Hong Kong’s top court overturns acquittal of Tiananmen vigil activist Chow Hang-tung after justice department’s appeal

She was the vice-chairwoman of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China before its dissolution in September 2021.

Chow was acquitted by a High Court judge in December 2022 on the grounds that police had failed to fulfil their positive duty to facilitate the scheduled assembly, rendering its ban on the vigil unlawful.

The justice department then filed an appeal against the acquittal, which the Court of Final Appeal approved last June.

Thursday’s ruling looked at whether the defendant had the right to a defence challenge over the assembly ban, as well as the correct approach by the court in considering her challenge if that was the case.

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The judges involved in the verdict were Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Ribeiro, Joseph Fok, and Johnson Lam Man-hon, and non-permanent judge Anthony Gleeson.

Cheung said Chow did not have the right to challenge the police ban’s legality as a defence in criminal proceedings, stressing the validity of the prohibition “was not an essential element” of the unauthorised assembly offence.

He added it was “clear” that the decision from the Security Bureau’s appeal board to dismiss the alliance’s appeal against the police ban was “final”.

“The authority of a prohibition would be weakened if a defendant could reopen the question of the prohibition’s validity in criminal proceedings despite confirmation by the Appeal Board, to the detriment of national security, public order, public safety and the rights and freedoms of others,” the judgment said.

“Thus, a formally valid prohibition, namely one which has not been reversed by the Appeal Board or quashed by judicial review, was sufficient for criminal liability.”

Lam agreed with Cheung, saying that judicial review was the only method to challenge the police ban.

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But Ribeiro, Fok and Gleeson noted Chow had the right to question the legality of the assembly ban. All four of them, however, acknowledged that her legal challenge had failed.

They disagreed with Madam Justice Judianna Barnes, who had acquitted Chow, that police had failed to discharge their positive duty and consider or propose possible conditions to enable the vigil to be held.

“The [police commissioner] is merely required to consider whether the specified interests can be met by appropriate conditions, without requiring him to take the initiative to devise and propose conditions,” the judgment said, adding police and the appeal board had considered the possibility of imposing conditions.

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They said it was “reasonable” for police to determine the organisers had failed to provide satisfactory arrangements to achieve an acceptable level of safety under the pandemic.

“Thus, the prohibition was a proportionate measure which represented a fair balance between the restriction on the right of peaceful assembly and the societal benefits of the prohibition of the meeting,” the judgment said.

The court also ruled that the sentence appeal would be referred to the judge of the Court of First Instance for determination.

Since 1990, the alliance had held the yearly June 4 candlelight vigil in Victoria Park to mark the crackdown on the democratic movement in Beijing a year earlier, which was the only large-scale commemoration of the incident on Chinese soil.

The event was prohibited in 2020 and 2021 on public health grounds due to the Covid-19 pandemic, while police had claimed that the purpose of the vigil was to provoke public hatred towards authorities to revive the 1989 movement and overthrow the central government.

The alliance appealed against the police ban in 2021 but it was dismissed by the appeal board.

Despite the board’s rejection, Chow promised to honour the “tradition” in a post on her social media pages and a local newspaper.

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She also urged the public to assemble in “the same place” to mourn those who died during the crackdown. Her remarks led to her arrest and conviction.

Chow is currently jailed in the maximum-security Tai Lam Prison under the Beijing-imposed national security law on charges of inciting subversion in relation to her position in the alliance.

She was last imprisoned for 4½ months last March after she refused to assist national security police in a probe into the alliance’s alleged subversion offence. She and two other former standing committee members have filed an appeal against the convictions.