HKSAR v. Leung Hiu Yeung and Others

[English translation – 英譯本]
HCMA 229/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 229 OF 2016

(ON APPEAL FROM ESCC 3658/2014)

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Before: Hon Wong J in Court

Date of Hearing: 19 & 20 December 2016

Date of Judgment: 25 January 2017

JUDGMENT

1.There were originally 15 defendants in this case, and the current appellants are D1, D2, D3, D6 and D15 in the trial. Each of them has been convicted of one count of unlawful assembly [1], and D1 has also been convicted of one count of obstructing an officer of the Legislative Council (LegCo) while in the execution of his duty[2]. They appeal against the convictions.

The Prosecution Case

2.On the day in question, the Finance Committee of LegCo was scrutinizing the appropriation application related to the advance works for the North East New Territories Development Project.  Many people were assembling and demonstrating in the designated area outside the Legislative Council Complex (the Complex). Subsequently, some people left the designated area and moved the mills barriers.

3.The Chairman[3] of the Legislative Council Commission (the Commission) decided to seek help from the police after receiving the report.

4.Police officers were summoned and entered the Complex to standby at the ground floor lobby.

5.Later in the evening, some demonstrators began to move away the mills barriers set up outside the Complex, and some charged at the entrances of the Complex and tried to forcibly pull open the closed glass doors in an attempt to enter the Complex.

6.D1, D2, D3 and D6 were among the people who charged at the glass doors of the Complex.  All four of them had got hold of bamboo poles which had been inserted into the gap between door panels in an attempt to pry open the glass doors, and some of the appellants also pulled and yanked the glass doors.  D15 hit and kicked the glass door of another entrance and acted provocatively towards police officers who were behind the doors and inside the Complex.

7.In the course of the incident, D1 had on occasions blocked the cordon line formed by police officers and pushed and shoved them vigorously.  He was arrested on the spot.

8.As the result of the incident, various facilities of the Complex were damaged, in respect of which the repair costs were up to two hundred thousand odd dollars, and a member of the security staff[4] suffered from significant injury.

Defence Case

9.At trial, all appellants did not give evidence in court, and did not have much dispute on the factual accusations.

10.The defence called the Chairman of the Commission[5] as a witness, and the magistrate recounted his testimony as follows:

“12. As the President of LegCo and thus also the Chairman of the Commission, since the issues of security and order of the Complex was within the scope of management of the Commission, he therefore participated in making decisions regarding the security arrangements of the Complex. On the day in question, he received report from the Legislative Council Secretariat (the Secretariat) that many people were demonstrating outside the Complex and some of them were emotionally agitated. It was his view that the security situation and crowd control of the Complex had possibly exceeded the capacity of the security personnel of the Secretariat, and also taking account of the incident in which demonstrators attempted to force into the Complex a week before, out of worry for the order and safety of the Complex, he considered asking the police to enter the Complex to help maintain order.

13. He first discussed with the Deputy Chairman of the Commission and then consulted two ex-officio members, and all agreed that there was a need to call for police assistance.  He notified all Commission members via Whatsapp group, and the decision was approved without any objection.  This has been the usual decision-making protocol of the Commission in urgent situations.  When being asked why this was not left to be decided in a LegCo Council Meeting, he said that he did not think there was anything wrong for the Commission to make the aforesaid decision as the Commission was a statutory body responsible for the management of the Complex.

14. As to the arrangements for the Complex to be open, generally members of the public can go in and out freely within office hours, but not all areas are open for public use.  For example, use of the library is by appointment and entering the Complex requires registration of personal details.  As to the decision of closing the public entrance to the Complex on the day in question, he did not remember the details of how the decision was made, but he believed that it was the worsening of the order outside the Complex was deteriorating and after the Secretariat’s report, the Commission made the decision.” [6]

Grounds of appeal

11.On behalf of D1 and D2, Mr Douglas Kwok of Counsel[7] advanced the following grounds of appeal:

(I) LegCo has the independence and privilege to maintain the order and peace within the precincts of the Chamber of the Legislative Council (the Chamber), and the magistrate has erred in holding:

(1) that this privilege could be waived; and

(2) that this privilege had been waived.[8]

(II) The magistrate has failed to take the following defence into account:

(1) If the privilege could be and had been waived and left to the police to exercise it, the magistrate had failed to consider that police had not performed “knowledge-based policing”;

(2) The magistrate had overlooked the following situations:

(i) the police had not performed “knowledge-based policing”;

(ii) the institutional right of citizens had been infringed or contravened; and

(iii) tyranny was in formation, and thus it was erroneous to hold that the two defences, of “self-help” and “law of redress” were both irrelevant to the present case.

(III) The evidence was insufficient to support the conviction of the charge of unlawful assembly.

(IV) The magistrate had misinterpreted the definition of LegCo officers, which rendered the conviction of the other charge neither safe nor satisfactory.

12.The remaining three appellants are unrepresented, and in the course of the hearing, they all indicated that they adopted Mr Kwok’s grounds of appeal and submissions.

First Ground of appeal

13.This ground of appeal is based on the magistrate’s ruling that the holder of the privilege had waived “the independence and privilege to deal with security issues” [9]. Mr Kwok submitted that this ruling was erroneous.

