Case Summary and Outcome

The Court of Final Appeal of the Hong Kong Special Administrative Region granted leave to activist and media proprietor, Jimmy Lai, and other protestors on the limited question of whether courts must conduct an operational proportionality assessment before convicting individuals for knowingly taking part in an unauthorized assembly under Section 17A(3)(a) of the Public Order Ordinance. The case arose from a 2019 protest where Lai and other applicants led a large procession from Victoria Park to Chater Road despite a police ban. While the Court overturned their convictions for organizing the assembly, it upheld their convictions for participating in it. The Court of Final Appeal dismissed all other grounds of appeal, including constitutional challenges and claims of grave injustice, but agreed that the proportionality issue raised matters of general importance warranting full appellate consideration.

Note: The above question concerning the proportionality assessment remains pending as of July 2025.

Facts

On August 18, 2019, amidst widespread social unrest in Hong Kong, the Civil Human Rights Front (CHRF) sought to organize a public gathering to protest against perceived police abuses. The CHRF followed the procedural requirements of Hong Kong’s Public Order Ordinance by notifying the Commissioner of Police of its intention to conduct a public meeting at Victoria Park, followed by a public procession to Chater Road. The group expected around 300,000 participants. It named Figo Chan as the event organizer. On 15 August 2019, the Commissioner of Police approved only the Victoria Park meeting but prohibited the proposed procession and concluding meeting at Chater Road on the grounds of public safety, public order, and the protection of others’ rights. The Appeal Board upheld the Commissioner’s decision the next day.

Despite this partial approval, the CHRF publicly expressed dissatisfaction with the prohibition. It announced at a press conference that, due to the absence of police arrangements for dispersal, “pro-democracy legislators and influential people” would assist participants in dispersing safely. On August 18, 2019, the authorized meeting occurred at Victoria Park. At around 3:00 p.m., a large crowd, including the defendants, Lai Chee Ying (also known as Jimmy Lai), Lee Cheuk Yan, Margaret Ng, Leung Kwok Hung, Cyd Ho, Albert Ho, and Martin Lee, departed from the park, holding a prominent banner and marching toward Chater Road, following the previously proposed but officially prohibited route.

Jimmy Lai, along with the six other co-accused, was charged under Section 17A(3) of the Public Order Ordinance. The charges included organizing an unauthorized assembly (Section 17A(3)(b)(i)) and knowingly taking part in an unauthorized assembly (Section 17A(3)(a)). According to the prosecution, Jimmy Lai and other protestors allegedly led the procession, shouted slogans, and carried banners articulating the movement’s demands. 

On April 1, 2021, District Court Judge Amanda Woodcock convicted Jimmy Lai and six others of both charges—organizing an unauthorized assembly and knowingly taking part in it. The convictions were based on evidence that they had led a large crowd in a public procession from Victoria Park to Chater Road on 18 August 2019, despite a police prohibition. Judge Woodcock found, based on extensive video evidence and news footage, that Jimmy Lai and the others did not merely help disperse the crowd but instead knowingly led a mass procession, in defiance of the prohibition. She rejected their claim of facilitating dispersal, observing that the group used only one exit, followed the originally planned route, made no effort to encourage dispersal at multiple MTR stations, and called on bystanders to move aside to allow the march to proceed.

For Judge Woodcock, the procession, though peaceful and massive, had the potential to cause significant disruption. The District Court emphasized that despite the absence of violence, Jimmy Lai and the other protesters’ actions posed a serious risk of disorder during a volatile time. Judge Woodcook found that their conduct lacked lawful authority or reasonable excuse under the statute and that the process had not been spontaneous or safety-driven, but rather a calculated act of civil disobedience.

Jimmy Lai and the other protestors filed an appeal before the Court of Appeal. On 14 August 2023, the Court of Appeal granted it in part and overturned their convictions for organizing the unauthorized assembly. However, it upheld their convictions for knowingly taking part in the unauthorized assembly under Section 17A(3)(a), finding that the evidence clearly established their active participation in a prohibited procession despite a police ban.

