HKSAR v. Chan Wai Yip Albert

[English Translation - 英譯本]
HCMA 227/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 227 OF 2014

(ON APPEAL FROM ESCC 2395/2013)

______________________

______________________

JUDGMENT

1.The appellant in the present case, Chan Wai Yip Albert (hereinafter referred to as “the defendant”) was charged with two charges of offences:

Charge 1:  “Holding, convening, organizing, forming or collecting a public procession taking place in contravention of section 13 of the Public Order Ordinance, Cap 245”, contrary to section 17A(3)(b)(i) of the Public Order Ordinance, Cap 245, Laws of Hong Kong;

Charge 2:  “Knowingly taking or continuing to take part in or forming or continuing to form part of an unauthorized assembly”, contrary to section 17A(3)(a) of the Public Order Ordinance stated above.

2.The defendant pleaded not guilty to the charges and stood trial before Magistrate Mr David Chum in the Eastern Magistrates’ Court. After trial, the defendant was acquitted of Charge 1 but convicted of Charge 2 and fined $6,000.

3.The defendant appealed against the conviction.

Particulars of the offence

4.The particulars of the offence of which the defendant was convicted are as follows:

“[The defendant is] charged that on the 1^st day of January, 2013, in Hong Kong, without lawful authority or reasonable excuse, knowingly took or continued to take part in, or formed or continued to form part of, a public procession which took place in contravention of section 13 of the Public Order Ordinance (Cap 245), which was an unauthorized assembly by virtue of section 17A(2)(a) of the Public Order Ordinance (Cap 245).”

Prosecution case

5.The magistrate recounted the background and the prosecution evidence in his statement of findings, which I have basically adopted:

“Background

3. The prosecution alleged that on the day in question, an unauthorized procession and assembly took place in contravention of section 13 of the Public Order Ordinance at the junction of Queen’s Road Central and Ice House [Street], and the defendant knowingly took part or continued to take part in such unauthorized procession and assembly.

Prosecution case

4. The prosecution has called a total of five witnesses to testify, whose evidence are summarized in the following.

5. The first prosecution witness (PW1) is a sergeant who is responsible for the liaison in public events. On the day in question, he was responsible for the liaison with People Power and meanwhile had contacts with the defendant. PW1 said that at 5:30 pm, the defendant and the procession arrived at the east gate of Government House in Central. At that time, the defendant requested to be allowed to surround Government House and said through the loudhailer that if the police did not permit, they would surround Government House by taking other routes. Following that, the defendant read out a declaration, led the party to chant slogans and throw paper planes to Government House. Subsequently, the defendant said it came to his knowledge that some participants had been stopped by the police at the junction of Queen’s Road Central and Ice House Street and he had to go there to sort out what it was about.

6. Having got to the junction of Queen’s Road Central and Ice House Street, the defendant who was in the crowd, through a loudhailer, queried the police for the reason of closing the road. At this time, the crowd was raising a hue and cry. The defendant told the people to ‘march freely (自遊行)’[1]. It was not until later at 7:43 pm that the police opened a stretch of Queen’s Road Central, and then the defendant told the people to walk towards Queen’s Road Central. By 7:50 pm, when people were walking towards Garden Road with the defendant, the police had already laid out a defence on Garden Road to stop people moving upward along Garden Road. People in the procession immediately gathered together, some going out to the roadway, moving towards the police defence line and demanding the police to open the way. The police raised warning signs to direct them to leave and return to the meeting at the east gate, but people in the procession just paid no heed. The defendant was also in Garden Road near Albert Road and demanded a way to the main gate of Government House to protest. At that time, hundreds of procession participants had assembled. Subsequently, the defendant left Garden Road and went to Wyndham Street with other members of the public following him. There were about 1,000 people. In Wyndham Street, the defendant spoke to the crowd. Eventually he returned to the east gate of Government House.

7. In cross-examination, PW1 described that the people on that day was demonstrating andprocessing but was not sure if they were taking part in the same procession.

8. The second prosecution witness (PW2) is a senior inspector attached to the support wing. He was the officer-in-charge of public events support, responsible for dealing with processions. He testified that on the day in question, the police had approved the assembly application made by People Power and issued a letter of no objection. However, the police did not receive any application for carrying out procession or meeting after 5:30 pm on that day.