14.On the other hand, Mr Johnathan Man, SADPP[10] on behalf of the respondent pointed out that although the Court of Final Appeal had in Leung Kwok Hung v President of LegCo (No 1)[11] confirmed the principle of non-intervention of the internal affairs of LegCo by the court, the conduct alleged in the present case was purely an attempt to forcibly enter into the Complex by violence, the principle of non-intervention did not apply. In addition, he cited a case of the Supreme Court of the United Kingdom,  R v Chaytor[12], and submitted that since the behaviour involved in the present case was an “ordinary crime” as described in that case, the court had jurisdiction to deal with them.

15.Mr Kwok in his rather lengthy submissions asserted that since LegCo had exclusive privilege over matters of maintaining order and peace in the Chamber, the courts had no jurisdiction to adjudicate the present case.  The main points of his submissions can be summarized as follows:

(1) The public have the right to enter and remain in the Chamber, which Mr Kwok called an institutional right. It is a type of right at a level lower than a constitutional right but higher than a right conferred by legislation. In other words, it is a right which must receive high regards.

(2) As an institutional right, this right may be restricted or prohibited only in accordance with the law.  Nevertheless, on the day in question, there was no such restriction or regulation issued in accordance with legal procedures, the public were hence entitled to exercise the right to enter or remain in the Chamber whether or not the purpose was to sit in on any meeting.

(3) For the normal operation of LegCo, it has the exclusive privilege of maintaining order and peace within the precincts of the Chamber.

(4) The case of R v Chaytor which the respondent has cited is not applicable in Hong Kong.

(5) The exclusive privilege of LegCo cannot be taken away by anyone, including the Commission.  This privilege is exercisable by LegCo only, and not by the Commission without any legal authorization.  In the present case, the Commission was not so authorized.

(6) In the present case, it was not LegCo but the Commission who summoned the police for assistance.  However, since the Commission had no lawful authorisation, it could neither exercise nor waive the privilege, and what the Commission had done did not represent LegCo’s waiver of its exclusive privilege.

(7) Even if the Commission had the power concerned, it had not exercised it in the present case in accordance with the law and procedures, and the decision-making process was not lawful either.

(8) In any event, it was unlawful for the Commission to leave the power and responsibility of maintaining the order in the Chamber entirely in the hands of the police because only LegCo has the power to devise policies in respect of the good order of the Chamber and determine on how to enforce them. The police were at most coming for reinforcement.

16.I will put these points into categories and consider them one by one.

Institutional right[13]

17.One of the main points in Mr Kwok’s arguments is that members of the public have the right to enter and remain in the Chamber, which is an institutional right[14].

18.As an institutional right, it can only be restricted or revoked in accordance with law, and the legal basis in this regard is s 8 of the Legislative Council (Powers and Privileges) Ordinance[15] (LCPPO), whose provisions provide that neither the President of LegCo nor the Chairman of the Commission has such power, and regulation in this respect shall only be effected through resolutions or pursuant to the Rules of Procedure adopted by LegCo.

19.LegCo has not passed any relevant resolution.

20.The Rules of Procedure only regulate various situations arising in the course of meetings.

21.When the President of LegCo has to effect such regulation, this can only be done by way of issuing administrative instructions in accordance with the law.  By reason of Article 72(6) of the Basic Law, the powers and functions that the President can exercise in this regard are limited to other powers and functions as provided in the Rules of Procedure.  The Rules of Procedure contains no provision to regulate the public’s access into the Complex, thus even if an administrative instruction was issued, members of the public still could not be denied of their institutional right to enter and remain in the Complex.

22.Further, although the Administrative Instructions [16] already issued have made provision on restrictions on access, the restricted areas do not mention the lobby of the Complex.

23.Therefore, there is no legal basis to bar the public from entering the lobby of the Complex.  Although the Administrative Instructions require those entering and remaining to behave in an orderly manner, it would be putting the cart before the horse if admittance of the public is refused to prevent disorderly conduct.

24.Mr Kwok has not cited any precedent in support of this argument.  He relies on s 8 of LCPPO to contend that LegCo sittings shall be open to the public, and s 8(2) makes clear at the first place that the public have the right to enter or remain within the precincts of the Chamber.  LegCo had a sitting on the day in question, and therefore the Chamber included the areas as extended in the Ordinance.

25.Although the right of the public to enter and remain in the Chamber may be restricted or even revoked in accordance with the law[17], and that the conduct during such entrance and remaining may be subject to regulation, Mr Kwok pointed out that on the day in question, no restriction or regulation was issued pursuant to the procedures as provided by the Ordinance, as such, the public had the right to enter and remain in the Chamber for purpose of sitting in on a meeting or otherwise.

26.It is unquestionable that members of the public have the right to enter and remain within the precincts of the Chamber.  However, I am unable to agree such right is of a level higher than those conferred by the Ordinance.

27.Some promotional materials of LegCo, which have been produced to the court, contain the following words: “[a] legislature belonging to all Hong Kong people” [18], “[the Complex provides] a wide range of facilities for members of the public to gain first-hand knowledge of the work of the Legislative Council and make their voices heard”and “incorporates a number of facilities open for visit by members of the public” [19], and “[m]embers of the public are welcome to visit for the following purposes” [20].  However, there is a wide spectrum between public premises and private premises.  The Complex does not fall into the category of premises, like public libraries or parks, that are usually open to the public.  Although LegCo sittings must be open, the not fully open nature of the Complex remains the same.

28.According to s 3 of the Administrative Instructions, other than those attending sittings, visitors to the precincts of the Chamber shall apply to an officer of LegCo for a pass.  Since one is required to apply for a visitor’s pass, the issue of the pass is not a given. Of course, any refusal to issue a visitor’s pass must be well justified.  From this, it is important to note that according to this subsidiary legislation, the right to be allowed to enter the Complex is not an absolute one.  Application for visitors’ pass must be made to the officers of LegCo. This shows that LegCo has, at least to a certain degree, delegated to its officers the power to determine admittance of the public into the Chamber.

