The International Bar Association’s Human Rights Institute (IBAHRI) and the Bar Human Rights Committee of England & Wales (BHRC) condemn the prosecution, conviction and disproportionate sentencing of veteran Hong Kong pro-democracy figures, including Martin Lee QC, ‘father of Hong Kong democracy’, politician and legislator; Dr Margaret Ng, barrister; and media tycoon Jimmy Lai. They are among seven prominent figures who pleaded not guilty in February 2021 to accusations of organising and participating in an unauthorised assembly: the 2019 pro-democracy protests in Hong Kong.
IBAHRI Director Baroness Helena Kennedy QC commented: ‘The harsher sentence handed down to Jimmy Lai of one-year immediate prison time is a clear assault on the media and designed to chill freedom of expression in Hong Kong, which is a vital component of any democracy. Margaret Ng and Martin Lee have received several accolades for their lifelong defence of fundamental freedoms, democracy and the rule of law. Their sentencing is unjust and represents an assault on the principles of modern democracies worldwide. It must be met with vehement condemnation by the international community. We urge states worldwide to join in condemning the sentencing and take action against the use of law to strip individuals of their fundamental freedoms. We urge the Hong Kong authorities to immediately release those individuals imprisoned and drop all charges against them.’
On 1 April 2021, in respect of a public assembly and procession that had taken place in and from Victoria Park in Hong Kong on 18 August 2019, the West Kowloon Magistrates Court convicted the seven defendants, who were jointly charged of organising an unauthorised assembly pursuant to section 17A(3)(b)(i) of the Public Order Ordinance Cap 245 and knowingly taking part in an unauthorised assembly, pursuant to section 17A(3)(a) of the same Ordinance.
Mr Lee has been handed an eleven-month prison sentence suspended for two years, and lawyers Dr Ng and Albert Ho have each received a one-year prison sentence suspended for one year. Lee Cheuk-yan, Leung Kwok-hung and Cyd Ho Sau-Ian have been imprisoned immediately, with sentences ranging from eight to 18 months.
Mr Lai has been sentenced to one year in prison, 14 months in total owing to a separate custodial sentence being ordered in respect of a separate demonstration, to be served concurrently except for two months. He faces another six charges, two of which lie under the National Security Law. Judge Woodcock stated that this was to be a ‘deterrent’ sentence, saying that during the ‘volatile months’, there was an ‘inherent risk’ to public order.
Former pro-democracy politician and activist Au Nok-hin pleaded guilty to organising and knowingly taking part in an unauthorised assembly, and Leung Yiu-chung, another activist, pleaded guilty to participating in an illegal assembly. They have been sentenced to ten months and eight months, suspended for 12 months, respectively.
Schona Jolly QC, Chair of the Bar Human Rights Committee of England & Wales, commented, ‘The continued misuse of the Public Order Ordinance to silence and repress legitimate and peaceful expressions of dissent, in this case senior figures in the pro-democracy movement, including lawyers and legislators who have worked tirelessly for human rights and the rule of law, is a grave blow to the protection of fundamental human rights in Hong Kong. The prosecutions, convictions and heavy custodial sentences of these dignified and experienced democrats, for their peaceful role in a protest sends a chilling message to Hong Kong citizens that free expression and peaceful protest may result in prison sentences. As Margaret Ng put it so well in her powerful sentencing remarks, “not only is the freedom to speak the truth the core of human dignity, it is also the last safety valve in a democratic society.” Safeguarding that safety valve has reached a critical juncture in Hong Kong, where the right to dissent is now under sustained attack and where there is a high risk that the law will be used to stifle lawful dissent.’
As part of the ‘One Country, Two Systems’ policy, the Hong Kong Basic Law guarantees freedoms that are not available to those in mainland China until 2047. Hong Kong residents are guaranteed the rights to ‘freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration’. Article 21 of the International Covenant on Civil and Political Rights (ICCPR) provides that ‘[t]he right of peaceful assembly shall be recognised.’ Restrictions should be narrowly construed and they are not permissible unless they have been provided by law, and are both necessary and proportionate to a legitimate purpose enumerated within Article 21.
The Basic Law expressly preserves the ICCPR as applicable to the Hong Kong Special Administrative Region. The state has a duty to protect and facilitate such protest, and the Public Order Ordinance must be implemented in conformity with Hong Kong’s obligations under the ICCPR. The United Nations Human Rights Committee has repeatedly expressed concern that charging people under the Public Order Ordinance against peaceful protesters in Hong Kong stands to violate their human rights under the ICCPR.
Other UN Mandates, including the UN Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, Clément Nyaletsossi Voule, have repeatedly urged the authorities to ensure that the Public Order Ordinance is implemented in conformity with Hong Kong’s obligations under the ICCPR.
The imposition of criminal charges on individuals who exercise their right to peaceful protest but who do not comply with procedural requirements, such as notification, are unnecessary, disproportionate and are vulnerable to abuse. The IBAHRI and BHRC call upon the Hong Kong SAR authorities to take immediate and urgent steps to safeguard and ensure that the rights to peaceful assembly and free expression in Hong Kong, including the freedom to dissent, are meaningful and protected, in accordance with international legal obligations and the Basic Law.
In 2019, Dr Ng and Mr Lee were joint recipients of the IBA Award for Outstanding Contribution by a Legal Practitioner to Human Rights for their lifelong defence of fundamental freedoms, democracy and the rule of law.