9. The third prosecution witness (PW3) is a senior inspector, who is the commander of the quick reaction force. At 5:25 pm on that day, he was making observation at Lower Albert Road near Glenealy. PW3 was at the rearmost of the procession which was estimated to consist of about 2,000 people. At 6:43 pm, people at the rearmost of the procession made a U-turn and proceeded again. Some people moved to Garden Road and some moved in the direction of Ice House Street and Glenealy. PW3 told other police officers to set up a defence line at Glenealy. At 6:45 pm, PW3 arrived at Glenealy and saw that some people walked out to the roadway, demanding the police to open the way and some were pressing their bodies against the police defence line. There were about 200 to 300 people. At 6:56 pm, the police gave warnings and pointed out that the crowd had departed from the requirements stated in the letter of no objection. PW3 said that the flag of People Power was in the crowd. There was no cross-examination on PW3’s testimony.

10. The fourth prosecution witness (PW4) is a senior inspector, who was on duty in uniform on that day. At 6:43 pm, at the east gate of Government House, he heard the defendant say, ‘Marching Freely for Democracy. Turn the head into the tail (民主自遊行，龍頭變龍尾).’ Afterwards the people went downhill along Lower Albert Road towards Ice House Street. After one minute, PW4 arrived at Queen’s Road Central and saw 200 to 300 people walking on the roadway. It was then 7 pm. They gathered at the road junction and obstructed the traffic. PW4 summoned reinforcement, which subsequently arrived and set up a cordon line. At 7:45 pm, PW4 heard the defendant call on the crowd to ‘walk around (周圍行)’. At 7:52 pm, the crowd broke the police defence line and walked along Queen’s Road Central towards the east, through Cheung Kong Centre and straight up to Garden Road. The police gave warnings in front of the crowd but no one paid any heed to them. Five minutes afterwards, PW4 was instructed to leave the scene. There was no cross-examination on his testimony.

11. The fifth prosecution witness (PW5) is a chief inspector of the regional crime unit. He was on duty at the junction of Queen’s Road Central and Ice House Street at 7:30 pm on the day in question. At that time, 400 to 500 people had occupied the road junction and the traffic came to a standstill. PW5 saw the defendant call out, criticizing the police for closing the road and demanding it to be opened. At 7:54 pm, PW5 saw the defendant call on the people to follow him and express the intention of going to Cheung Kong Center. The crowd reached Cheung Kong Center but PW5 was not sure if the defendant was in the crowd at that moment. At that time, vehicles had to move slowly, and although it was yet having danger lurking around, it was fairly dangerous. Later, people gathered at Garden Road and moved downhill. There were about 400 to 500 people and the traffic on Garden Road had already been paralysed. The defendant spoke to the people present at the scene, requesting them to support him and also claimed that he had been unlawfully detained. At 8:43 pm, the defendant said to the people, ‘Marching Freely for Democracy,’ and called on the people to [go to] Central. People walked in the direction of Central. Vehicles on their way had to stop [or] slow down. Some taxi passengers and peoplein the crowd scolded each other. At 9:04 pm, the crowd walking along Wyndham Street reached Glenealy. Among them, 400 to 500 people occupied the road junction. The defendant spoke to the people. Finally at 9:45 pm, the defendant called on the crowd to continue marching freely. Afterwards, PW5 followed other people and did not follow the defendant anymore. There was also no cross-examination on PW5’s testimony.

12. Both sides have agreed on several video clippings recording the scene, the content of which includes:

(a) East wing of Government House (at 1755-1853 hours)

(b) Queen’s Road Central, near the junction with Ice House Street (1906-1958 hours)

(c) Queen’s Road Central and Garden Road (at 1952-2042 hours)

(d) D’Aguilar Street and Lan Kwai [Fong], Wyndham Street and Glenealy (at 2104-2149 hours)

13.  In addition, both sides have agreed to produce a total of 17 witness statements which showed that the procession on the day in question had affected the traffic and caused congestion.  A taxi driver got stuck on Garden Road and could not drive away until the police opened a way for him.  Another taxi was forced to stop on Garden Road and the tourists on board were very scared in the chaotic situation. It took another taxi driver 25 minutes to drive away from Garden Road while the police had to push away procession participants who were surrounding this taxi.”

Defence case

6.The defendant elected not to give evidence, nor did he call any defence witness.

Magistrate’s findings

7.The magistrate has found all prosecution witnesses honest and reliable and accepted their testimonies which were wholly consistent with the video clippings concerned.

