A Hong Kong court has revoked its decision to clear an elderly man of playing a protest song on an erhu in public without a police permit over insufficient evidence from the prosecutors.
The magistrate said the burden of proving whether the accused had prior approval to play his musical instrument publicly was on the defence, not the prosecution.
Deputy Magistrate Felix Tam on Friday reversed a decision he handed down just four days ago, when he ruled that 68-year-old Li Jiexin had no case to answer and gave him HK$500 court fees in return.
The Mandarin-speaking defendant was said to have performed Glory to Hong Kong – dubbed the unofficial anthem of the 2019 anti-extradition bill unrest – on the two-stringed Chinese instrument at the Tung Chung Town Centre Bus Terminus on April 29 without a permit from the Commissioner of Police. He denied the charge.
On Monday, Tam said the prosecution – led by an external barrister surnamed Yu – failed to present enough proof to back their case that Li did not acquire a permit from the police chief, which is an offence under section 4 (15) of the Summary Offences Ordinance.
But he called for a review of the decision on Friday, saying the current case concerns permit-related offences and he did not take into account the “negative averments” of the charge in his original ruling.
Section 94A of the Criminal Procedure Ordinance stipulates that it shall not be necessary in an indictment, charge, complaint or information alleging an offence to disprove any exception or exemption from or qualifications of the law creating the offence.
The provision also states that the prosecution does not have to submit evidence to disprove any matter to which the subsection applies, while the burden of proof “lies on the person seeking to avail himself thereof.”
The prosecution, represented by a senior prosecutor surnamed Lam and barrister Yu, sided with the deputy magistrate. Lam cited a case authority to back the argument that the prosecution was not required to provide proof.
Li, who had no legal representatives, maintained that the prosecution did not have the evidence to build a case against him. He questioned why he was prosecuted when there were many other street performers in Hong Kong whom he suspected held no police permit.
The senior citizen also said he visited the police headquarters twice to seek the permit without stating the dates of the visits. A female officer allegedly told him the police would not handle permit applications citing the Covid-19 pandemic. He said he wanted to call upon police chief Raymond Siu to testify that he “did not issue any permit to anyone.”
“This is a fake ordinance… it is messing with us citizens,” Li told the West Kowloon Magistrates’ Courts.
Tam responded by saying Friday’s hearing only concerned reviewing his decision and would not handle evidence or anything for the main trial.
After hearing submissions from both sides, Tam eventually withdrew his initial ruling and said Li had a case to answer. The defendant can decide whether or not to testify in the trial hearing scheduled for next Friday, or call upon any witnesses.
According to section 4 (15) of the Summary Offences Ordinance, any person who without lawful authority or excuse plays any musical instrument in any public street or road save under and in accordance with the conditions of a permit from the Commissioner of Police shall be liable to HK$2,000 fine or imprisonment of three months.
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