29.Section 11 of the Administrative Instructions provides that persons entering or remaining within the precincts of the Chamber shall behave in an orderly manner.  I am of the opinion that if there is a sufficient and reasonable ground to believe that a person intending to enter the precincts of the Chamber is not going to adhere to this regulation, it is justified not to issue a pass.

30.That the precincts of the Chamber become expanded on sitting days, Mr Kwok submitted, may well reflect the right of the public to enter and remain there.

31.The precincts of the Chamber have been prescribed in the LCPPO, which is, in addition to the regular area, extended to a number of places including the entire Complex, fore court and yard, etc, during the whole of a sitting day.

32.Having regard to the provision as a whole, I am of the view that the very important purpose of extending the precincts of the Chamber on a sitting day is to enable all regulations governing the entry and remaining to be applied in the extended precincts, and not of giving effect to the right of the public to enter and remain.

33.Having considered the relevant legal rules, I am of the view that the right of the public to enter and remain in the Complex is not an institutional right as suggested by Mr Kwok, and such right may be regulated by laws and lawful and reasonable measures.  LegCo officers may deny entry of members of the public into the Complex or the Chamber under lawful and reasonable circumstances.

Exclusive privilege[21]

34.Another important point in Mr Kwok’s submissions is that LegCo enjoys the exclusive privilege to maintain the order and peace in the precincts of the Chamber, and hence in respect of incidents concerning order and peace that happen in the Chamber, the courts have no jurisdiction.

35.He submitted:

(1) To enable the normal operation of LegCo, it is necessary for it to enjoy the privilege to maintain order and peace in the Chamber, and so LegCo should have such privilege.

(2) In the matter of how LegCo deals with order and peace, the courts shall apply the principle of non-intervention, and confirm that they have no jurisdiction. 

(3) Since LegCo itself has the exclusive privilege to maintain the order and peace in the Chamber, there is no need for any action to be taken to declare the exercise of the privilege because it is already in existence.  In fact, LegCo has never waived such privilege.  Once the court acknowledges the existence of certain institutional privilege, it loses its jurisdiction over matters relevant to it regardless of whether the privilege is exercised by LegCo.

36.That LegCo enjoys exclusive privilege over certain matters is a consequence of the separation of powers.  The Court of Final Appeal has specifically pointed out that the Basic Law has entrenched the long established common law principle of separation of powers.  The Basic Law has incorporated this principle of separation of powers into the constitution of Hong Kong[22], affirmed that LegCo is the legislature of the Hong Kong Special Administrative Region, holding legislative powers autonomously, and exercising the powers and functions under Article 73 of Basic Law.

37.In Leung Kwok Hung v The President of the Legislative Council of the HKSAR[23], Cheung CJHC confirmed that [24], under common law, the courts do not interfere with the internal workings of the legislature, which has exclusive control over the conduct of its affairs.  This is a recognition of the separation of powers and has high constitutional significance.  However, in Hong Kong, there is the Basic Law which is a constitutional instrument.  The Basic Law has supreme legal status.  The legislature in Hong Kong is not supreme, a matter that differs from the parliament of many foreign countries, such as that of the United Kingdom. Therefore, the above common law principle should be suitably modified with reference to the provisions in Basic Law.

38.Within the ambit of this principle, the courts may only inquire upon the internal workings of LegCo if and when the Basic Law so requires, which normally only happens in the following circumstances:

(1) where the legislative process breached constitutional requirements.

(2) where LegCo has, in the conduct of its business, infringed the constitutionally protected right of an individual which the Basic Law provides for its enforcement by the courts.

(3) where the Rules of Procedure, made by LegCo on its own pursuant to Article 75 of the Basic Law, are in contravention of the Basic Law.

39.Cheung CJHC pointed out that it is for LegCo to decide on how the regulations for its procedures shall be construed and applied, and the courts shall not become involved.  LegCo has full power to determine whether the relevant regulations have been obeyed, or decide whether in any particular case to dispense with compliance. Under the common law the court would not intervene in these decisions.

40.Under the principle of separation of powers, the court must respect the exclusive powers of LegCo over its internal affairs, must be careful in considering whether such exclusive powers should be removed. The court shall not intervene unless the circumstances are clear and obvious.  Any uncertainty shall be resolved in favour of non-intervention.

41.The Court of Final Appeal and the United Kingdom Supreme Court have in recent cases discussed the kind of matters that the legislature enjoys exclusive privilege under the principle of separation of powers.

42.In Leung Kwok Hung v President of LegCo (No 1)[25], which concerned whether the LegCo President’s decision of “terminating the filibuster” could be challenged by way of judicial review, the Court of Final Appeal discussed the above issues.

43.The Court of Final Appeal found that in view of the circumstances in Hong Kong, so far as exclusive privilege is concerned, since the relationship between the legislature and courts is involved, it would be appropriate to discuss and analyse the issue on the basis of the principle of separation of powers.

44.The Court of Final Appeal held[26]:

“Under the doctrine of separation of powers the courts recognised the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, in particular the legislative process. The corollary was the ‘non-intervention principle’ that the courts would not intervene to rule on the regularity or irregularity of the internal processes of the legislature but would leave it to determine exclusively for itself matters of this kind, which rested not only on principle and authority but also on public policy.”