8.Since the prosecution did not produce the certificate signed by the Commissioner of Police in pursuance of section 17F of the Public Order Ordinance to prove that the defendant had contravened the clauses in the letter of no objection (namely the procession would finish at the east gate of Government House), the magistrate considered only the defendant’s conduct after 5:30 pm on that day on Queen’s Road Central near the junction with Ice House Street (hereinafter referred to as “the Junction”).  (para 20 in the Statement of Findings)

9.After analyzing the evidence, the magistrate “reached the only and irresistible inference that hundreds of citizens were assembling at that time without making prior application to the police, which was an unauthorized assembly.  The crowd’s subsequent move along Queen’s Road Central in the direction of Garden Road was a procession also without making prior application to the police.”  The magistrate found that “the assembly between Queen’s Road Central and the junction with Ice House Street was an unauthorized assembly, and what arose subsequently was also an unlawful procession.”  (para 25 in the Statement of Findings)

10.It is the magistrate’s view that “the defendant has assumed active leadership —— namely appearing in the procession [by] taking an active leadership role”, but “solely basing on what the defendant said in calling on others, the court cannot reach the only and irresistible inference that the defendant’s conduct was holding, convening, organizing, assembling, forming or collecting an event of procession” (page 191S-T of the appeal bundle).  The defendant was found not guilty of Charge 1.

11.In respect of Charge 2, the magistrate made the following analysis:

“Did the defendantknowingly take part in that unauthorizedprocession and assembly?

26. The defendant went to the scene for the initial purpose of sorting outwhat it was about after knowing that some people had been stopped by the police, but he might not be certain that an unauthorized assembly was going on at the place in question when he arrived there. However, upon his arrival, as it can be seen from the clippings, 200 to 300 people gathered at the road junction and the police had set up a defence line, he remained there without leaving. I find that the defendant’s choice of staying behind already showed his intention of taking part in the meeting. Since the police had given warnings, a reasonable person in reasonable circumstances would knowthat such a meeting was unlawful, otherwise the police would not have given the warnings. Moreover, the defendant did call on the people present on that day to follow him to Cheung Kong Center and demand the police to open theroad. The defendant’s behaviour has enabled me to infer that he at that time did know that the meeting was unlawful but knowingly continued to take [part] and continued to suggest others follow him to go to Garden Road, which is the only and irresistible inference. He knowingly continued to be a part of that unlawful meeting instead of taking part inadvertently or carelessly.

27.  After the crowd had arrived Garden Road, the defendant encountered the police cordon.  People in general could understand that the police were dealing with an unlawful assembly and the defendant ought to have understood and known the same.  However, not only did he remain there, he even spoke to the people at the scene to call for support and suggest ‘Marching Freely for Democracy’.  This evidence also shows that the defendant knowingly continued to take part in the unlawful meeting.”

12.The magistrate found that the defendant knowingly continued to take part in an ongoing unauthorized assembly and found him guilty of Charge 2.

Grounds of appeal

13.Mr Douglas Kwok, counsel for the defendant, has basically put forward two grounds of appeal.  The first ground states that the magistrate has made a wrong finding on the actus reus of the charge, and the second ground states that the magistrate has erred in finding the defendant had the mens rea.

Ground of appeal 1

14.Mr Kwok mainly addressed to the magistrate’s findings that the assembly at the Junction was an “unauthorized assembly” and “what arose subsequently was also an unlawful procession”.

15.Mr Kwok set out the following three arguments in his written submissions:

Ground of appeal 1(a)

16.The magistrate has overlooked that “meeting” by its definition does not include “any gathering or assembly held for the purpose of carrying out any duty or exercising any power imposed or conferred by any Ordinance” (definition (d) of “meeting” under section 2 of the Public Order Ordinance).  In the assembly in question, the police “closed the road” for the purpose of carrying out duty or exercising power, therefore the assembly formed as a result of “road closure” was not a “meeting”.  Mr Kwok said that the citizens in the present case “had been assembled” instead of collecting for a common purpose on their own initiative as stated in the Public Order Ordinance.

17.In addition, when citizens exercise “the right to liberty of person” and “right of peaceful assembly” (Articles 5 and 17 of the Hong Kong Bill of Rights, section 8, Hong Kong Bill of Rights Ordinance, Cap 383, Laws of Hong Kong), an assembly is not a “meeting”.  Both are not the “unauthorized assembly” set out under section 17A(3)(a) of the Public Order Ordinance.

Ground of appeal 1(b)

18.It was wrong for the magistrate to have found that the “common purpose” of this assembly was “getting the way opened”.  The definition of “procession” includes “procession organized for a common purpose” (“procession” as defined under section 2 of the Public Order Ordinance).  Finding “a procession organized” for the purpose of “getting the way opened” is by itself self-contradictory.

Ground of appeal 1(c)

19.The magistrate was wrong in not finding this assembly a “spontaneous demonstration”, while in fact it was and hence not regulated by the Public Order Ordinance.

20.Mr Kwok has cited what Bokhary PJ (as he then was) said in para 209 of the judgment in Leung Kwok Hung[2] to support his argument.

