The legal team representing a Hong Kong pro-democracy busker charged with organising a prohibited public gathering has cast doubt over the reliability of a police officer’s testimony.
Oliver Ma, 24, appeared at Eastern Magistrates’ Court on Friday for the final day of his two-day trial over a street performance in Central two years ago.
The busker arrived at court around an hour late. Magistrate Minnie Wat said he had “no reasonable ground” to think the trial began at 11:30 a.m., as Ma’s lawyer told the court, as he was present on Thursday when she adjourned the trial to 9:30 a.m. the next day, and ordered him to surrender a cash bail of HK$500.
On Thursday, the prosecution summoned David Yam, the officer who arrested Ma, to testify. The court was also shown three videos, including footage from body cameras worn by the officers at the scene.
Giving their closing statements on Friday, barrister Jay Koon said Yam’s reliability was “very doubtful,” calling his assessment “not coherent with what we saw him doing.”
The incident occurred on May 21, 2021, when Ma was playing guitar and singing at the junction of Queen’s Road Central and Theatre Lane at around 10 p.m. The court heard that police arrived on the scene in response to a noise complaint.
After multiple warnings for Ma to stop his performance and leave went unheeded, police arrested him for behaving in a disorderly manner in a public place. His equipment – including his guitar and amplifier – was then confiscated.
The charge was later changed to organising a prohibited group gathering, an offence under Covid-19 regulations. Per the now-expired Prevention and Control of Disease (Prohibition on Gathering) Regulation, anyone found guilty of organising a prohibited group gathering faced a fine of up to HK$25,000 and six months’ imprisonment.
Ma is known for performing an English rendition of Glory to Hong Kong, a song written by protesters during the unrest in 2019. The government has previously said the song was “closely associated with violent protests and the ‘independence’ movement” in 2019” that year. Though the protests attracted a handful of pro-independence activists, it was not one of the movement’s demands.
The authorities have since refused to say if the song is unlawful, though it is banned in schools.
Existence of a ‘public gathering’
At the start of the closing statements, the defence called on the court to consider whether there was the “existence of the prohibited group gathering” before assessing if the defendant had organised it.
Koon raised doubts over Yam’s statement that there were 30 to 40 people gathered around Ma when he and two other officers arrived at the scene at 9:55 p.m. after receiving the noise complaint.
The barrister said that according to footage shown in court on Thursday, which was filmed at 10:05 p.m., there “seemed to be very few present.”
It was “unlikely” that the number of people had decreased within the span of that time, Koon said.
Yam agreed on Thursday that when officers attend to a suspected prohibited gathering, they have the duty of recording alleged participants’ particulars. This was not done that night, however.
Addressing this point, Koon said Yam’s actions “indicate[d] no existence of a prohibited group gathering at the scene, otherwise [he] would have collected the personal information of at least some of the participants.”
Koon also cited the Prevention and Control of Disease (Prohibition on Gathering) Regulation, which identified two types of public gatherings – a “prohibited group gathering” and a “dispersable gathering.” He used the example of domestic workers gathering on an off day to explain the latter, which is not an offence. If each group consists of four people – providing that were the limit at the time – and they are separated from another group of four people by less than 1.5 metres, the authorities can “disperse” the groups by ordering them to maintain a “lawful distance,” Koon said.
The enforcement actions of Yam and the other officers that night were consistent with a dispersable gathering, as they had asked onlookers to spread out, the barrister added.
Definition of ‘gathering’
Citing a previous court case involving the same charge of organising a prohibited gathering, Koon identified characteristics of a gathering that were referred to in that case and refuted them in Ma’s context.
Factors included the similarities in the people’s acts, the distance between people and whether there were arrangements or preparations for the activities.
Koon said looking at the similarities in acts involves examining interactions. There was no evidence of onlookers singing along with Ma’s performance, that requests were made for Ma to perform particular songs, or that people chatted with the defendant, he said.
The barrister added that there was no evidence of how close people were standing, or signs of preparations such as onlookers holding up banners or helping the defendant set up his equipment.
Verdict to be delivered next month
Koon also expressed doubt over the timing of events. He referred to Yam’s statement on Thursday that he and the other officers arrived at the scene at 9:55 p.m. and observed Ma for around 10 minutes from a police vehicle before getting out and approaching him.
In his testimony, Yam said that before the officers turned on their body cameras, they asked the defendant if he understood Chinese, to which he said yes, and made a number of warnings to Ma after he ignored their question about whether he had a permit to play an instrument in a public place.
“All these events allegedly happened after the time of arrival of the vehicle but before the taking of the video,” Koon said. “[It would have been] impossible for [Yam] to [have] observed the defendant for 10 minutes from the vehicle.”
“[A] more plausible event was… when they arrived, [they] immediately got out of the car and approached the defendant and no observations were made,” he added.
Ma did not testify during the trial. And while the court had heard that there was a possibility that a second prosecution witness – a police constable who carried out the enforcement action with Yam – may testify on Friday, the prosecution confirmed that he would not be called.
The verdict will be handed down on May 31.
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