May 6, 2005

Text of report by Ravina Shamdasani and Ambrose Leung entitled: "Police urged to consider freedoms"; published by Hong Kong newspaper South China Morning Post web site on 6 May

Before police arrest demonstrators for obstruction they should remember the right to demonstrate is a fundamental freedom under the Basic Law, according to the Court of Final Appeal judgment in the Falun Gong case.

The judgment quashed the Falun Gong members' convictions for obstructing and assaulting police officers exercising their duty and prompted calls from legal experts for better police training and education in protecting constitutionally safeguarded rights.

Court of Final Appeal Judge Mr Justice Kemal Bokhary wrote in the judgment that for powers under the Police Force Ordinance to be constitutional, they have to be read in the context of freedoms and rights guaranteed in the Basic Law.

In determining whether an obstruction was unlawful, officers would have to consider whether it was unreasonable "in the sense of obstruction that the public cannot be reasonably expected to tolerate".

"A court must always remember that preservation of the freedom in full measure defines reasonableness, and is not merely a factor in deciding what is reasonable," Mr Justice Bokhary wrote.

In the Falun Gong case, neither the high-ranking officers nor frontline arresting officers mentioned consideration of the "demonstrators' constitutional right of peaceful demonstration" when testifying on how the decision to arrest was made.

John Clancey, solicitor for the Falun Gong, said the lack of evidence that officers discussed that right showed police needed more training on such cases.

"It will have to be part of the police training programme to consider, when they encounter an obstruction on the street, whether they are demonstrators and, with the fundamental right in mind, consider whether the obstruction is reasonable," Mr Clancey said.

Democrat James To Kun-sun, chairman of the Legislative Council security panel, said the ruling would help protect protesters in similar situations in future.

"It clearly sets out [that] if the reason [for the] arrest is illegal, whatever consequences [occur] as a result - such as the charge of resisting arrest - will also be deemed irrelevant," he said. "I hope police will be more restrained in future and cease being used as a political tool by the government to crack down on dissent."

He said the government should consider removing the flower beds outside the central government liaison office, which he considered a "dirty trick" to crowd the walkway and make it easier for police to ban protests at the site.

Law professor Eric Cheung Tat-ming, of the University of Hong Kong, also said the judgment showed police "may not have sufficient training or education in protecting constitutionally safeguarded rights".

Source: South China Morning Post web site, Hong Kong, in English 6 May 05