Confiscation of Falun Gong Banners Ruled Unconstitutional in Hong Kong

February 12, 2015 Updated: February 12, 2015

HONG KONG—For the past two years, the Food and Environmental Hygiene Department (FEHD) in Hong Kong has been interfering with Falun Gong information booths and confiscating banners and materials. Their actions were recently ruled unconstitutional and excessively forceful.

Since the Chinese Communist Party began its brutal persecution of Falun Gong in 1999, practitioners of the spiritual discipline have been explaining the facts about the persecution to citizens and mainland Chinese tourists in Hong Kong. They use information booths to raise awareness of the situation and counter the Party’s propaganda.

Beginning in April 2013, the FEHD, under the administration of Chief Executive Leung Chun-ying, has employed a task force to carry out daily inspections of Falun Gong booths and forcibly confiscate all their banners and panels.

Although Falun Gong practitioners have recently made progress with their lawsuits, the FEHD has ignored the court’s decision and continues to interfere.

Ms. Poon’s Case

50-year-old Falun Gong practitioner Ms. Poon arrived alone at the Chief Executive’s Office in Central on May 2, 2013 to raise awareness of the persecution by holding banners. While she was meditating, around 10 FEHD members arrived.

An FEHD member bagged one of the banners, and Ms. Poon hurriedly took the other banners in her arms. Several members tried to take them away from her, but were unsuccessful and called the police.

10 police officers arrived and asked Ms. Poon to hand over the banners. She refused at first, as she did not think she had done anything illegal.

However, after arriving at the police station to give a witness statement, she was forced to surrender the banners as evidence.

On Aug. 8 that year, Ms. Poon was officially accused of resisting or obstructing a public officer and illegally displaying bills or posters on government land.

After many call-over hearings, Magistrate Marco Li Kwok-wai ruled on Jan. 30, 2015 that article 104A of the Public Health and Municipal Services Ordinance (PHMSO), Chapter 132—prohibition of unauthorized display of bills or posters—is in violation of Hong Kong’s Basic Law and Human Rights Law.

The task force of the Food and Environmental Hygiene Department is taking away Falun Gong demonstration placards and banners in Mong Kok in 2013. (Epoch Times)
The task force of the Food and Environmental Hygiene Department is taking away Falun Gong demonstration placards and banners in Mong Kok in 2013. (Epoch Times)

Article 104A states that no bill or poster shall be displayed or affixed on any government land, except with the written permission of the authority. The article was originally used for the abuse of space for commercial bills, but for the past two years it has been used to accuse Falun Gong practitioners of illegally displaying banners and display boards in public areas without permission.

However, the application form in the Management Scheme for the Display of Roadside Non-Commercial Publicity Materials is actually a well-defined form that states, under Note: (2): “Only the organizations listed at B(1) are eligible to apply. Applications from individuals (except District Council Members and LegCo Members) will not be considered.”

Since Article 104A does not allow for the freedom of expression by individuals, Li ruled it unconstitutional.

Although the article gives the FEHD the authority to remove banners, Li criticized the department for their excessive use of force. He also said that accusing the other party of an offense was a harsh approach.

The representative of the Department of Justice has appealed against Li’s decision, and another hearing has been scheduled. As Article 104A was ruled unconstitutional, it is expected that the charges will be withdrawn at the next hearing.

Ms. Poon said that she is not surprised at the results. She said that exposing the Communist Party’s persecution is not illegal, and she is confident that she will win.

Former Democratic Party community officer Chow Wai-tung, who has been actively assisting Falun Gong practitioners, said the FEHD has used Article 104A to suppress Falun Gong practitioners for a long time, stifling their freedom of expression.

“The court believes that article 104A actually conflicts with the freedom of expression,” Chow said. “The article is being abused by the FEHD, and it is like a knife that stifles human rights. That’s why it is being ruled unconstitutional.”

He thinks this decision is meaningful. “Now that the court has ruled it unconstitutional, this law naturally cannot be used anymore. The government can either amend the legislation so that it will not violate human rights, or make some new legislation to replace it,” Chow said.

Mr. Chan’s Case

Another incident on May 2, 2013 became the first time a Falun Gong practitioner won a case after being falsely accused by the FEHD.

That day, Falun Gong practitioner Mr. Chan was using banners to explain the facts about the persecution at Argyle Street in Mong Kok when a FEHD inspector led 10 task force members to attempt to remove the banners.

After both sides reached a stalemate, the FEHD charged Mr. Chan with the offense of obstructing a public officer.

In court, the video provided by the police department was found to have inadequate prima facie evidence. The defendant lawyer argued that they did not need to respond to such a video, and Magistrate Don So Man-lung agreed.

The judge believed that Mr. Chan did not know the people who came to take the banners were from the FEHD, and they also did not have the authority to take the banners. The removal of banners is only authorized to the inspector level, and the video showed that the inspector did not arrive until the middle of the incident.

The Magistrate ruled Mr. Chan not guilty, and the banners were returned to him. The entire court case took one hour, and Mr. Chan won it on Jan. 29 this year.

Chow said that the victory of this case is very significant, as this was the first case in which the FEHD has falsely accused Falun Gong practitioners and also the first time the ruling was in favor of the accused.

He thinks this case is very representative, as it highlights the fact that the FEHD’s forcible confiscation of Falun Gong banners is politically motivated. This case shows that the FEHD is deliberately trying to suppress the situation, Chow said.

Recently, the FEHD has continued to harass Falun Gong information booths. Chow called on FEHD members to not break the law and not violate the basic human rights of Falun Gong practitioners.

Translated by Veronica Wong. Written in English by Sally Appert.