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Tuesday, 11 November 2014

Conclusion of Hong Kong Judgement on Protest Movement

I have been sent a copy of the judgement handed down concerning the so-called "Umbrella" protests.
Here's the conclusion.

""139. The concept of the rule of law must include and embrace the notion that every resident and the government alike should obey and comply with the law. As said by Hartmann J (as the learned NPJ then was) in Secretary for Justice v Ocean Technology Ltd (t/a Citizens’ Radio) [2010] 1 HKC 456 at paragraph 9, the concept of rule of law means that every resident of Hong Kong are governed by and bound to the operation of the law.
140. Under the rule of law, even if the defendants are of the view that a court order (including an ex parte order) is wrongly granted, instead of simply disobeying it, they should first comply with it but seek to challenge and argue against that order in court under due process and in accordance with the law. As said by Hoffmann LJ (as Lord Hoffmann then was) in Department of Transport v Lush (unreported, 29 July 1993)[29]: “…the law cannot allow obedience of its orders to be a matter of individual choice even on grounds of conscience”.
141. It is therefore wrong for any suggestions that the rule of law is not undermined or under challenged if people can freely or intentionally disobey the law first and then accept the consequences of breaking the law. The rule of law cannot realistically and effectively operate in a civilised and orderly society on this basis.
142. The upholding of the rule of law must therefore be built upon, among others, the due administration of justice for the enforcement of court orders and the law. This is also one of reasons why the independence of the Judiciary, and the respect for the dignity and authority of the court are fundamental tenets of the concept of the rule of law.
143. However, recent events relating to these actions have shown that there is a real risk that the due administration of justice and the respect for the authority of the court, and therefore the rule of law in Hong Kong, would be seriously undermined:
(1) As I have mentioned above, the ex parte injunctions, which are valid and proper court orders until set aside, have been openly disobeyed and flouted by the defendants en masse.
(2) Not only that, and worryingly, there have also been repeated open suggestions by a number of public figures (including some legally trained individuals) to the public and the protestors and demonstrators en masse to the effect that ex parte injunctions need not to be complied with until they had been determined after an inter partes hearing, and that there is no challenge to the rule of law from merely disobeying civil orders, and that the rule of law is only threatened when there is disobedience of an actual order of committal for contempt of court. As I have said above, these suggestions, with the greatest respect, are in my view wrong and incorrect and would cause the public and the defendants an unwarranted misunderstanding on the concept of the rule of law.
144. When the rule of law and the due administration of justice are at the risk of being seriously challenged and undermined, as it is now, the court must act and strive to protect and uphold them for the benefit and best interest of the general public.
145. The present circumstances therefore undoubtedly justify and call for the inclusion of the police authorisation direction in these injunction orders. The direction would send a clear message to the defendants that civil court orders should be obeyed and about the serious consequences for breaching them."

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