21.Mr Kwok emphasized the absence of evidence in the present case showing why citizens had assembled before the defendant arrived at the Junction, and there was also no evidence showing the purpose of their assembly.  Even if the defendant did behave in a “controlling” or “leading” way, such behaviour was not carried out for any “purpose” and therefore did not fall within the statutory definition of “assembly”.

22.Mr Kwok also emphasized that the magistrate had found the defendant not guilty of Charge 1, hence on the principle of res judicata, this court, as an appellate tribunal, could not consider again the facts on which the defendant had been acquitted.

23.Mr Kwok submitted that “Marching Freely for Democracy (民主自遊行)” on the day in question did not fall within the definition of “procession” under the Public Order Ordinance.  At the material time, people “were assembled” because the police had set up cordon lines.  They were having a “procession” without “organization” and not a “procession organized for a common purpose”.

24.Mr Kwok stressed that the mode of “Marching Freely for Democracy” in the present case had no pre-determined route at all.  He, with reference to the analysis made by the three judges —— in particular Lord Phillips —— in the English case Kay v Commissioner of Police of the Metropolis [3] and the requirements under section 13A of the Public Order Ordinance, contended that there was no preparation in advance or designated route regarding the defendant’s “Marching Freely for Democracy”, and no application pursuant to section 13A could actually be made to the police, and therefore “Marching Freely for Democracy” suggested by the defendant on that day was not a procession within the ambit of the Public Order Ordinance.

Ground of appeal 2

25.Mr Kwok contended, the magistrate had not found that the defendant “knew the assembly was unauthorized”.  There was no evidence in the trial which clearly explained what the defendant’s knowledge was.  That the police had encircled the crowd or warned the people to leave the cordoned area did not mean that those within the area were holding or taking part in an unauthorized assembly.

26.Mr Kwok also said that the term “illegal meeting” or “unlawful meeting” used by the magistrate in his verdict made it hard to tell if he was referring to the offence of unlawful assembly under section 18 of the Public Order Ordinance, and that if he was, then his finding on the defendant’s mens rea was made on a wrong basis, which was a plain mistake.

The respondent’s response

27.Mr Jonathan Man, Acting Senior Assistant Director of Public Prosecutions and Mr Derek Lau, Acting Senior Public Prosecutor, for the respondent, made the following response.

Ground of appeal 1(a)

28.The exceptions under subsection (d) of the definition of “meeting” in section 2 of the Public Order Ordinance referred to the gathering or assembly held for the purpose of carrying out statutory duty or exercising power by law enforcers and not the gathering or assembly formed by citizens in protesting against such law enforcement.  Furthermore, the assembly of the defendant and the crowd at the Junction was not formed as a result of road closure by the police.  The police cordon line was only set after the police arrived in response to PW4’s request for reinforcement which was made upon his arrival and seeing 200 to 300 people had gathered there and blocked the traffic.

29.Whether the assembly in question is a “meeting” and “unauthorized assembly” under the Ordinance depends on whether that assembly falls within the definition in the relevant provision and not on the “right to liberty of person” and “right of peaceful assembly”.  

30.The Court of Final Appeal has in Leung Kwok Hung carefully examined the statutory notification scheme related to public procession and has by majority opinion held that the scheme is constitutional.

31.The assembly in the present case was one having over 30 people, and no prior notification had been made to the police for holding it and the subsequent procession along Queen’s Road Central to Garden Road, which were therefore sufficient evidence to prove that the public procession involved was an “unauthorized assembly” under section 17A(3)(a) of the Public Order Ordinance referred to.

Ground of appeal 1(b)

32.The respondent has referred to the Statement of Findings (para 24): “It can be seen from the footage that the purpose for which the people assembled at the Junction was requesting the police to remove the cordon to let them go to other places.  Although they came from different bodies, they had a common purpose which was hoping the police to open the way.”  In giving the oral verdict, the magistrate said, “Although they came from different bodies, they had a common purpose”, “which was hoping the police to open the way to let them go to other places.” (page 190M-N of the appeal bundle)  The magistrate therefore found that the “common purpose” for which the crowd assembled at the Junction was not only “opening the way”, but also “going to other places”.

33.The evidence in the present case showed that hundreds of people had assembled, going to the same destination along the same route, and hence there was sufficient evidence to prove that the procession in question had a “common purpose”   organizing a procession (i.e. the “Walking Freely for Democracy” (民主自由行) as called for by the defendant to “protest”) to express their views and discontent against the government, which was a procession organized for a “common purpose”.

Ground of appeal 1(c)

34.As to “spontaneous demonstration”, the respondent said this argument of Mr Kwok had already been rejected by D Pang J in the case of Wong Yuk Man [4].

