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The Hong Kong Court docket of Ultimate Attraction unanimously dominated Tuesday that seven activists’ “systemic proportionality problem” to the constitutionality of Part 17A(3) of the Public Order Ordinance is just not moderately debatable. Whereas the courtroom refused to grant depart to the activists on their systemic proportionality problem, the courtroom accepted their “operational proportionality problem” and scheduled their listening to for June this yr.
Part 17A(3)(a) of the ordinance offers that each one who knowingly takes half in an unauthorized meeting shall be liable to imprisonment for 5 years on conviction on indictment. The activists contended that the utmost sentence is disproportionate because it doesn’t entail any violence or dysfunction. The activists additional argued that the utmost sentence has a chilling impact on the train of the rights of free expression and peaceable meeting. Rejecting this argument, the courtroom reasoned that the courtroom has discretion to impose non-custodial measures to the five-year most based mostly on the information of the case. There are not any justiciable points till the courtroom workout routines its discretionary energy.
The courtroom additionally refused the activists’ complaints on different grounds. The activists sought to problem the decrease courtroom’s conviction in claiming that they have been attempting to disperse the gang. The courtroom held that this argument was a factual grievance and located no authorized flaws within the decrease courtroom’s reasoning in concluding a responsible verdict. A defendant, Leung Kwok Hung, sought to enchantment his sentence by alleging that his sentence was manifestly extreme. The courtroom equally held that the decrease courtroom decide had fastidiously reasoned his choice and there are not any grounds that justified the courtroom to intervene within the choice.
Beforehand, the federal government sought to problem the decrease courtroom’s reasoning as a very slim interpretation of “organizing” within the provision. The courtroom rejected that argument because the organizer was identifiable and the defendants weren’t thought-about to be affiliated with the organizing physique.
Accordingly, the courtroom will solely hear one enchantment from this case in June this yr. Beforehand, the activists obtained depart from the Court docket of Attraction to problem the operational proportionality of the police enforcement. The activists sought to ask the courtroom to conduct an operational proportionality train, which was adopted by the UK Supreme Court docket in 2021. If the courtroom concludes that the police disproportionately interfered with the defendant’s freedom of meeting, the defendants might be entitled to the statutory protection of lawful excuse.
The appropriate to peaceable meeting is protected by Article 21 of the Worldwide Covenant on Civil and Political Rights. Amnesty Worldwide, Human Rights Watch and the United Nations Human Rights Committee (UNHRC) beforehand acknowledged that requiring people to use to the police to show is opposite to the proper to peaceable meeting. The UNHRC additionally commented on September 17, 2020 that failing to satisfy sure home authorized necessities doesn’t place organizers and individuals exterior the scope of the safety of Article 21, so long as the conduct of individuals in an meeting is peaceable.
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