The Kowloon City Magistrates’ Courts will proceed with an unlawful assembly case against disqualified lawmakers Baggio Leung and Yau Wai-ching, as well as their three assistants.
The group have been charged with participating in an unlawful assembly, in addition to an alternative charge of forced entry during chaotic scenes at the legislature in 2016. Magistrate Wong Sze-lai ruled on Tuesday that the defendants have a case to answer, meaning that there is sufficient evidence to proceed with the case.
On November 2, 2016, the pair tried to barge into a meeting room following Legislative Council President Andrew Leung’s decision to bar them from attending any meetings. At the time, the duo were facing a judicial review filed by the government challenging the validity of their oaths of office as lawmakers.
Two weeks after the incident, the High Court ruled that the oaths of Yau and Leung were invalid, thereby disqualifying them from the legislature. The pair had argued that they were still lawmakers before the ruling was made.
On Tuesday, their lawyer argued that, in October 2016, Court of First Instance judge Thomas Au refused to issue an injunction to bar them from taking the oath again. Though Beijing later issued an interpretation of the Basic Law, the duo still had the right to enter the meeting room at the time of the incident, the lawyer said.
In response, the prosecution said that the Court of Final Appeal ruled last August that they were no longer considered lawmakers after they failed to take their oaths correctly on October 12, 2016, citing Beijing’s interpretation. Leung and Yau staged a protest during their oaths, prompting the legal action.
The prosecution said it had never acknowledged that the duo were lawmakers at the material time. It said that only some of the witnesses called them lawmakers.
It added that, even if the pair were deemed to be acting in the capacity of lawmakers during the commotion, they had used force and their actions still amounted to unlawful assembly.
However, the defence argued that criminal offences have no retrospective effect under Article 12 of the Bill of Rights Ordinance, suggesting that the duo should not be held criminally liable for what was legal at the time.
They asked the magistrate to postpone the case so they may examine legal arguments, on the basis that the dispute over the duo’s lawmaker status is material to the case. Their request was refused.
Leung and Yau may take the stand and testify in the court. The trial will continue on Thursday.