35.The respondent said that the defendant had in the event he called “Walking Freely for Democracy” assumed leadership: namely, he called on the crowd to take part in “Walking Freely for Democracy”, “make a U-turn” and “turn the tail into the head”, and the crowd immediately left the east gate of Government House, turned round and went downhill.

36.The respondent, citing paras 37-39 of D Pang J’s judgment in Wong Yuk Man, submitted that even if the crowd’s assembly at that time was spontaneous, in the light of the defendant’s behaviour after arriving at the Junction, he did at the scene assume or attempt to assume “control or leadership of the assembly”, despite whether or not the assembly was previously convened or organized, the assembly thereby underwent a fundamental change in its nature and no longer differed from a meeting or procession which was held following convening or organization.

37.In response to Mr Kwok’s argument that the assembly in question was not an organized one, the respondent said the evidence in the present case did not show that the assembly of the crowd was “spontaneous”. The defendant first raised “Walking Freely for Democracy” and repeatedly called on the crowd to participate.  He directed the participants the route to the destination and also went eastwards together with the crowd along Queen’s Road Central, got to Garden Road and returned to Central after being blocked, which was obviously an organized assembly within the definition of procession under the Public Order Ordinance.

38.The respondent contended that although the magistrate found the evidence was not sufficient to prove that the defendant had “held, convened and organized” a procession, an appeal was a “rehearing” in which the appellate court could examine the evidence again and was not bound to accept the magistrate’s view.  The principle of res judicata was not applicable. Even if the defendant had not organized this procession, evidence did show that this procession was an organized one.

39.As to the argument that “Walking Freely for Democracy” had “no preparation in advance and no designated route”, the respondent emphasized that the circumstances in the present case were different by nature from the case Kay cited by Mr Kwok and the statutory requirements involved also differed.  The respondent, with reference to the case of Leung Kwok Hung (para 22), submitted that in view of the density of population and exceptional road condition in Hong Kong, a prior notification scheme was particularly important to the government and the police in fulfilling their positive duty of taking reasonable and appropriate measures to enable lawful meetings and processions to take place peacefully.

40.In respect of Bokhary PJ’s judgment on “spontaneous demonstration” in the case of Leung Kwok Hung, the respondent pointed out that the Court of Final Appeal had by a majority held that the whole statutory notification scheme of public procession and the relevant provisions (including the requirement of notification under section 13A(4)) were constitutional; and Bohkary PJ’s judgment in the minority was the only dissenting opinion, by which “notification scheme” was interpreted in the narrow sense with “spontaneous demonstration” excluded.   The respondent also referred to the judgment in Yip Po Lam [5] (paras 25-28) to contend that if the “notification scheme” did not cover the so-called “Walking Freely for Democracy” which had no pre-determined route, the effectiveness of the constitutional and reasonable “notification scheme” would be greatly undermined.

Ground of appeal 2

41.The respondent said that the defendant while in the crowd consisting of hundreds of people, repeatedly criticized the police for setting up cordon and demanded the police to open the way.  From all the evidence and all the circumstances, the inference to be drawn was that the defendant should have known that the procession in which he was taking part was an “unauthorized” assembly consisting of more than 30 people without making any prior application to the police.  There was no evidence in the present case to refute this conclusion.

42.Moreover, the magistrate in both his oral verdict (page 192L, appeal bundle) and Statement of Findings (para 28) clearly held that the defendant did “knowingly continue to take part in an unauthorized assembly”.

Related legislation

43.Section 17A(3)(a) of the Public Order Ordinance states:

“Where any … public procession …, is an unauthorized assembly by virtue of subsection (2)

(a) every person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in or forms or continues to form part of any such unauthorized assembly; and …

shall be guilty of an offence…”

44.Section 17A(2)(a) of the Public Order Ordinance states:

“(2) Where –

(a) any … public procession takes place in contravention of section … 13…

the … public procession … shall be an unauthorized assembly.”

45.Section 13 of the Public Order Ordinance states:

“(1) A public procession may take place if, but only if-

(a) the Commissioner of Police is notified under section 13A of the intention to hold the procession;

(b) the Commissioner of Police has notified under section 14(4) the person that he has no objection to the procession taking place or is taken to have issued a notice of no objection; and

(c) the requirements under section 15 are complied with…

(2)  This section shall not apply to-

(a)  any public procession which is not a procession on a public highway or thoroughfare or in a public park;

(b)  any public procession consisting of not more than 30 persons;

(c)  any public procession of a nature or description specified by the Commissioner of Police by notice in the Gazette.”

