there was any prior organisation, if there were any interactions between the two groups, and the duration of the gathering.

The DoJ’s representative said that the video of the protest showed that, before the rally took place, the eight democrats stood together in a line and were talking with each other. After the protest began, even though the eight activists walked in two groups, they shouted corresponding slogans, the government said.

Legally, two groups that carried out interactions with each other – such as chatting – would be considered as the same group, the DoJ said.

Protest ‘not a reasonable excuse’

The DoJ also said that the right to protest cannot be seen as a reasonable excuse, or else it would render Covid-19 group gathering limits meaningless.

Barrister Carter Chim, representing Tsang, Ng, and Leung, said in response that it was not their intention “to abolish the entire group gathering limit.” Instead they wanted the court to rectify limits that were “too broad,” and at the same time make restrictions clearer for citizens, he added.

In response to the appellants’ argument that the court should protect constitutional rights protected by the Basic Law, including the right to assembly, the DoJ said on Wednesday that the government had the responsibility to enact measures to protect citizens’ right to life, which was also a constitutional right.

Raphael Wong.
Raphael Wong. File photo: Kelly Ho/HKFP.

Representing himself in court, Wong said in response that the group hoped to strike a balance between protecting public health and protesting, saying that a large-scale protest schedule on that day was already cancelled.

Wong also refuted the DoJ’s claim that using the right to protest as a legitimate excuse would render Covid-19 restrictions useless. He said that top officials having group meals rendered the rules pointless, referring to government officials who broke Covid-19 rules.

Lee, also representing himself in court, questioned whether there were double standards in the government’s policy, asking why all protests and rallies were axed whilst non-political activities were allowed to carry on.

The ruling will be handed down on October 18 as the judge said there were “issues that require deep consideration.”

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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.