This research study examines the restrictions on the right to freedom of assembly in Hong Kong with particular emphasis on the ruling in Leung Kwok Hung and its importance to the rationale for restricting freedom of assembly. A comparative analysis is conducted with reference to Hong Kong’s case law and international jurisprudence relative to freedom of assembly. This study is therefore divided into two main parts. The first part of the paper will examine Hong Kong’s freedom of assembly regime and the second part of the paper will examine the international jurisprudence on freedom of assembly.
Hong Kong’s Freedom of Assembly Law
The Sino-UK Joint Declaration of 1984 which provided for the transfer of Hong Kong to the People’s Republic of China (PRC or China) contained an undertaking to maintain the pre-existing fundamental human rights including freedom of assembly. China implemented the Basic Law 1997 which reflected its undertaking under the Joint Declaration of 1984 to maintain a one country, two system framework with respect to its sovereignty over Hong Kong. This meant that Hong Kong could continue to adhere to the laws in place at the time of the handover. Shortly after the handover of Hong Kong however, China reneged on some of its key guarantees under the Joint Declaration and among its broken promises, announced that there would be restrictions on a number of freedoms including freedom of assembly....
uding freedom of assembly.5 With the handover of Hong Kong in 1997, Hong Kong became a Special Administrative Region (SAR) of China.6 The SAR government amended and repealed parts of the Hong Kong Bill of Rights Ordinance (BORO) 1997, the Public Order Ordinance and the Societies Ordinance, laws that were previously introduced by the British government prior to the handover to China, in 1992 and 1995. The amended law provides that demonstrations comprised of at least 30 persons must first obtain police approval. Secondly the Public Order Ordinance and the Societies Ordinance stipulate that associations are required to register under the approval of the SAR government in order to obtain legal status. Moreover, national security is the broad basis upon which the police may refuse to permit an association or a demonstration.7 B. Current Law on Freedom of Assembly Essentially, the Basic Law 1997 as promulgated on behalf of the SAR retains for Hong Kong, the fundamental freedoms and rights existing in Hong Kong at the time of the handover to China. As a result the Basic Law and BORO provide the primary methods by which the executive and the legislature exercise their respective authorities. Likewise the two instruments also guarantee Hong Kong residents civil rights protection such as the freedom of association, of assemble, of procession, free speech, free press and freedom of demonstration.8 Freedom of Assembly is provided for in Article 17 of BORO and is characterized as Freedom of Peaceful Assembly. Article 17 provides that: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security