46.According to the interpretation under section 2 of the Public Order Ordinance:

“‘Meeting’（集會）means any gathering or assembly of persons convened or organized for the purpose of the discussion of issues or matters of interest or concern to the general public or a section thereof, or for the purpose of the expression of views on such issues or matters, and includes any gathering or assembly of persons whether or not previously convened or organized at which any person assumes or attempts to assume control or leadership thereof for any such purpose; but does not include any gathering or assembly of persons convened or organized exclusively-

(a) for social, recreational, cultural, academic, educational, religious or charitable purposes, or as a conference or seminar bona fide intended for the discussion of topics of a social, recreational, cultural, academic, educational, religious, charitable, professional, business or commercial character;

(b) for the purpose of a funeral；

(c) for the purposes of any public body; or

(d) for the purpose of carrying out any duty or exercising any power imposed or conferred by any Ordinance; …

‘procession’（遊行）means a procession organized as such for a common purpose, and includes any meeting held in conjunction with such procession;”

Considerations made by this court

47.A magistracy appeal is carried out by way of a “rehearing” on the testimony and evidence before the magistrate (supplemented by any fresh evidence which the appellate court may admit): see the case Chou Shih Bin v HKSAR [6].  In my view, in respect of the facts of a case, the appellate tribunal have to recognize that trial magistrate does enjoy the advantage of observing and hearing the witnesses giving evidence, and the appellate court cannot rely on the written transcripts on paper to determine if a witness is trustworthy and reliable: see the case Raymond Chen v HKSAR [7]. The credibility and reliability of any particular witness is solely within the assessment of the magistrate.  However, when the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the magistrate has misquoted, or omitted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory. 

48.I agree that in the present case, without producing to the court the certificate signed by the Commissioner of Police in pursuance of the law, the prosecution has failed to make use of the certificate to prove that the procession departing from the east gate of Government House was a contravention of the clause in the letter of no objection.

49.PW2 testified that the police did not receive any application for procession or meeting after 5:30 pm on that day.  In fact, the evidence produced to the court (including video clippings recording the scene) showed that outside the east gate of Government House, the defendant called on the people with a “microphone” for “Marching Freely for Democracy”, “having the head turned into the tail and the tail into the head（龍頭變咗龍尾，龍尾變咗龍頭）” and “all making a U-turn（大家轉頭行）”.  According to PW4’s testimony, after hearing the defendant say “Marching Freely for Democracy” and “turn the head into the tail”, people went downhill along Lower Albert Road in the direction of Ice House Street.  One minute afterwards, PW4 arrived at Queen’s Road Central and saw that 200 to 300 people were walking on the roadway, and people gathered at the Junction and blocked the traffic.

50.Although there is no evidence to show that all those 200 to 300 people assembled in response to the defendant’s call, it is undeniable by looking at the evidence that after the defendant had made the call, the people did “turn the tail into the head” and went downhill in the direction of Ice House Street.  Mr Kwok’s contention of having no evidence in the present case showing why people assembled at the junction in question just contradicted the evidence.

51.The magistrate was not required to and should not only consider the defendant’s behaviour after arriving at the Junction. Evidence plainly shows that it was only after the defendant had called out that the people carried out the so-called “Marching Freely for Democracy”, going downhill in the direction of Ice House Street. According to the evidence, the police cordon line was set up only after the police reinforcement arrived in response to PW4’s request which was made upon his arrival and seeing the assembly of 200 to 300 people.  Even if some members of the public might have assembled initially as curious spectators or for other reasons, evidence did show that after the police had cordoned off the area, the people at the scene could still leave the junction in question by walking uphill along Ice House Street.  It was therefore not the case that the crowd “was assembled” because the police had cordoned off the scene. 

52.As to the facts of the present case, the defendant and other people went to the east gate of Government House for the purpose of expressing their requests.  Upon the defendant’s call, the crowd carried out the so-called “Marching Freely for Democracy”, “turned the tail into the head” and changed the direction to go downhill towards Ice House Street.  Even though the defendant had claimed the assembly was “Marching Freely for Democracy”, it did not appear to have no route at all.  The crowd first went to the junction in question, then proceeded to Garden Road, and further went back to Central.

53.Mr Kwok’s argument based on the consideration of only the evidence about what happened after the defendant had reached the Junction, and therefore he said there was no evidence to show why the crowd assembled and the purpose and so on.  I have already pointed out that the court should consider not only the defendant’s act after arriving at the Junction.  Having considered why the crowd went downhill from the east gate of Government House along Lower Albert Road to the junction in question, we would know that the crowd in fact was extending their previous procession (despite whether or not the evidence showed any departure from the route designated in the letter of no objection).  They were not walking in the street aimlessly.