45.The Court of Final Appeal held that it is for the courts to determine if any exclusive privilege exists, and if it is found to exist, the court will not exercise jurisdiction to inquire into the manner in which the legislature exercises the exclusive privilege concerned.[27]

46.The United Kingdom Supreme Court discussed this issue in R v Chaytor.  See the paragraphs under the next heading for the discussion on this case.

47.Under these legal principles, Mr Kwok asserted that the appellants in the present case had attempted to enter the LegCo Complex because the North East New Territories Development Areas Project, which involved the wellbeing of some people’s homes, was being debated.  People at the scene were very concerned about it.  The arrangements at the Complex on that day have infringed the public’s right to enter the Complex.  Mr Kwok stressed that political matters should be dealt with by political means.  It was not proper to categorize the incident as a matter of public order, in particular that once full power to deal with the matter was passed to the police, LegCo lost the opportunity to get in touch with the public, with its accountability toward the public and democratic functions undermined. Therefore, it should have been LegCo itself to determine how to handle the matter.  However, the evidence showed that the decision of seeking assistance from the police was just made by individuals who had no such power or through a process not in accordance with the relevant regulations, and LegCo thereby lost its autonomy in this respect, and its power of deciding how to handle the matter was taken away.

48.Mr Kwok also submitted, it was undesirable that the matter of crowd behaviour involving highly political issues was left to be handled by the police, especially where the location was at LegCo Complex, a centre of political discussion.  In law enforcement, the police generally applied the same principles regardless of what the topic was, handled it in a consistent manner, solely aiming at coping with the situation by means of law enforcement and not knowledge-based policing[28].  It might end up awfully notwithstanding that things started with good intention.  It would be ideal for LegCo to decide on how to handle it.

49.In relation to all these, Mr Kwok submitted, the court should rule that LegCo enjoyed exclusive privilege on this matter and the courts had no jurisdiction over the present case.

50.The critical issue in the present case is whether maintaining order and peace in the precincts of the Chamber falls within LegCo’s own internal process as referred to by the Court of Final Appeal[29]. In discussing the internal process, the Court of Final Appeal has stressed particularly in respect of the legislative process[30], and pointed out that the proposition that LegCo should enjoy exclusive privilege in managing the legislative process was not only supported by precedents and authorities but also the need of public policy, so as to enable the orderly, efficient and fair disposal of LegCo’s business.

51.The present case is not about the legislative process or affairs of LegCo, but about the maintenance of public order and peace. Whether LegCo should enjoy exclusive privilege in respect of this matter is for the courts to decide[31]. The test is to consider if the existence of this privilege is necessary, that is whether the dignity and efficiency of LegCo cannot be upheld without this exclusive privilege[32], and whether it is necessary to the legislature in the performance of its functions[33].

52.Applying the above test to the question of whether LegCo enjoys an exclusive privilege in maintaining the order and peace involving members of the public in the precincts of the Chamber, I think that the answer is clearly in the negative.

53.Normally, it is the responsibility of LegCo or people it has authorized to maintain the order and peace in the precincts of the Chamber. This reflects the separation of powers, and accordingly LegCo officers have all the powers and enjoy all the privileges of police officers within the precincts of the Chamber[34].  However, it is not unusual for disorder occurring in the precincts of the Chamber which leads to criminal prosecution of the person who contravenes the regulation. Yet, this has not tarnished the dignity of LegCo nor hindered LegCo in performing its functions.  Besides, if the incident is a serious one, it is doubtful if LegCo officers are capable of handling it notwithstanding their statutory powers.

54.I am of the view that it was not necessary in the sense described by the Court of Final Appeal that LegCo shall have the exclusive privilege in maintaining the order and peace involving the public in the precincts of the Chamber.  Therefore, I hold that LegCo does not have an exclusive privilege in this regard.

R v Chaytor

55.When the United Kingdom Supreme Court discussed this issue, the two concepts, namely ordinary crime and exclusive cognisance, were mentioned.  Mr Man cited this case to support his argument.

56.Ordinary crime refers to an act which has no connection with the conduct of parliamentary business but constitutes crime. Generally speaking, debate in parliamentary sittings is the conduct most directly related to parliamentary business, and since freedom of speech and debate must be protected, it is necessary that Parliament shall have privilege.  As to whether other actions related to parliamentary business should enjoy privilege, it depends on the extent of their connection with the core parliamentary business, and the gravity of the adverse impact on the core parliamentary business if no privilege is enjoyed in respect of them[35].

57.Exclusive cognisance could be traced back to the High Court of Parliament in the United Kingdom, having its own particular law that the courts are not familiar with. On the other hand, Parliament may forego exercising this exclusive cognisance.  In fact, on a number of occasions when crimes occurred in the precincts of the Parliament, it did not intervene in the criminal prosecution or dispute the jurisdiction of the courts.  Actually, without the cooperation of the Parliament, it would have been difficult for criminal investigations to proceed.

58.In 2008, the Speaker of the House of Commons issued a protocol which includes the following: The precincts of Parliament are not a haven from the law, and any criminal offence committed within the precincts is no different from an offence committed outside; both are justiciable before the courts.  It is long established that a Member of Parliament who has contravened the criminal law may be arrested within the precincts.[36]

59.Mr Kwok submitted that R v Chaytor, cited by the respondent, was related to the substantive circumstances in which a crime was committed, whereas the present case is about a crime under the Public Order Ordinance, where the conduct of the alleged offender was directly related to the political issue being discussed in LegCo, instead of being unrelated to LegCo business, and hence it is not to be regarded as an ordinary crime.  Therefore, the principle considered in that case does not apply.

