The Societies Ordinance in Hong Kong was designed to tackle triads and other “disreputable” groups rather than all unincorporated trusts, a defence lawyer has said, as the case against 90-year-old Cardinal Joseph Zen and five other pro-democracy figures over a defunct protester relief fund continues.
Principal Magistrate Ada Yim on Monday heard closing arguments by counsels representing the veteran Catholic leader Zen, barrister Margaret Ng, singer-activist Denise Ho, former lawmaker Cyd Ho, scholar Hui Po-keung, and Sze Ching-wee over an alleged failure to register the 612 Humanitarian Relief Fund as a society within a month after it was established in June 2019.
Founded in the wake of the anti-extradition bill unrest, the fund provided financial aid to people arrested or injured during the protests. It also offered medical treatments, psychological counselling, legal advice and representation to protesters, before disbanding in October last year.
All defendants were trustees of the fund except Sze, who was hired to manage it. All pleaded not guilty to the offence, which carries a maximum penalty of a HK$10,000 fine for first-time offenders.
Representing Zen, Senior Counsel Robert Pang on Monday challenged the prosecution’s reliance on a 1972 Court of Appeal case as proof that the 612 Fund fell within the scope of the Societies Ordinance.
The judgement was handed down 50 years ago when the Hong Kong Bill of Rights and the Basic Law were not yet formulated, Pang told the magistrate. The case – which involved a Chinese money loan association, Yim Wai Tsang – “would not be a good law” in construing the meaning of a “society.”
“The legal landscape is very different,” he said during Monday’s hearing at the West Kowloon Magistrates’ Courts. “To impose criminal sanctions on the failure to register [under the Societies Ordinance] must be an infringement of freedom of association.”
Lead prosecutor Anthony Chau said last week that the ordinance was enacted to safeguard national security, public safety, public order and the protection of the rights and freedoms of other people. The registration requirement was no more than what was necessary to achieve the legitimate aim, he said.
Pang went on to say that the five trustees were not members of a society as they did not have any “mutual rights and obligations.” They could not sue one another or request another trustee to take part in a meeting, he said.
But the argument was challenged by the magistrate: “Each of them had the right to use the fund, the right to make decisions… aren’t these rights?”
The lawyer responded by saying the defendants were merely fulfilling their duties of running the fund, adding that those who established the fund did not necessarily mean they were a “society.” He also pointed to the lack of membership in the fund as evidence that it was not a society, saying it did not have any appointment of offices or any annual or emergency general meetings.
Senior Counsel Ambrose Ho, on the other hand, revisited the legislative history of the Societies Ordinance to suggest that the court must consider the context and purpose of the legislation, as well as words used in the text in interpreting the relevant provisions.
The ordinance stemmed from the Triad and Unlawful Societies Ordinance with combating triad societies as its aim, the lawyer said. He pointed to a speech made by the then-attorney general in 1982, when he said reputable groups would have “nothing to fear” under the Societies Ordinance.
“The prosecution’s starting point of catching all [unincorporated associations] unless exempted is obviously not what the legislature targeted,” Ho said, adding “by-catchers” were not intended.
Both Pang and Ho argued that the English text of the ordinance and its Chinese translation showed discrepancies in the meaning of “society” and “association of persons.” They called on the magistrate to adhere to the English text when construing the meaning of the provisions.
The case was adjourned to Tuesday morning for other defence lawyers to make closing arguments.
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