54.I find that hundreds of people had assembled at the Junction without making prior application to the police in pursuance of section 13 of the Public Order Ordinance.  Subsequently the crowd went along Queen’s Road Central to Garden Road and then back to Central, which was a procession also having no application made in advance to the police in pursuance of section 13.  Such assembly and the procession arose subsequently constituted a procession organized for a common purpose: people assembling and going together along the same route to the same destination.  The procession also had a common purpose: to “protest” by “Marching Freely for Democracy” so as to express their views and discontent against the government.  I do not agree that the common purposes were those found by the magistrate: namely “open the way” and “let them go to other places”.

55.The procession in question was obviously an unauthorized assembly.

56.I agree with the respondent’s submissions.  I cannot accept Mr Kwok’s argument that the crowd “were assembled” as a result of the police enforcement of the law.  The facts of the case show that the crowd continued to gather or assemble so as to protest or not to abide by the police law enforcement action, which were completely different from the circumstances mentioned in subsection (d) of the interpretation of assembly under section 2 of the Public Order Ordinance.

57.Neither can I see how the “right to personal liberty” and “right to peaceful assembly” [raised] by the defendant are related to the issue in the present case.  The crux of the present case is whether the defendant has committed the offence under section 17A(3)(a) of the Public Order Ordinance and whether the assembly in question was an “unauthorized assembly”.

58.In fact, the Court of Final Appeal has in the case of Leung Kwok Hung carefully examined and analyzed the whole statutory notification scheme and the relevant provisions and has by a majority held that the scheme is constitutional.  I have also in the case of Yip Po Lam made analysis and rulings on the same.  The “right to personal liberty” or “right to peaceful assembly” was not [an issue] in the present case.

59.As to whether this assembly was a “spontaneous demonstration” and hence not regulated by the Public Order Ordinance, Mr Kwok cited the following paragraph from Bokhary PJ’s judgment in Leung Kwok Hung:

“209. One problem remains. On one reading of the notification requirements for public meetings and processions, they operate to preclude spontaneous demonstrations. That would be incompatible with due enjoyment of free assembly. But this problem can be solved by reading those requirements – as I would read them – not to cover spontaneous demonstrations. If this is reading down, so be it. This problem having been solved, no problem with notification remains.”

60.As D Pang J said in Wong Yuk Man:

“37. Leung Kwok Hung is directly related to the notification scheme provided for in the Public Order Ordinance. After severing ‘ordre public’ from the concept of ‘public order’, the Court of Final Appeal held by a majority that section 13 was constitutional. Bokhary PJ dissented from the majority judgment only because the statutory scheme conferred on the Commissioner of Police the power to impose prior restraint on a procession and the power to ban the holding of a procession. Bokhary PJ did not consider there was anything wrong with the requirement that prior notice be given to the police in respect of a procession. In any event, in Bokhary PJ’s judgment, which consists of 30 odd pages, in only one paragraph (that is prargraph 209, the whole of which was quoted above) are spontaneous demonstrations mentioned. None of the other judges made any mention of it. …”

61.D Pang J pointed out the basic definition of “assembly” and made the following analysis:

“38. …… According to section 2 of the Public Order Ordinance, it means:

‘any gathering or assembly of persons convened or organized for the purpose of the discussion of issues… of … concern to the … public … or for the purpose of the expression of views on such issues … and includes any gathering or assembly of persons whether or not previously convened or organized at which any person assumes or attempts to assume control or leadership thereof for any such purpose…’ (words in italics denotes emphasis)

39.  From this it can be seen that even if there is a meeting which is a purely spontaneous gathering or assembly and which, according to Bokhary PJ’s dictum, is not to be covered by the notification scheme, when any person at the scene (attempts to) assume control or leadership thereof, it will undergo a fundamental change in its nature. Such a meeting and any subsequent procession that may arise therefrom ought to be regulated under the Public Order Ordinance.  As far as its nature is concerned, it is no longer different from a meeting or procession which is held following convening or organization.  This is a situation within the contemplation of the legislature at the time of enactment of the Ordinance and also one that is intended to be subject to regulation.”

62.I agree with D Pang J’s view as stated above.

63.In respect of the facts of the present case, although the magistrate found that the defendant’s participation did not enable him to  conclude that the defendant had “held, convened, organized, assembled, formed or collected a procession” was the only reasonable inference, what the defendant said and did at the material time did show that he appeared in the procession in question by way of taking an “active leadership” role; the magistrate found the defendant not guilty of Charge 1 because he had not taken into account the evidence about what had happened before the defendant arrived at the Junction.  The evidence concerned was not challenged at all.  The magistrate drew the inference on the basis of unchallenged evidence.  I do not agree with Mr Kwok that I cannot consider the evidence that the magistrate has not relied on.  In the appeal which is a “rehearing”, I am absolutely entitled to infer on the basis of undisputed evidence (see Chou Shih Bin).  Of course, in the appeal, I cannot change the verdict and find the defendant guilty of Charge 1, but I definitely can and must consider all the evidence in the present case so as to decide if the evidence supports a conviction of Charge 2.

