The MTR Corporation has won an appeal against League of Social Democrats Vice-chair Jaco Chow over his protest inside the paid area of an MTR station two years ago.
The events took place at Tai Wai station in March 2016. Chow – who was collecting signatures for a petition against the Express Rail project inside the paid area – was asked by a MTR officer to stop using a loudspeaker and leave the premises.
When he failed to do so, he was subsequently charged with failing to comply with an MTR official’s “reasonable direction and request” – an offence under MTR by-laws.
The deputy magistrate had initially acquitted Chow, noting that, while Chow had intentionally disobeyed instructions, the paid area was public, adding that Chow and other protesters were not radical, nor was there evidence of the protest turning violent.
The deputy magistrate also said that Chow was exercising his freedom of expression, and therefore restrictions to this freedom must be necessary and proportionate. The prosecution had failed to prove beyond reasonable doubt the necessity or urgency of the directions, he ruled.
However, on Tuesday the Court of First Instance reversed the decision, allowing MTRC’s appeal and ordering a guilty verdict to be imposed on Chow. The case will be sent back to the Fanling Magistrates’ Court for sentencing.
Non-compliance with directions by MTR officers fetch a HK$2,000 fine under the MTR by-laws.
In reaching the decision, Court of First Instance judge Wilson Chan said the directions requiring Chow to leave the station and stop using the loudspeaker were reasonable, considering: the obstruction that may be caused in the paid area; the “accumulative impact” if the area is opened up for occupation by demonstrators; the alternative venues available to Chow for the protest; and other considerations.
Judge Chan also said that it would be rare for a refusal of access to the paid areas of the station to be regarded as unconstitutional.
With regards to whether the paid area was a public or private space, Chan said: “It is relevant that the nature of the Corporation is that of a private (as opposed to a Government) business enterprise not unlike, for example, a publicly-listed bus company operating a government granted franchise.”
In a statement from the League of Social Democrats, Chow said that the railway station was a public area and was not, as stated in the judgment, closer to the nature of a private space.
Chow also said that they did not cause serious obstruction to the public and they were properly exercising their rights during the protest.
According to the statement, Chow did not agree with the judgment that their actions would trigger more protests and obstruct the public, and said such comments undermine the right to protest.