Following that, Jimmy Lai and the other protestors filed applications for leave to appeal before the Court of Final Appeal of the Hong Kong Special Administrative Region, challenging the Court of Appeal’s decision to uphold their convictions under Section 17A(3)(a) of the Public Order Ordinance. 

Decision Overview

Justice Ribeiro PJ delivered the unanimous decision of the Court of Final Appeal of the Hong Kong Special Administrative Region. The primary issue before the Court was whether, in prosecutions under Section 17A(3)(a) of the Public Order Ordinance for knowingly taking part in an unauthorized assembly, courts must conduct an operational proportionality assessment—that is, to evaluate if a conviction would amount to a disproportionate interference with the rights to freedom of expression and peaceful assembly protected under the Basic Law and the Hong Kong Bill of Rights. The Court certified this issue as raising a point of great and general importance and granted leave to appeal on this limited question.

Jimmy Lai and the other protestors contended that their convictions violated fundamental rights, including freedom of expression and peaceful assembly. They argued that their participation was not a criminal activity but amounted to a lawful and necessary act of crowd dispersal, especially in light of the police’s refusal to do it in Victoria Park. They further submitted that the courts failed to assess whether their convictions were operationally proportionate in light of these rights. Some applicants also sought to mount a systemic constitutional challenge to Section 17A(3), arguing that the provision was disproportionately harsh and had a chilling effect, particularly given its five-year maximum sentence, even for peaceful, non-violent protests.

For its part, the prosecution contended that the defendants were not merely dispersing the crowd but leading a deliberately defiant and unauthorized procession, following the same route originally proposed and prohibited by the police. The prosecution asserted that under Section 17A(3), the act of knowingly participating in such a procession, especially in the presence of widespread publicity about the ban, clearly constituted an offence. It also argued that no operational proportionality assessment was required for such prosecutions, and that the legal framework under the Public Order Ordinance had already been upheld as constitutional by the Court in earlier decisions. The prosecution further sought leave to appeal against the Court of Appeal’s decision to overturn the “organizing” convictions.

After considering the contentions raised by the defendants and the prosecution, the Court of Final Appeal granted leave to appeal only on a limited and certified question concerning whether courts are required to conduct an operational proportionality assessment when applying Section 17A(3)(a) of the Public Order Ordinance. The Court held that this issue raised “matters of great and general importance” and warranted consideration. [para. 4] It accordingly allowed the appeal on this narrow ground for Jimmy Lai and the other co-applicants. 

The Court rejected all other grounds raised by the applicants. It found that the factual findings of the District Judge and the Court of Appeal were sound and supported by overwhelming evidence. To judge Ribeiro, the Court of Appeal thoroughly assessed the video footage and circumstances of the procession and concluded that it was not a “dispersal plan born out of necessity” but a “planned unauthorized assembly.” [para. 21] The Court stressed that Jimmy Lai and the other protestors marched at the head of a large crowd, carrying a banner with slogans and following the exact route that had been prohibited, which clearly established their knowing participation in an unauthorized procession.

The Court also declined to grant leave to the prosecution’s application to reinstate the convictions for organizing the procession. It found that the definition of “organize” was not satisfied merely by leading or heading the procession, and that the facts did not support a finding of planning—or managerial control—by the defendants. On this point, the Court endorsed the Court of Appeal’s interpretation that “to organize” connotes “some responsibility for, or active participation in, arranging, planning or managing” the event, which the prosecution failed to establish. [para. 15]

Furthermore, the Court rejected the systemic constitutional challenge raised by some defendants against Section 17A(3)(a), finding it not reasonably arguable. It held that the contested statutory provision, which prescribes a range of sentencing options up to five years’ imprisonment, was not in itself disproportionate or unconstitutional. The Court affirmed that its earlier decision in Leung Kwok Hung v HKSAR, (2005) remained binding, and that the existing statutory scheme for controlling public processions had already been upheld as constitutionally valid. 

In conclusion, the Court dismissed all other applications for leave to appeal,  including those based on systemic constitutional challenges, evidentiary challenges, or sentencing grounds. However, the Court allowed the appeal on the question of operational proportionality and its consequences. The case is scheduled to proceed to a full appeal only on the above question.