Hong Kong protests: failure of students' court bid to bar police from Chinese University campus has sent alarm bells ringing in academic circles. But what does it means for future?

South China Morning Post Dipublikasikan 16.11, 14/11/2019
Hong Kong protests: failure of students' court bid to bar police from Chinese University campus has sent alarm bells ringing in academic circles. But what does it means for future?

Hong Kong's High Court on Wednesday rejected a bid by a Chinese University student leader to bar police from entering the campus.

The application was filed on Tuesday, the second day of clashes between protesters and police on the scenic campus on the coast of Tolo Harbour. Officers fired more than 1,000 rounds of tear gas and deployed a water cannon in response to protesters' petrol bomb attacks.

The court's ruling that police had the right to enter the campus to enforce the law sent alarm bells ringing through the academic community. Previously, it had been the understanding of students and staff of universities that their campuses were private places and police would enter only to respond to an emergency call, or with a search warrant.

Here's the gist of the arguments heard in court, how police handled campus protests in the past, and the ruling's implications.

What did the student side argue in court?

The students believed police could not enter their campus, their "second home", arguing that Chinese University was on private land leased by the government until 2047. Their lawyer, former lawmaker Audrey Eu Yuet-mee, cited the Police Force Ordinance and said officers could only enter if officers could identify suspects and needed to go in to make arrests, or were granted access by the school or the court with a warrant.

They also argued the police actions were unconstitutional in that they amounted to intrusion into private premises, a right protected by Article 29 of the Basic Law, the city's mini-constitution.

What did the court say?

The court rejected their argument and accepted the police's.

Before the hearing, police had said "schools were not considered private premises" under the Public Order Ordinance, which regulates public meetings, gatherings and protests and defines where the public is permitted to have access to as "public space".

Lawyer Jenkin Suen, for the force, also argued that the university was a public place where all members of the public could enter.

Suen suggested the Police Force Ordinance allows police to enter any facilities if they have reason to believe a person inside the premises has committed a crime and has to be arrested.

Clashes break out between protesters and riot police at Chinese University. Photo: Felix Wong

Mr Justice Wilson Chan Ka-shun noted police acted only after protesters blocked roads and railways, as part of a bid to force a citywide strike, "to paralyse Hong Kong in blatant disregard of life and safety of the public".

The judge also said the Public Order Ordinance empowered police to "stop or disperse any gathering or procession whatsoever or wheresoever, if they reasonably believe that the same is likely to cause or lead to a breach of the peace".

How about the conflict's origin " No 2 Bridge? Public or private?

The Sha Tin campus sits on a private lot granted by the government through a lease that expires in 2047. But regarding the university's No 2 Bridge " where hours-long confrontations took place " the Lands Department pointed out that the part of the bridge over Tolo Highway and the East Rail line falls outside the private land lease and is sited on government land.

A smaller part of the bridge falls inside.

The university only has "non-exclusive right of way" over the bridge and is responsible for its maintenance, the department said.

Even for a "private" area, the department said the lease only carries "civil" rather than statutory liabilities, which means the land lease will not override any exercise of rights by the government under relevant laws.

Have police got tougher in handling conflicts in universities?

Police used to have a protocol with universities. The case in point is the University of Hong Kong.

In 2011, police and HKU jointly made security arrangements ahead of the visit by then vice-premier Li Keqiang. Police and HKU management agreed that the campus was a "private place" and that university security would "handle any demonstration activity that might possibly occur".

Police, however, ended up entering the campus and pushing three students into a stairwell when they tried to stage a protest.

A Security Bureau and police review the following year concluded it was "necessary that the private organisation takes the lead in making security arrangements, with police assistance, to the satisfaction of all parties."

Eric Cheung Tat-ming, principal law lecturer at HKU, said that in recent years the overall trend was that police were expanding their use of powers and less likely to follow protocols based on trust.

"The force now manoeuvres into room that laws provide, and makes maximum use of it, neglecting whatever protocols they signed " which should be mutually respected " and just aims at settling the chaos."

Can police freely enter all school premises from now on?

Since the ruling, students at other universities have been afraid their campuses will be the next target.

Their fears deepened as Secretary for Security John Lee Ka-chiu said on Wednesday the law was applicable everywhere in Hong Kong including universities.

Chief Superintendent John Tse Chun-chung also said that if someone breaks the law, "regardless of where you hide, police have lawful powers to come after the offenders and bring them to justice".

At City University " where clashes also broke out outside the campus on Tuesday " the management issued a statement on Thursday, stressing that "law enforcement officers need to follow established guidelines and regulations and to communicate with the university in advance if they need to enter campus to carry out their duties".

But lawyer Duncan Ho, who was not involved in the court case, said that even if the court ruled in favour of the force, police should not think they can see every corner of a campus as a public place.

"While primary and secondary schools are definitely "private", some classrooms and playgrounds in universities are the same, and only allow students in. These are not public space, even under the definitions of the Public Order Ordinance."

He said in these cases, warrants might be needed if police wanted to arrest a suspect, unless the police could see someone is apparently committing a crime.

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