An elderly man has been acquitted of playing a 2019 protest song on a traditional Chinese instrument in public without a police permit, after a deputy magistrate ruled that the prosecution failed to prove that the defendant had caused obstruction or nuisance.
Li Jiexin, who stood accused of playing an erhu at the Tung Chung Town Centre Bus Terminus on April 29 without a police permit, was found not guilty by Deputy Magistrate Felix Tam at the West Kowloon Magistrates’ Courts on Monday.
The 68-year-old retiree was said to have performed “Glory to Hong Kong,” the unofficial anthem of the 2019 anti-extradition bill unrest, before he was approached by police officers.
When handing down his verdict, Tam ruled that Li’s testimony was “unreliable” as the retiree had given conflicting responses to whether he had used a loudspeaker on the day.
While the defendant admitted he did not have a police permit, that in itself did not constitute an offence, Tam said. The prosecution still had to prove whether Li had any lawful authority or excuse to play the instrument in public, which overlapped with whether the defendant had caused obstruction or nuisance, the deputy magistrate said citing precedent cases from the city’s appeal courts.
A police officer surnamed Ng testified for the prosecution in August that Li and his equipment took up some space on a pedestrian path at the terminus and some people had stopped briefly to watch his performance. Ng also said he could clearly hear Li playing his erhu when standing around 20 meters away from the defendant.
But the officer’s testimony was not sufficient to prove that people were obstructed or disturbed by Li, Tam said. The deputy magistrate cited examples of information that would back prosecution’s case, such as people covering their ears or needing to take another way because their route had been blocked by the defendant.
The prosecutors did not pose relevant questions to Ng, and they only asked Li during cross-examination whether the queues in the bus terminus “snaked,” Tam said, before ruling that the prosecution had not proven their case beyond reasonable doubt.
After he was acquitted, Li told reporters outside the court that he was “very happy.”
Li was initially cleared of the charge in August, when Tam ruled that he had “no case to answer” citing insufficient proof from the prosecution. But the retiree was put on trial later, after the deputy magistrate reversed his decision and said the “negative averments” of the charge meant that the burden of proof was on the defence, not the prosecution, to show whether a permit was obtained.
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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