60.Moreover, one of the important bases for the ruling in R v Clayton – exclusive cognisance – does not apply in Hong Kong, because in Hong Kong there are no parliamentary system, structure and various related designs like those in the United Kingdom.  The principle of non-intervention differs from exclusive cognisance in that, in respect of the latter Parliament is entitled to waive exclusive cognisance and cooperate with the police in the investigation in Parliament and allow the courts to have the jurisdiction to adjudicate criminal cases occurring in Parliament.  This does not happen under the non-intervention principle.

61.He submitted that the Court of Final Appeal has established the principle of non-intervention in Leung Kwok Hung, which is applicable not only to the legislative process, but also in the important functions of LegCo laid down under Article 73 of the Basic Law.  This is appropriate to adopt this instead of following R v Chaytor in Hong Kong.

62.R v Chaytor was submitted in Leung Kwok Hung for the Court of Final Appeal to consider. However, the Court did not mention the case in their judgment, and pointed out it was appropriate to consider the matter in Hong Kong by applying the principle of separation of powers.[37]

63.I therefore considered the matter in accordance with this principle, and reached the conclusion in para 54 herein.

64.I am of the view that even if it were to be tested and considered by applying the concept of ordinary crime, the crime involved in the present case must be one of this type, and hence the court would not have lost jurisdiction.

65.The conduct in question does not have much connection with the core business of the council, and hence there would be not any great impact on LegCo’s core business if it does not enjoy exclusive privilege.

66.In view of the above, regardless of the test to be applied, I do not think LegCo should have the exclusive privilege concerned.

67.As to the concept of exclusive cognisance, I agree that it is not applicable in Hong Kong.

Was it within the power and lawful to call the police[38]

68.Mr Kwok’s submission is that the exclusive privilege of LegCo cannot be taken away by anyone, including the Commission. This privilege is exercisable by LegCo only, and not by the Commission in the absence of a lawful authorization.  In the present case, the Commission was not so authorized.  In the present case, it was not LegCo but the Commission that summoned the police for assistance.  Since the Commission had no lawful authorisation, it could neither exercise nor waive the privilege and summon the police, a part of the executive authorities. Even if the Commission had the power concerned, it had not exercised it in the present case in accordance with law and procedures, and the decision-making process was not lawful. 

69.He submitted that, in any event, it was unlawful for the Commission to leave in the hands of the police all the power and responsibility of maintaining the order in the Chamber because only LegCo has the power to devise policies and determine how to enforce them for this purpose, and thus the police who came were at most officers coming as reinforcement.

70.Since I have already held that in maintaining order and peace involving the public within the precincts of the Chamber, LegCo does not enjoy any exclusive privilege, I find it unnecessary to discuss the issues that Mr Kwok has raised in this connection, namely whether the act of requesting assistance from the police was lawful or in compliance with procedural requirements.  As the court has jurisdiction, it has the responsibility to assess the evidence to decide if the charges have been proved.

71.In response to the allegation that the Commission had not dealt with the matter lawfully, Mr Man said as follows:

“The Commission and the Secretariat had good reasons on the day in question to prevent the public from entering the lobby through the main entrance of the LegCo Complex. Under s. 9(a) of the Legislative Council Commission Ordinance, the functions of the Commission include providing security services to LegCo, and the Secretariat was the department actually rendering such services. On the day in question, demonstration zone(s) had already been set up in the precincts of the LegCo Chamber. At noon time, demonstrators were emotionally agitated, just ignored the advice of the security staff, and left the designated public activity zone and mills barriers. It was only under such circumstances that the Commission and the Secretariat decided to close the main entrance to the Complex. Obviously, these decisions were security arrangements made to ensure order in the precincts of LegCo Chamber. This was indeed their duty.'

72.I in fact agree with this argument.

Conduct of the police were unlawful[39]

73.Mr Kwok also submitted that the conduct of the police was unlawful.  This argument is based on the right of the public (including the appellants) to enter and remain in the Chamber.  He submitted that the action of the police was an unjustified infringement to this right, exceeded what was necessary and proportionate, and was therefore unlawful.

74.The public's right to enter the Complex was not unrestricted.  In any event, I have watched some video footage of what happened at the material time.  The degree of violence of the crowd was intense, and the police were in general just guarding the main entrance of the Complex. I am unable to agree with Mr Kwok's view.

Sub-summary

75.I disagree with all the arguments advanced by Mr Kwok in support of this ground of appeal, and do not agree that LegCo enjoys exclusive privilege over maintaining order and peace within the precincts of the Chamber.

76.In any event, even if the exclusive privilege did exist, the magistrate’s finding that LegCo had waived the exercise of such privilege was in line with the evidence.

77.This ground of appeal is not substantiated.

Ground of appeal (2)

78.In presenting this ground of appeal, Mr Kwok put forward the concept of “knowledge-based policing”, which is a theory of policing developed by some academics of policing in their discussion of traditional policing methods.

