Hong Kong pro-democracy activists convicted of violating Covid social distancing rules during a protest in 2020 have been denied a chance to appeal to the city’s top court.

High Court.
High Court. File photo: Kyle Lam/HKFP.

The High Court handed down the judgement to seven members of political parties Labour Party and League of Social Democrats (LSD) on Thursday, concluding that their conviction and sentence were “proportional in the circumstances.”

The application for a certificate – required to seek permission to appeal – was submitted by LSD’s Tsang “the Bull” Kin-shing, Raphael Wong, and “Long Hair” Leung Kwok-hung, and the Labour Party’s Lee Cheuk-yan, Kwok Wing-kin, Stanley Ho and Mak Tak-ching last Friday.

They were among the activists who took part in a protest on Labour Day in 2020, when they formed groups of four and marched to the government’s headquarters in Admiralty.

The group was arrested on suspicion of violating a Covid-19 group gathering ban. They were convicted and handed a 14-day prison term suspended for 18 months.

LSD protest CE election 2022
A protest staged by the League of Social Democrats on May 8, 2022, ahead of the 2022 Chief Executive Election. Photo: Kyle Lam/HKFP.

The attempt to take the case to the city’s top court comes after the group’s appeal against the conviction to the High Court in July failed. According to the judgement, published in October, judge Albert Wong upheld the magistrate’s ruling that they shared a “common purpose” and that regardless of whether they had maintained a 1.5-metre distance, the two groups were close to each other.

While the High Court did not issue the activists the certificate, they may still apply directly to the Court of Final Appeal.

First Covid-related protest conviction

Hong Kong’s group gathering ban was enacted in March 2020 to control the spread of Covid-19. A clause under the then newly-introduced ordinance allowed the chief executive to implement regulations on the grounds of a “public health emergency,” bypassing local legislature.

Court of Final Appeal judiciary
Court of Final Appeal. Photo: GovHK.

At the rule’s tightest, public gatherings were restricted to two people. The ban – which activists have accused authorities of using to outlaw protests – was lifted on Thursday along with other relaxations.

This case marked the first time a Hong Kong court handed down a sentence over breaches of Covid-19 social distancing regulations during a political demonstration.

Addressing reporters outside High Court, LSD chairperson Chan Po-ying said the activists hoped the Court of Final Appeal – where the appeal, if allowed, would be heard – could clarify how a balance could be struck between anti-epidemic laws and the public’s rights to assemble.

“We hoped the court could act as a gatekeeper and [look into] whether the government has overstepped,” Chan said. “The stated aim [of the gathering ban] was to prevent the spread of the virus, but in reality, it was a political attack on citizens’ rights.”

Tsang Kin-shing Chan Po-ying
Activists Tsang Kin-shing (left) and Chan Po-ying (right) speaking to reporters outside the High Court on Dec. 29, 2022. Photo: Hillary Leung/HKFP.

Tsang, of the LSD, said the gathering ban had no scientific basis to begin with and was “illogical.”

He added that there was power in the public taking collective action. “A sheet of A4 paper changed the country,” referring to protests in mainland China late last month during which demonstrators held up blank sheets of paper in opposition of the country’s hardline anti-epidemic measures. China has since relaxed most of its Covid-19 rules, causing the virus to spread rapidly.

The attempt to take the case to the city’s top court comes after the group’s appeal against the conviction to the High Court in July failed. The judge said then that the activists had shared a “common purpose” and that regardless of whether they had maintained a 1.5-metre distance – as required by Covid rules – the two groups had been close to each other.

Need for caution

At the time of the activists’ protest in 2020, public gatherings of more than four people were not permitted in Hong Kong.

Covid-19 public gathering limit
A banner warning against group gatherings. File photo: Rhoda Kwan/HKFP.

With the delivery of the court’s judgement coinciding with the first day on which Hong Kong’s gathering ban was lifted, the LSD members were asked by reporters if the party would organise political demonstrations again.

Chan said the party needed to be “very cautious” and assess the risks to both themselves and those partaking. The airing of opposition views, Tsang added, could be seen as a subversion offence under the national security law.

“With the cancellation of the group gathering ban, citizens have the right to assembly and protest. How can we use this right and express our views?” Chan said. “That is [an] important [question].”

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Hillary Leung

Hillary has an interest in social issues and politics. Previously, she reported on Asia broadly - including on Hong Kong's 2019 protests - for TIME Magazine and covered local news at Coconuts Hong Kong.