by ELLIE NG
The High Court has overturned a bind-over order of the Democratic Party’s lawmaker Ted Hui Chi-fung over clashes with security guards at a district council meeting in 2014.
Hui was charged with assault after staging a sit-in protest in 2014 against the “black box” decision-making process of the Central and Western District Council. Although a magistrate acquitted Hui last year, he ordered the lawmaker to sign a year-long good behaviour bond at the prosecution’s request. Hui appealed against the sentence and won on Friday.
In overturning the sentence, Mr Justice Judianna Barnes said Thursday that the magistrate did not take into account the reasons behind Hui’s action, HK01 reported. She said Hui only tried to barge into the meeting after holding a days-long sit-in protest, and that Hui did not intend to injure the two security guards during the clashes.
The judge added that it was an isolated incident and there was no evidence that Hui had a violent tendency. Therefore, she said, there was no basis for issuing a bind-over order, a preventive measure against possible breaches of the law.
Welcoming Friday’s ruling, Hui said: “This shows that the court should not constrain the conduct of protesters as long as they maintain the bottom line of nonviolence. I hope that lawmakers and members of the public will continue to fight against injustices courageously.”
The lawmaker also urged the government to refrain from using “political prosecution” as a means to suppress dissent. He added that he had been troubled by the lawsuit for more than a year.
Human rights lawyer Jonathan Man told HKFP that it is not normal for the court to order a binding over when a defendant is acquitted.
Barrister Chris Ng of the Progressive Lawyers Group told HKFP that a bind-over order is typically proposed by defendants in cases of “petite crime” where they have no previous criminal record. In addition, the magistrates will normally ask the defendants if they are willing to accept the order and the facts of the case.
“It is unusual and to an extent unfair to Hui that the prosecution would even ask for bind over after Hui took all the effort and suffering to prove his innocence,” Ng said. “Why should he be bound by things he did not admit he has done or that is not a crime?”
In 2014, the Central and Western District Council attempted to pass a HK$250,000 funding bill to promote the Basic Law at a closed-door meeting and via email. One of the council’s members, Ng Wing-yan, was also alleged to have a conflict of interests as he was the applicant for the funding while sitting on the committee that approved the funding, Apple Daily reported.
In response, Hui and his party colleague Ng Siu-hong, both councilors of the district, staged a protest demanding the council increase transparency and hold a public meeting. Despite the duo’s opposition, the bill was eventually passed.
District councils are tasked with allocating public money for local works and community activities, but some have criticised the legal loopholes in the funding allocation process.
Kwai Ching councilor Eric Lam Lap-chi said there are no laws requiring the councils to disclose documents or hold public meetings, thereby allowing council members to evade accountability. He added that some councilors have close ties to groups that have received funding.
The government said in 2014 that of the 104 committees and 253 working groups under the 18 district councils, only three committees and 16 working groups had vetted or approved funding applications at closed-door meetings.
Article originally appeared in Hong Kong Free Press on 16 December 2016.