A Hong Kong court has begun to hear closing arguments in a high-profile against 90-year-old Cardinal Joseph Zen and five other pro-democracy figures over a now-defunct protester relief fund.
Prosecutors said requiring the 612 Humanitarian Relief Fund, which provided financial aid to people arrested or injured during the 2019 anti-extradition bill unrest, to register as a local society did not infringe upon freedom of association.
Retired Hong Kong Catholic leader Zen and his co-defendants – barrister Margaret Ng, singer-activist Denise Ho, former legislator Cyd Ho, scholar Hui Po-keung, and Sze Ching-wee appeared before Principal Magistrate Ada Yim at West Kowloon Magistrates’ Courts on Wednesday.
The six each face one charge of failing to register the 612 Fund as a society under the Societies Ordinance within a month after it was established. All defendants were trustees of the fund, except Sze who was employed as the head of fund’s secretariat. The fund disbanded on October 31 last year.
The court ruled last month that there was sufficient evidence to justify a trial against the group.
In summarising their case, lead prosecutor Anthony Chau told the court that the 612 Fund was a society subject to the registration requirement. It did not belong to any one of the 16 types of groups listed in a schedule to which the ordinance did not apply, he said.
Chau also cited a Court of Appeal judgement on a civil case in 1972 relating to a Chinese money loan association, which set out six legal principles for construing what a “society” meant.
The 612 Fund matched some of the indicators listed by the appeal court, Chau said, saying it had operated in the city with an office, as well as held meetings and press conferences. They also organised fundraising and other public activities, and had interactions with other organisations and individuals, the prosecution said.
“If the society was not exempted, then it would be covered by the ordinance,” he said.
According to the prosecution’s estimates, the fund had more than HK$450 million in total deposits and had spent more than HK$446 million.
Freedom of association
The defence had argued that the registration requirement contravened freedom of association protected under the Basic Law and the Hong Kong Bill of Rights. Some also said the requirement did not pass a four-stage proportionality test laid down by the Court of Final Appeal for determining whether a limitation or interference of a right is justified.
The prosecutor responded by saying the ordinance was enacted to safeguard national security, public safety, public order and the protection of the rights and freedoms of other people. There were legitimate aims recognised in the Bill of Rights, Chau said.
There was a rational connection between the legitimate aims and the restriction, Chau argued. He cited a speech by then-justice minister John Bowes Griffin at the first reading of the bill in 1949, when he said social order could be affected by “outside influence” and, thus, it was necessary to keep a record of all societies in the city as well as step up control over the societies. Hong Kong was still a British colony at the time.
The lead prosecutor also pointed to an amendment made to the ordinance in 1992, when the security minister was given the power to reject or or cancel the registration or registration exemption of certain societies.
The registration requirement was no more than what was necessary to achieve the legitimate aim, Chau said, as he discussed the third stage of the proportionality test. He said a society must have sufficient time to prepare information needed for the registration as the application deadline was one month after it was founded, adding that the maximum penalty for first-time offenders was a fine of HK$10,000 only, which was “not harsh.”
“Many societies organise public fundraising and accept donations. The substantial donations received by the 612 Fund should really be regulated,” Chau told the court, adding the registration requirement achieved a “reasonable balance” between the protection of social interests and the encroachment of personal rights.
The defence cited funeral committees, now-Chief Executive John Lee’s election office, and regular reading clubs as examples of association of persons which they deemed as being unclear as to whether they would be regulated by the ordinance. Chau dismissed the examples and said they were irrelevant to the present case, adding they would not fall into the category of constitutional uncertainty.
The prosecutor also dismissed overseas cases cited by the defence, saying they were “not comparable” to the present case. The case background and nature, the ordinances involved, the legislative intent of the ordinances and the points of contention were all “starkly different,” he said.
Chau added that, because there were all kinds of societies in the city, the court should adopt a broad definition and interpret the law with flexibility to reflect the legislative intent of maintaining law and order.
The trial was adjourned to next Monday for the court to hear closing arguments from the defence.
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