64.Further, I find that even if the assembly was originally a spontaneous assembly, its nature underwent a fundamental change by the defendant’s attempt to assume control or leadership of it at the scene, and it was no longer different from a meeting and procession which was held following convening or organization.

65.Even if “Marching Freely for Democracy” was a procession having no prior preparation and no designated route, I still do not agree with Mr Kwok that no prior notification under section 13 of the Public Order Ordinance could be given.  I fully agree with the argument in the respondent’s submissions and the relevant part is referred to as follows:

“7. The activity involved in Kay was a long-standing bicycle ride called ‘Critical Mass’ which started at the same place in central London on the evening of the last Friday of every month, as it has done since April 1994. There was no predetermined route, end-time or destination; things go as are chosen by the actions of the participants on the day.

8. Paras 22-25 cited [by the defendant] was Lord Phillips’ discussion on the wider issue of the case, ie whether the requirement of giving prior ‘notice to the police’ under section 11 of the Public Order Act 1986 was applicable to Critical Mass (see para 5 in ‘Appellant’s supplemental skeleton of submissions’). Lord Phillips indicated in his discussion that since it seemed unlikely that Critical Mass involved any advance organization, the ‘notice to police’ in the abovementioned section 11 was not applicable to that event. It is noteworthy that this discussion is only Lord Phillips’s obiter dictum and not a ratio decidendi of the judgment.

9. The court in Kay held that Critical Mass was not required to give prior notice to the police under section 11 of the Public Order Act 1986. The judgments by Lord Phillips, Lord Rodger and Lord Carswell all based solely on the narrower issue, ie whether the procession involved was a ‘commonly or customarily held’ event exempted from giving prior notice to the police under section 11(2). It was the view of all three judges that for historical reasons, Critical Mass was exactly a ‘commonly or customarily held’ event enjoying the exemption and thus was not required to notify the police.

10.  The ‘Walking Freely for Democracy’ in this case differs in nature from Critical Massin Kay, which had no organizer. The requirement of giving prior notice under section 11 of the English Public Order Act 1986 before holding procession is also different from the statutory notification scheme under the Public Order Ordinance.  Notwithstanding that section 11 of Public Order Act 1986 may not be wholly applicable to Critical Mass which had no formal organization and was spontaneous, it does not mean that the requirement of notification under section 13A(4) of the Public Order Ordinance does not apply to the present case.  Having regard to the density of population and exceptional road condition in Hong Kong, the scheme of prior notification is particularly essential on the part of the government and the police in carrying out their positive duty of taking reasonable and appropriate measures to enable lawful assembly and procession to take place peacefully (see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, para 22).”

66.I have in the case of Yip Po Lam pointed out that the Court of Final Appeal has carefully examined the statutory notification scheme and held that it was constitutional.  To reduce relevant information, which covers only limited areas, into writing and supply it to the police within a reasonable time limit and under reasonable circumstances are essential elements constituting “reasonable notification”.  Such requirement is necessary and proportionate in that it will help the police in their efforts to facilitate the holding of a procession or assembly in a peaceful and orderly manner (para 28).

67.If no notification to the police is required for a public procession (other than an assembly for social or recreational purposes and so on which enjoys exemption) consisting of 30 people or more on a highway or thoroughfare, provided that the participants claim to have “no designated route”, the police then just could not make corresponding arrangements to help the procession take place peacefully, and the effectiveness of the notification scheme would be greatly undermined.

68.In view of the above reasons, the first ground of appeal cannot stand.

69.As to the second ground of appeal, it is true that there is no direct evidence in the present case showing the defendant’s mens rea.  It was based on evidence that the magistrate reached the only and irresistible inference that the defendant had knowingly continued to take part in the unlawful assembly instead of being a part of it inadvertently or carelessly.

70.I have set out the defendant’s conduct in the present case in detail, and it is also my view that the only reasonable inference to be drawn is that the defendant has knowingly taken part or continued to take part in that unauthorized assembly.

71.I do not agree with Mr Kwok that the magistrate might have by mistake applied the criteria for unlawful assembly under section 18 of the Public Order Ordinance on the present case.

72.The second ground of appeal also fails.

73.In the light of the above reasons, the appeal against conviction is dismissed.

Mr Jonathan Man, Acting Senior Assistant Director of Public Prosecutions and Mr Derek Lau, Acting Senior Public Prosecutor, of the Department of Justice, for the HKSAR/respondent

Mr Douglas Kwok, instructed by Messrs JCC Cheung & Co, for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law