79.To put it simply, those proposing this theory point out that traditional policing is based on the presumption that the crowd is by nature unreasonable as well as dangerous.  However, this presumption is not correct, and thus traditional methods of policing often give rise to counterproductive results and many conflicts.  So they suggest that policing should be based on knowledge, including a better understanding of whether there is more than one faction in the crowd, whether there is anyone having a tendency to resort to violence, the acknowledged identities among the people, and so on, for the purpose of adopting specific tactics in view of the situation. The measures taken by the police should aim at facilitating the advancing of the crowd’s objectives, so as to avoid any member in the crowd having an excuse to create trouble.  The police should also communicate more with the organizers so as to come up with the best arrangements, thus avoiding any brewing of discontent in the crowd.  It should be noted that the crowd very often consists of more than one single type of people, and may include people coming from different backgrounds and having different requests and different causes and taking different approaches; and that the operation and measures have to prevent them from thinking that there is one common enemy.

80.What Mr Kwok has submitted is not a legal rule or principle.   The so-called knowledge-based policing does not appear to be pointless.  However, the court is not to rule on whether the police have taken this into account in their planning and preparation.  There is no allegation of any unlawful conduct against any individual police officers.  In my opinion, Mr Kwok’s criticism against the magistrate in this respect has no substantial bearing on this appeal.

81.As to Mr Kwok’s suggestion of infringement of the rights of members of the public, I have already discussed and analysed it[40].  LegCo did designate a demonstration zone on that day, and many people assembled there.  Those who wished to enter the Complex might apply for access through another entrance.  The evidence shows that nobody did so during the period when the incident occurred.  It cannot be overlooked that some people had charged at the Complex a few days before this incident.  The arrangements made by the authorities on that day could not be criticised.  It was absolutely reasonable for them to deploy staff to stop people who were trying to enter by force.  Failure in doing so would, on the contrary, cause great risk to the smooth running of the sitting.

82.Another point advanced by Mr Kwok was about the magistrate’s ruling that the two defences of self-help and law of redress were both irrelevant to the present case.

83.The magistrate made the following findings in this regard:

“Finally, the defence suggested that people had the right to resist tyranny by means of ‘self-help’. The court believes what the defence meant was that if the representatives of the people cannot effectively represent them in political discussions or communicate public opinion, the people shall have the right to enter the legislature and personally express themselves or even halt the passing of an evil law. The court’s response is: What is tyranny? To what extent shall ‘self-help’ be allowed? If there were 1,000 people at the scene, there could well be up to 1,000 answers to the questions above. If people are free to decide when to resist the regime and not act in accordance with the law, it is not rule of law, but instead, it is just leaving people to decide themselves whether to abide by law.”[41]

84.Mr Kwok submitted that the public had the right to take self-help action because of the unlawful action of the Commission and the urgency of the situation.

85.He pointed out that Article 29 of the Basic Law provided that “the homes and other premises of Hong Kong residents shall be inviolable.  Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.”  As such, Mr Kwok submitted that residents had the right to protect their homes (which is related to the North East New Territories Development Project) and were entitled to complain to LegCo.  It was a constitutional function of LegCo to hear the and handle complaints.[42]  In case of emergency, residents were entitled to request LegCo to deal with the matter on an urgent basis, which was another constitutional right apart from bringing the case before the courts.  The intervention by the police hindered and impaired the right of the public.  In addition, the President was in the course of “terminating the filibuster”. Accordingly, the public had the right to self-help.

86.It is true that LegCo has the duty to hear complaints from the public, but it has also devised a mechanism as the channel for lodging complaints.  If there was a complaint, it should be lodged by way of that channel.  The plan to develop North East New Territories was not an issue that sprung up on the day of the incident. Nor did the government’s application to the Finance Committee for funding come out of the blue.  Those who assembled and attended the demonstration should have known what had happened.  It would also be unrealistic to say that LegCo members were not aware of any opposing views and the reasons behind.  I do not agree that this constituted a legitimate reason for charging into LegCo by force, even if there had been a proposal for “terminating the filibuster”.  Determining whether the filibuster should be terminated was precisely an exercise of LegCo's exclusive privilege.  It is hard to justify the public being allowed to intervene in such a way.

87.Mr Kwok cited the case of HKSAR v Au Kwok Kuen[43]in his submission that the law permitted the defence of self-help.

88.I do not think that this case can assist Mr Kwok’s argument.  In that case, Andrew Cheung J of the Court of First Instance[44] pointed out that the concept of self-help only applied when the defendants were then lawfully exercising their right of assembly and the right to freedom of expression, and the police cordon caused an unlawful infringement of their exercise of those rights. 

89.This is absolutely not what happened in the present case.

90.In SJ v Leung Kwok Wah[45], Lam JA of the Court of Appeal[46] pointed out that even if engaging in a demonstration was a sort of self-help behaviour, after all, it depended on whether excessive force had been used.

91.Undoubtedly, excessive force was used in the present case.

92.In the United Kingdom case R v Jones (Margaret)[47]cited by Mr Man, Lord Hoffmann in the House of Lords made the following observations[48]:

(1) we cannot ignore the fact that we are in a democratic society;

(2) a tight control of the use of force is necessary to prevent society from turning into anarchy;

(3) citizens who come across crimes are normally expected to call the police and not to take the law into their own hands;

(4) self-help should only be applied under very exceptional circumstances;

(5) to legitimise the use of force would set a most dangerous precedent, particularly when the use of force is not for defending oneself or one’s own property but for fighting the interests of the community at large.

93.I respectfully agree with these observations.

94.Mr. Kwok has also said that where tyranny appears, then people have the right to stop its formation, and if the courts prohibit the people's resistance, it means the courts work with the executive/legislative branches, which contravenes the principle of separation of powers.  I am in agreement with Mr Man's submission that the court should not be dabbling in what are essentially political issues.  In any event, objectively speaking, the reality is vastly different from tyranny.

