TNAG-2320-FCO40-3364-Human-rights-in-Hong-Kong-1991 — Page 222

CONFIDENTIAL

FM HONG KONG

TO IMMEDIATE F C O

TELNO 250

HKC241/2

RECE

OF 24051OZ JANUARY 91

CONFIDENTIAL

29 JAN 1991

NUARY!

,PW (NEXT PG)

TRY

·STRY votion Taken

3

151444

MDHIAN 0340

I Human Rights, general

91/HABO11/12)

YOUR TELNO 122 AND OUR TELNO 212: LOUDHAILER CASE: APPEAL

VERDICTS

1

·

THIS TELEGRAM SETS OUT A SUMMARY OF THE JUDGEMENT ALREADY FAXED TO YOU AND OUR ASSESSMENT ON IT.

SUMMARY

2. THE APPEAL HAD TWO HEADS. THE FIRST WAS AN APPEAL AGAINST CONVICTION: THE SECOND WAS AN APPEAL AGAINST THE MAGISTRATE'S

REFUSAL TO STAY THE PROSECUTION IN THE FIRST PLACE. THE APPEAL AGAINST CONVICTION FAILED ON TWO COUNTS. THE CHIEF JUSTICE (SITTING ALONE) RULED THAT FIRSTLY, IN A PROSECUTION FOR COLLECTING MONEY (SECTION 4(17) OF THE SUMMARY OFFENCES ORDINANCE CAP 228) OF FOR THE USE OF LOUDHAILER (SECTION 4(29)), THE CROWN

WAS NOT REQUIRED TO PROVE NUISANCE AS AN INGREDIENT OF THE OFFENCE. SECONDLY, IT WAS NOT A LAWFUL EXCUSE FOR THE APPELLANTS TO MAINTAIN THAT THEY HAD REASON TO BELIEVE, BECAUSE OF PREVIOUS EXPERIENCE OF UNRESTRICTED USE OF LOUDHAILERS AT POLITICAL MEETINGS AND MARCHES OVER THE YEARS, THAT IT WAS PERMISSIBLE TO CARRY OUT THESE TWO ACTS.

3=

THE APPEAL SUCCEEDED ON THE ABUSE OF PROCESS POINT. IT IS USEFUL, HOWEVER, TO NOTE THAT, IN DECIDING THIS ISSUE, THE CJ REJECTED AS NOT RELEVANT THE APPELLANTS' CONTENTION ABOUT GOVERNMENT'S ACCEPTANCE THAT THE LOUDHAILER PROVISION MIGHT POSSIBLY CONTRAVENE THE BILL OF RIGHTS. THE CJ ALSO FOUND THAT THAT PART OF THE U.K. THIRD REPORT TO THE HUMAN RIGHTS COMMITTEE OF THE UNITED NATIONS DEALING WITH HONG KONG, IN PARTICULAR PARAGRAPH 70, COULD NOT AMOUNT TO A REPRESENTATION THAT EXISTING LAWS RELATING TO THE USE OF LOUDHAILERS WOULD NOT BE INVOKED.

4.

HOWEVER, THE EVIDENCE BEFORE THE MAGISTRATE ESTABLISHED A LONG-STANDING PRACTICE OF ROUTINE WARNING WITHOUT PROSECUTION FOR THESE OFFENCES AND THIS LED TO A LEGITIMATE EXPECTATION ON THE PART OF THE APPELLANTS THAT THEY WOULD NOT BE PROSECUTED. A SUDDEN ALTERATION OF THAT PRACTICE WITHOUT PRIOR WARNING WAS

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CONFIDENTIAL