Lawyers for the Hong Kong government said violent extradition bill protests showed why demonstrators should not be given full access to an area previously popular with marchers.
During a hearing at the Court of Appeal on Wednesday, barrister Benjamin Yu SC tried to regain ground after a lower court ruled last year that the failure to open the east wing forecourt of the government’s offices at Tamar – which used to be a popular spot for protests – was unconstitutional.
The space, known to pro-democracy activists as Civic Square, was sealed off with a three-metre-tall fence in September 2014 shortly before the Occupy protests, a massive civil disobedience campaign that saw protesters blocking major roads, began.
Since then, the area has been open to the public, subject to an application, at weekends and on public holidays. Photographer Cheung Tak-wing took the Director of Administration to court for refusing his application on a weekday event and won.
On Wednesday, Yu argued that as long as the director had got the facts and law right, the court should give her a wide “margin of discretion” to make her decision.
“There is always an element of risk she has to manage,” Yu said.
And the risk varied at different times, he added, before comparing the largely peaceful Occupy protest in 2014 with the increasingly violent anti-government protests of the past 10 weeks.
“Maybe there is an outburst of violence or violation of requirement,” he said. “The margin of discretion is highly relevant.
“Where you have a serious risk of people storming the government office and people going off route … they don’t actually enjoy the protection the convention has given to them.”
Last year, the Court of First Instance ruled the government’s restrictions had infringed the public’s rights to freedom of expression, assembly and to participate in public affairs, as guaranteed by the Bill of Rights and Basic Law, the city’s mini-constitution.
Mr Justice Thomas Au Hing-cheung ruled earlier that the director had failed to show the restrictions were no more than what was necessary to ensure the normal operation of government offices.
The case continues before chief judge Mr Justice Jeremy Poon Shiu-chor, Mr Justice Johnson Lam Man-hon and Mr Justice Aarif Barma on Thursday when Cheung’s lawyers are expected to make their case.
The Civic Square is best known as the base for students in 2012 who went on a hunger strike to force the government to scarp the Chinese national education curriculum in Hong Kong schools.
It was also a battleground for young activists during the civil disobedience movement in 2014. Then student leaders Joshua Wong Chi-fung, Nathan Law Kwun-chung and Alex Chow Yong-kang were briefly jailed, before later being freed on appeal, after being convicted of storming the square two days before the Occupy protests started.