A Hong Kong busker known for performing an English rendition of protest song Glory to Hong Kong has pleaded not guilty to organising a prohibited group gathering.
Oliver Ma, 24, wearing a pinstripe blue and white collared shirt, denied the charge at Eastern Magistrates’ Court on Thursday morning.
The incident occurred on May 21, 2021, when Ma was playing guitar and singing at the junction of Queen’s Road Central and Theatre Lane at around 10 p.m. The court heard that police arrived on the scene in response to a noise complaint.
After multiple warnings for Ma to stop his performance and leave went unheeded, police arrested him for behaving in a disorderly manner in a public place. His equipment – including his guitar and amplifier – were then confiscated.
The charge was later changed to organising a prohibited group gathering, an offence under Covid-19 regulations. Per the now-expired Prevention and Control of Disease (Prohibition on Gathering) Regulation, anyone found guilty of organising a prohibited group gathering faces a fine of up to HK$25,000 and six months’ imprisonment.
Onlookers stood ‘very close together’
The officer who arrested Ma that night testified on Thursday, telling the court that he first observed the musician from a distance in a police vehicle parked nearby for about 10 minutes. Two other officers, a sergeant and a police constable, were with him.
Government prosecutor Maureen Kong questioned the officer, David Yam, on his observations that night.
Yam said there were around 30 to 40 people surrounding Ma, and that they were standing “very close together.” He added that the music was “very loud” and could be heard from inside the police vehicle.
The witness said that, after getting out of the vehicle, the three officers approached Ma. Yam said he asked if Ma understood Chinese, and whether the officers should speak Chinese or English. According to Yam, Ma said he understood Chinese and that either language was fine.
But when Yam asked if he had a permit for playing a musical instrument in a public place, Ma ignored him. When told there had been a noise complaint and to stop playing, Ma continued to ignore the officers, Yam added.
Yam and the sergeant then turned on their body cameras to record the scene, the footage of which was played in court. In the clips, Ma was seen playing Glory to Hong Kong as police continued to warn him to stop. He then made a gesture with his hands that appeared to call on onlookers to film the scene.
The witness said that onlookers responded to Ma’s gesture by clapping and “making noise.”
“I saw my warnings were in vain and I was worried the situation would get worse, so I arrested him,” he said.
The government has previously said the song is “closely associated with violent protests and the ‘independence’ movement in 2019.” Though the protests attracted a handful of pro-independence activists, it was not one of the movement’s demands. The authorities have since refused to say if the song is unlawful, though it is banned in schools
Doubts over police testimony
The defence began their cross examination of Yam after the prosecution completed their questioning. They said that the officer never informed Ma that he was suspected to be involved in a prohibited group gathering.
Esmond Wong, who was representing Ma, also argued that the police officers’ presence and their move to apporach Ma contributed to the crowd gathering around him.
Ma, Wong said, was not the “only attraction on the scene.”
“The warning itself, as well as the law enforcement action by you and your colleagues, did – in fact – attract citizens to approach the scene and see what’s going on,” Wong said.
Yam replied that he was “not sure about that.”
Wong also cast doubt on the truthfulness and accuracy of the officer’s testimony, suggesting that there were no crowds gathered at all when he was observing from the vehicle.
The barrister established that when Yam was in his vehicle and had no other duties on hand, he did not use his smartphone to film any gathering or turn on his body cam. He then added that this was “because there was no gathering or prohibited gathering at all.”
Yam disagreed, saying that there were people gathered.
Following prompting by the prosecution, Wong said that, when he is on duty wearing his police uniform, he would not use his personal phone to take photos, and would only turn on his body cam in “very urgent situations” and when he perceived it to be necessary.
The trial will continue on Friday with the testimony of a police constable who carried out the enforcement action with Yam.
This was not the first time Ma has been arrested and charged in relation to his busking. In July 2020, he was charged under the Noise Control Ordinance in connection to a street performance in Central. The magistrate ruled that he was not guilty and that the cleaner who complained about the noise had exaggerated the testimony.
A month later, in August, Ma was fined for not wearing a face mask and arrested while performing also in Central. He was suspected of obstructing police officers and possessing an offensive weapon, with police saying they had found a pair of toy handcuffs on him. He was not charged.
Correction 31/5/23: An earlier version of the story stated that the magistrate said the police’s testimony was exaggerated in Ma’s earlier case. It was a cleaner whose testimony was said to have been exaggerated. We regret the error.
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