Hong Kong lawmakers are not immune from contempt charges if they disrupt Legislative Council meetings, the appeal court ruled as it gave the green light to restore criminal proceedings against ex-member “Long Hair” Leung Kwok-hung.
The former opposition lawmaker was set to stand trial over a 2016 incident in which he snatched a folder from a government official during a Legco meeting, until a magistrate two years later found the charge not applicable to a member and concluded his actions were covered by privilege.
But the Court of Appeal on Tuesday sided with prosecutors in finding the offence must apply, given it was created to ensure the legislature could properly discharge its constitutional functions, and excluding a member from the law would defeat that purpose.
The three-judge panel therefore sent the case back to the magistrate and directed her to proceed with the trial.
The case raises the question of how far lawmakers are protected by the Legislative Council (Powers and Privileges) Ordinance when they interrupt meetings while exercising their freedom of speech and debate in the legislature.
Leung, 64, is believed to be the first member prosecuted under the 1985 ordinance’s section 17c which directly penalises interruptions of Legco sittings.
Other lawmakers have since been prosecuted, including Eddie Chu Hoi-dick, Lam Cheuk-ting and Kwok Ka-ki, who were charged under a separate section for interrupting a meeting on the now-withdrawn extradition bill on May 11 last year. But their case has been put on hold pending the present appeal.
Leung has pleaded not guilty to a contempt charge alleging that he created a disturbance during a Legco committee meeting on November 15, 2016, causing it to be interrupted or likely to be interrupted.
He was accused of snatching a meeting folder containing some confidential documents from then undersecretary for development Eric Ma Siu-cheung and passing it to another lawmaker for him to read, while ignoring repeated demands for him to return those papers and go back to his seat.
Leung was then booted out of the meeting, while a security guard retrieved the folder and returned it to Ma.
Defence counsel Margaret Ng Ngoi-yee had argued that lawmakers were protected by freedom of speech and that this provision should extend to cover the manner of expression, or it would instil a chilling effect.
She also said that a member’s disorderly conduct fell within the legislature’s internal affairs and that Legco had sufficient disciplinary powers to deal with such cases.
If section 17c did apply to a member, Ng argued that the court would be interfering with Legco’s internal affairs and infringing the constitutional doctrine of separation of powers.
But the Chief Judge of the High Court, Mr Jeremy Poon Shiu-chor, said the purpose of conferring privileges and immunity on lawmakers was not to put them above the law, but to ensure they could carry out their role without fear or any outside interference.
Whether Legco had a particular power, privilege or immunity depended on whether it was necessary to the legislature’s capacity to function as a legislative body, he said.
“Is it inherently necessary for the proper functions of Legco to give its members … the freedom to disorderly conduct themselves … thereby disrupting Legco’s business or infringing other members’ freedom of speech and debate?” Poon continued. “The answer must be a resounding ‘no’.”
Disorderly conduct that interrupted, or was likely to interrupt, Legco meetings was therefore not protected by privilege, he said.
Poon also observed that the legislative intent clearly meant to include lawmakers and cover all proceedings to achieve the aim of the ordinance.
He rejected suggestions of a chilling effect as he noted that lawmakers were still entitled to exercise their freedom of speech and debate so long as they did not frustrate the very purpose of the privilege granted.
He also ruled the section constitutional because it conformed with the doctrine of separation of powers by recognising that only the courts had judicial power.
Court of Appeal vice-president Mr Justice Johnson Lam Man-hon and Mr Justice Derek Pang Wai-cheong backed the judgment.
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