A former leader of the group that organised Hong Kong’s annual Tiananmen candlelight vigils has appealed against her conviction and sentence over last year’s banned commemoration.
Chow Hang-tung, ex-vice-chairperson of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China, appeared at the High Court on Tuesday in front of Judge Judianna Barnes.
Chow was convicted of inciting others to take part in an unauthorised assembly and sentenced to 15 months in jail by magistrate Amy Chan in January. Last year’s vigil to commemorate the victims of the 1989 Tiananmen crackdown, when hundreds if not thousands of student-led protesters were killed by the People’s Liberation Army, was banned by the police for the second year in a row, citing Covid-19 health concerns.
Five of the 15 months were to be served concurrently with a 12-month jail term Chow was already serving over the banned 2020 Tiananmen vigil.
Chow entitled to challenge police ban
Representing Chow on Tuesday, Senior Counsel Robert Pang argued that Chow was entitled to challenge the police decision to ban the 2021 vigil, after Chan ruled in January that the court was not the place for Chow to do so.
Pang said that the police had a “positive duty” to help to facilitate assemblies, a duty the police had failed to perform for the commemoration, as officers did not present alternative social-distancing options for the Alliance to consider.
The senior counsel also asked the court to consider the issue of operational proportionality. Pang said that while it was entirely up to the Department of Justice to decide whether to prosecute the ex-vice-chairperson, the court should take into account Chow’s rights when deciding whether to convict her.
During the trial, Chow argued that her arrest and prosecution were a “disproportional limit” to her rights to freedom of speech and freedom of assembly.
Representing the Department of Justice, senior counsel William Tam said that the commissioner of police had already considered the rate of restriction of freedoms and rights when making the decision to ban the vigil.
Tam also said that Chow’s attempt to challenge the decision was a “backdoor way,” as there were other legal options available for the Alliance to do so, including an appeal or a judicial review.
Pang refuted Tam’s argument, and said that appealing the police decision was Chow’s only option as she had not been the one who applied to organise the 2021 vigil, and hence she could not use the appeal mechanism or file a judicial review.
Testimony cannot be taken out of context
During the trial last year, the prosecution relied on articles written by Chow, which were posted on her social media accounts and published in Ming Pao. Chan ruled at the time that Chow’s intention was obviously to incite people to take part in the unauthorised assembly “as quickly as possible.”
Pang said on Tuesday that there could be more than one inference to Chow’s articles, citing comments under one of Chow’s Facebook posts, including “be water, be candle,” and “candles everywhere.”
In the commentary published in Ming Pao, Pang said Chow did not write that people should go to Victoria Park, where previous vigils were historically held.
Tam, however, said that Chow had intended to incite others, as she had said that she really wanted to see candlelight at Victoria Park during testimony.
Pang said in return that Chow’s testimony “cannot be taken out of context,” and that Chow was saying that she hoped people would attend based on the condition that the police allowed the vigil to go ahead.
When sentencing Chow in January, Chan set a starting point of 12 months and added three months, saying that Chow had committed the offence while on bail for the banned 2020 vigil.
Pang said on Tuesday that as Chow received a summons for the 2020 vigil, she had not needed to apply for bail and hence never made the promise not to reoffend. Therefore, the ex-vice-chairperson should not have been given the extra three months.
Tam, on the other hand, argued that it had been “generous” to allow five months to be served concurrently.
Barnes, following submissions from Pang and Tam, asked the senior counsels to confirm the Covid-19 social-distancing restrictions at the time of the offence, and said that she would hand down a ruling before Christmas.
Chow has been remanded in custody since September last year over two other national security cases involving the Alliance. She completed the 12-month sentence over the 2020 vigil in late August, and has begun serving the 15-month jail term in this case.
The Alliance disbanded in September last year following a members’ vote.
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