95.Apart from finding it difficult to concur with the submission that a tyranny was in formation, I am also of the view that one must not accept readily the proposition that the public may be tolerated in resorting force on the basis of such a hardly defined concept, as this would pose the risk of bringing society into a state of anarchy.  As Mr Man said, if the public encountered what they considered unjust and then took matters into their own hands to enforce what was correct in their sense of justice instead of trying to stop or striving for it by legal means, that was precisely what the court in Jones[49]said should be discouraged.  The establishment of various institutions in society and the designing of various procedures aim at protecting the rights of various aspects and balancing different interests.  Claiming that a tyranny is in the course formation just lends itself easily as a political slogan and an excuse to abusive use of violence.

96.None of the arguments in support of this ground of appeal stands.

Ground of appeal (3)

97.Mr Kwok contended that the evidence was insufficient to support the charge of unlawful assembly.

98.In considering this charge, the magistrate has made the following analysis:

“26. Both parties have spent quite some time submitting on the elements in the first charge of ‘participating in an unlawful assembly’. After careful consideration, the court finds that the elements of the offence have been set out clearly in the particulars of the charge, namely:-

(a) three or more persons assembled together;

(b) conduct themselves in a disorderly or provocative manner; and

(c) likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace.

27. As to how the above elements of the offence are to be interpreted, the court finds that they have been discussed in detail in Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556, and I respectfully adopt the explanations in that case.

28. In the present case, the evidence shows that at the time of the incident all defendants were present at the scene, and so of course the court can find them to be taking part in the assembly, but the court does not think there is sufficient evidence to rule that they were taking part in an unlawful assembly.  It is true that people were assembling at the scene, but before the situation became one that met the second and the third elements of the charge, the assembly was not yet unlawful.  Therefore, in proving the charge, the prosecution had to adduce evidence to prove how each defendant conducted themselves in a disorderly or provocative manner, and the court has to be further satisfied that such conduct was likely to cause any person reasonably to fear that the defendants would commit a breach of the peace, or provoke others to commit a breach of the peace[50].  Only by then would the prosecution succeed in proving its case.

29. In other words, that someone at the scene conducted himself or herself in a manner of breaching the peace did not render those who assembled together as participants of an unlawful assembly.  The people assembled may well belong to the same organisation with the same request, but so long as they did not engage in conduct that disrupted order or assisted in such disruption, the second element is not met.  In the present case, the court sees the following action as disorderly conduct: inserting bamboo poles into the gap between door panels, forcibly prying open a closed or locked glass door, or pulling and dragging or pushing over mills barriers, etc, or forcibly opening glass doors with bare hand, or hitting, kicking and punching glass doors violently and so on.

30. As for the third element of the charge, in the present case, the court is of the opinion that it suffices to consider the first part, that is, whether the conduct of the defendants was likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace.  The court finds that there is sufficient evidence to prove this element.  When somebody conducted himself/herself in such disorderly manner at the scene, there were LegCo staff and security guards working and the press was present as well.  The evidence showed that, in fact, some members of the LegCo staff got panicked on seeing the situation at the scene.  And, from the situation seen in all video footage, the court has no doubt that the disorderly conduct concerned would cause a third party reasonably to fear that the persons so assembled would commit a breach of the peace.  Therefore, the court finds that if the evidence showed that any of the defendants conducted himself/herself in the above disorderly manner described, then the second and third elements of the charge are both proved.

31. The court made the following findings of facts as to the role of each defendant in the incident.  Firstly, the court finds that all the defendants have participated in the assembly outside the Complex, and the court now deals with the conduct of each defendant at the material time with reference to what is shown by the video clippings.

32. Firstly, the court finds that Dl, D2 and D3 attempted to pry open the glass door by force with tools such as bamboo poles at various stages.  The court finds that such behaviour was clearly disorderly conduct.  Prying open closed or locked glass door with inappropriate tools by force not only risked causing injury to oneself and damage to the glass door, but may also injure other people present.  The court finds such behaviour to be disorderly conduct.  Also, the court finds that both D6 and D15 had charged at and pulled and yanked the glass door.  In addition, video footage shows that D6 while in the crowd waved his hand to summon other demonstrators to come up to the glass door to help, and that Dl5 pushed and kicked the glass door.  The court finds all the above behaviour to be disorderly conduct.

33. Having found that each of the defendants did conduct themselves a disorderly manner in the assembly, the court further considers whether such conduct would cause any person reasonably to fear that the defendants would commit a breach of the peace.  According to the earlier analysis, the answer must be in the affirmative. The defendants' conduct has caused LegCo staff present to fear and even worry about their own safety.  The consequence of forcibly prying or opening the door would be not only damage to the glass door thereby causing loss of property, but also that the glass door might be broken and the crowd might then charge into the Complex, and those behind the door would likely be injured or physical contacts might be resulted among different people.  Therefore, the defendants’ conduct would definitely cause people present at the scene reasonably to fear that a breach of peace would be committed.

34. In the light of the analysis above, it is held that the prosecution has successfully proved Charge (1).  The defendants are found guilty of Charge (1).[51]

99.In the present case, the essence of the issue in dispute is not what has happened as shown by the evidence but about the following concepts:

(1) whether there were any avengers;

(2) whether the defendants assembled together (corporate nature[52])。

100.The charge of unlawful assembly in the present case is brought under s 18(3) of the Public Order Ordinance[53], which provides that any person who takes part in an assembly which is an unlawful one by virtue of subsection (1) shall be [guilty of] the offence of unlawful assembly.

