Hong Kong’s top court said it refused to allow four democrats to launch a final appeal against convictions for breaching social distancing regulations during a Labour Day protest three years ago, because the now-scrapped Covid curbs were no longer an issue “of any general importance.”

Court of Final Appeal
Court of Final Appeal. Photo: Kyle Lam/HKFP.

The judgement was handed down on Thursday, after the Court of Final Appeal on Monday rejected the bid by Labour Party members Lee Cheuk-yan, Mak Tak-ching, Kwok Wing-kin, and Stanley Ho Wai-hong to appeal against their convictions.

It cited submissions by the four appellants, who maintained that questions about the Covid regulations in place at the time were of great and general importance as “there may be similar regulations enacted in response to similar pandemic in the future.”

Labour Day rally

The four pro-democracy figures were among eight people convicted in March 2021 of violating social gathering limits after marching in two groups of four to government headquarters in Admiralty as part of a Labour Day protest in 2020.

The case was the first involving an alleged violation of the limit on group gatherings of more than four people.

Along with the Labour Party members, Avery Ng, Raphael Wong, “the Bull” Tsang Kin-shing, and “Long Hair” Leung Kwok-hung of the League of Social Democrats were all sentenced to 14 days’ imprisonment, with the sentence suspended for 18 months.

Avery Ng
Avery Ng of the League of Social Democrats outside the High Court on July 19, 2022. Photo: Candice Chau/HKFP.

The High Court rejected an appeal against their conviction last October.

Excluding Ng, the other seven applied for leave to appeal but were denied by the High Court. The four Labour Party members then directly filed an application for leave to appeal to the Court of Final Appeal.

Expired regulation

According to Thursday’s judgement, the four Labour Party members sought to raise questions about what was meant by a “group gathering” and what could constitute a reasonable excuse.

They also hoped to challenge the gathering ban, arguing that it involved a “disproportionate and unconstitutional infringement of the freedom of demonstration.”

Their lawyer Anson Wong argued on Monday that the court should consider whether the fact that the gathering was peaceful could amount to a reasonable excuse.

Covid-19 restaurant social distancing
A restaurant in Hong Kong under the Covid-19 pandemic. Photo: GovHK.

But Judge Roberto Ribeiro ruled that the interpretation of the government’s public health regulations was no longer an issue of any general importance, since the regulations had expired in March.

Ribeiro said there was no basis for assuming that the same public health emergency measures, “let alone a regulation having similar wording and calling for a similar construction,” would be issued – citing the government’s frequent amendment of previous Covid curbs.

“What control measures may be required would depend on the nature of the pandemic, its mode of infection and a host of other considerations[,]” he added, citing different public health measures during the SARS outbreak two decades ago.

League of social democrats LSD
(From left) Chan Po-ying, Raphael Wong, Avery Ng, and “the Bull” Tsang Kin-shing outside the High Court on July 19, 2022. Photo: Candice Chau/HKFP.

Appellants in the case had previously said their conviction was driven by a desire to crack down on protests rather than any public health reason. On Monday, Mak of the Labour Party said the court’s ruling amounted to a “complete denial of the freedom of assembly and procession.”

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James Lee is a reporter at Hong Kong Free Press with an interest in culture and social issues. He graduated with a bachelor’s degree in English and a minor in Journalism from the Chinese University of Hong Kong, where he witnessed the institution’s transformation over the course of the 2019 extradition bill protests and after the passing of the Beijing-imposed security law.

Since joining HKFP in 2023, he has covered local politics, the city’s housing crisis, as well as landmark court cases including the 47 democrats national security trial. He was previously a reporter at The Standard where he interviewed pro-establishment heavyweights and extensively covered the Covid-19 pandemic and Hong Kong’s political overhauls under the national security law.