HKSAR v. Leung Hiu Yeung and Another

FAMC No. 18 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2017 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA 229 OF 2016)

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BETWEEN

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.At the hearing, we dismissed the applications of both applicants for leave to appeal against their conviction for unlawful assembly, but granted the first applicant’s leave application in respect of his conviction under section 19(b) referred to below.  These are our reasons for so doing.

2.Both applicants were convicted of unlawful assembly contrary to section 18 of the Public Order Ordinance (“POO”)[1] and the first applicant was also convicted[2] of obstructing an officer of the Legislative Council while in the execution of his duty contrary to section 19(b) of the Legislative Council (Powers and Privileges) Ordinance (“LC(PP)O”).[3] 

3.They sought leave to appeal against those convictions and sought certification of the following questions in relation to both convictions, namely:

Question 1: Do police officers entering the “precincts of the Chamber” as defined in s 2 of LC(PP)O to deal with issues arising under s 8(3) LC(PP)O, require an authority given under s 8(2) or (3) LC(PP)O?

Question 2: When a police officer enters the precincts of the Chamber as defined in [s 2 LC(PP)O] but without an authority under s 8(2) or (3) LC(PP)O, is that police officer “on duty within the precincts of the Chamber” and so an “officer of the Council” within the meaning of s 2 LC(PP)O?

Unlawful assembly

4.In the course of a demonstration held on 13 June 2014, protesters rushed at the entrances to the Legislative Council (“Legco”) complex and, using implements like bamboo poles and metal Mills barriers which had been placed to bar entry, attempted to force their way inside by prising open or battering in the glass doors.  Considerable violence was used and a Legco security officer was injured, sustaining fractured toes caused by a falling Mills barrier.  Damage costing $200,000 was occasioned to property at the entrances attacked.

5.The unlawful assembly convictions were based on both applicants’ participation in this violent behaviour.  Their conduct plainly gave rise to a reasonable apprehension by the persons inside the complex of a breach of the peace and undoubtedly constituted an unlawful assembly under POO section 18.[4]

6.As indicated by the two Questions set out above, the applicants’ case was that because (so they argued) police officers are legally excluded from being within the precincts of Legco unless authorized in a specific manner to be present, their convictions for unlawful assembly were somehow unsound.  That was a non sequitur and the point was not reasonably arguable.

7.The applicants also sought to contend that they “were trying to use an unrestricted right of access to see the proceedings of the Finance Committee” so that it was “very debatable whether the offence of unlawful assembly” has been committed.[5]

8.It was a travesty to suggest that the violent attempts at forcing entry obviously with disruption of the meeting in mind, involved merely the exercise of a right of access to see the Finance Committee proceedings.  It was also untenable to call that right an “unrestricted right of access”.  LC(PP)O section 8 states that sittings are open to the public but makes that subject to numerous provisions aimed at maintaining security in the precincts of the Chamber and ensuring the proper behaviour and decorum of persons therein. 

9.We accordingly refused leave to appeal in respect of their unlawful assembly convictions.

Obstructing an officer of the Legislative Council while in the execution of his duty

10.When the police attempted to form a cordon to disperse the protesters from the front entrance, the first applicant stood in front of the cordon and “vigorously shoved the police officers forming the line”.[6] This was the basis of his additional conviction for obstructing an officer of the Council while in the execution of his duty. 

11.The first applicant seeks to contend that the police officers in question did not, as a matter of law, qualify as officers of the Council acting in the execution of their duty so that the offence charged was not made out.

12.The first applicant’s argument raises significant issues relating to the circumstances in which the police may lawfully enter and perform policing duties in the precincts of the Legco Chamber.  We therefore grant the first applicant leave to appeal against his conviction on this charge and certify the two Questions set out above. 

13.The hearing will be held on 10 January 2018.

Mr Philip Dykes SC leading Mr Douglas Kwok, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the applicants

Mr Jonathan Man, SADPP and Mr Derek Lau, SPP (Ag), of the Department of Justice, for the respondent