Hong Kong Appeals Court Overturns Convictions Stemming From 2002 Falun Gong Demonstration

May 24, 2005

The Hong Kong Court of Final Appeal (CFA), in a decision announced on May 5, overturned the convictions of eight Falun Gong practitioners for willful obstruction of police and assault. Hong Kong police arrested the practitioners in 2002 for obstructing a public thoroughfare in the course of a peaceful protest outside the Liaison Office of the Central People’s Government. Several demonstrators resisted police efforts to arrest them for the obstruction. In 2002, a Hong Kong trial court convicted the demonstrators of obstructing a public place, willful obstruction of police, and (in the case of one demonstrator) assault. In 2003, a lower appeals court overturned the public obstruction convictions but upheld the willful obstruction and assault convictions. The CFA decision, which overturned these remaining convictions, provides a stark contrast to recent official pronouncements on the mainland regarding the legality of various demonstrations that have taken place there in recent weeks (see related stories 1, 2, 3).

The Hong Kong Court of Final Appeal (CFA), in a decision announced on May 5, overturned the convictions of eight Falun Gong practitioners for willful obstruction of police and assault. Hong Kong police arrested the practitioners in 2002 for obstructing a public thoroughfare in the course of a peaceful protest outside the Liaison Office of the Central People’s Government. Several demonstrators resisted police efforts to arrest them for the obstruction. In 2002, a Hong Kong trial court convicted the demonstrators of obstructing a public place, willful obstruction of police, and (in the case of one demonstrator) assault. In 2003, a lower appeals court overturned the public obstruction convictions but upheld the willful obstruction and assault convictions. The CFA decision, which overturned these remaining convictions, provides a stark contrast to recent official pronouncements on the mainland regarding the legality of various demonstrations that have taken place there in recent weeks (see related stories 1, 2, 3).

In its decision, the CFA noted that public obstruction is only an offense if it takes place "without lawful authority or excuse." It stated that application of the law on public obstruction must "strike a balance between the possibly conflicting interests of different users of the highway based on a requirement of reasonableness" and found that fundamental, constitutionally protected rights enshrined in the Hong Kong Basic Law, such as the rights to assembly and expression, must be given "substantial weight" in assessing reasonableness. As such, it endorsed the lower appeals court decision to overturn the public obstruction convictions and its holding that the trial magistrate "had failed to conduct the necessary evaluation of the reasonableness of the obstruction in deciding that the demonstrators had acted without lawful excuse; or, if he did make such an evaluation, no reasonable tribunal properly directing itself could have arrived at the conclusion reached by him." It then took the added step of concluding that because the underlying public obstruction arrest (which resulted in the resistance by the demonstrators) was unlawful, the convictions for willful obstruction of police and assault resulting from this initial, unlawful arrest should also be overturned. The full CFA decision and a summary of the judgment are available here.

A May 7 South China Morning Post article indicates that Hong Kong police insiders welcomed the ruling because "they felt the ruling had cleared previously grey areas and would make it easier for them to decide whether a protest had caused an unreasonable obstruction to the public" and "hoped that with more clear-cut guidelines on what kind of protests should be stopped, the police would not be accused of acting under orders from Beijing in stopping events that mainland authorities may not like." Mainland news media, however, expressed displeasure with the CFA's decision. A China Daily editorial decried the ruling, finding it "regrettable that CFA has deviated from the principle that all are equal before the law and has failed to strike a fair and reasonable balance between the public interest and the demonstrators' rights." The editorial suggests discomfort with the conclusion that the application of public obstruction laws must be reasonable, and that fundamental constitutional rights must be given substantial weight in considering reasonableness.

The CFA's decision does not appear to be reviewable by the National People’s Congress Standing Committee (NPCSC) in Beijing. Under Article 158 of the Hong Kong Basic Law, the NPCSC has final power over interpretation of the Basic Law. While the CFA drew upon fundamental rights enshrined in the Basic Law in reaching its conclusion, however, it did not interpret these provisions. Instead, the Court merely acknowledged the existence of such rights in assessing the reasonableness of the application of an internal Hong Kong ordinance and applicable jurisprudence. Thus, the decision appears to involve the interpretation of internal Hong Kong law that under the Basic Law would not be reviewable by the NPCSC.