101.According to subsection (1), when three or more than three persons assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly.

102.The concept of an avenger has connection with this element of the offence.

103.In HKSAR v Chow Nok Hang[54], the Court of Final Appeal in dealing with the offences under s 17B(1) and 17B(2), discussed the meaning of breach of the peace.  Ribeiro PJ said:

“Once a demonstrator becomes involved in violence or the threat of violence — somewhat archaically referred to as a ‘breach of the peace’ — that demonstrator crosses the line separating constitutionally protected peaceful demonstration from unlawful activity which is subject to legal sanctions and constraints. The same applies where the demonstrator crosses the line by unlawfully interfering with the rights and freedoms of others. Ds were fully entitled to protest against the MTR’s fare increases in the exercise of their rights of peaceful assembly and demonstration. But they crossed the line. D2’s conduct whereby one or more of the persons on the podium were put in fear of being harmed, constituting common assault, amounted to a breach of the peace which gave rise to a power of arrest and provided a basis for binding him over to prevent future breaches.” [55]

104.The decision below by English Court of Appeal in R v Howell[56] has been confirmed by the Court of Final Appeal as the correct definition of breach of the peace: there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.[57]

105.Mr Kwok’s concept of avenger also comes from this case of R v Howell, in which the gist of Watkins LJ’s proposition is: we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done.  There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property. [58]

106.Mr Kwok has also cited two passages from Litton PJ’s judgment in Chow Nok Hang of the Court of Final Appeal, of which the gist is: (1) If the violence or threat of violence only comes from the accused himself, there can be no breach of the peace[59]; and (2) An important question to ask is: are the persons in the vicinity likely to engage in an affray, to behave riotously, to act violently or to threaten violence as a result of the behaviour of the accused? [60]

107.As such, Mr Kwok submitted that if there was no avenger, there was no breach of the peace.

108.Mr Kwok has also cited cases like R v To Kwan Hang[61]  and HKSAR v Siu Mun Yee [62] to support what he said.

109.In the circumstances of the present case, apart from law enforcing officers and the press, there were only the demonstrators against the North East New Territories Development Project, and from the evidence, there was nobody having opposite stance.  In other words, there may not be anyone who would revenge because of the behaviour of the accused.

110.Mr Man agreed that as far as the s 17B offence was concerned, those who finally breached the peace must be people by the side.  However, he asserted that s 17B of the Public Order Ordinance (ie the offence dealt with in Chow Nok Hang) differed from s 18 which was being dealt with by this court.  He also cited SJ v Leung Kwok Wah[63] which dealt with the offence under s 18 to support his argument.

111.In SJ v Leung Kwok Wah, Lam JA of the Court of Appeal[64] analysed in detail the elements of the criminal offence of unlawful assembly (the offence under s 18).

112.Lam JA (as he then was) pointed out that according to the provision, an element of this offence had connection with “any person  reasonably to fear”, and this involves consideration of two aspects[65].

113.The first aspect to be considered is:

(1) whether the persons so assembled intended to cause such fear (subjective limb); or

(2) whether the conduct of the persons so assembled was likely to cause such fear (objective limb).

114.The second aspect to be considered was about what the fear was, which can be either:

(1) the persons so assembled would commit a breach of the peace; or

(2) the persons so assembled would by the conduct described in the Ordinance provoke other persons to commit a breach of the peace.

115.The so-called “any person” referred to a person at the scene, who might be described as an “innocent third party”, meaning someone who does not take part in the unlawful activity, including reporters, and also including those trained to face the appellants’ conduct, such as security guards, police officers and so on[66]. It was not necessary for the prosecution to call those third parties to prove that they had in fact been in fear there would be a breach of the peace[67].  As Macdougall VP of the Court of Appeal had said,the evidence has clearly established that the situation must cause third parties who were not participants in the assembly to be likely to have the fear in question and also those in the assembly but not in favour of taking such action to be likely to have the fear in question.

116.According to Lam JA, the fear in question did not refer to the fear that the above persons had about their own personal safety, but the worry that the situation might go worse so that what is described in para 114(1) and (2) herein would happen.

117.Under (1), it was the worry that the persons who assembled themselves would commit a breach of the peace.

118.Under (2), it was the worry that other persons at the scene would be provoked to commit a breach of the peace by the conduct of those assembled.  Therefore, in addition to those assembled and third parties at the scene in situation (1), one more type of persons was involved here, and they were those being provoked to commit a breach of the peace at the scene.  This third type of people were the avengers referred to by Mr Kwok.  In other words, avengers might not necessarily exist in situation (1).

119.I respectfully agree with the view of Lam JA.

120.As Lam JA said, this offence was enacted to prevent a breach of the peace, and it was directed at the situation that would deteriorate and become a breach of the peace if no action was taken to stop it.

121.Although both ss 17B(2) and 18 are related to breach of the peace, upon a closer look at the provisions, it can be seen that these two offences are directed against quite different behaviour.  Section 17B(2) is directed at the situation where someone has conducted himself/herself as described in the Ordinance with the intent to provoke others into a breach of the peace, or where the conduct of that someone is likely to cause a breach of the peace, and obviously, the one who commits a breach of the peace is not the person who conducted himself/herself in the manner as described in the Ordinance, but by others.  This is not the case for s 18 which is directed at the fear caused by the conduct of those assembled, and one such fear is that those assembled would commit a breach of the peace — and such fear is in respect of the person who acts, and not any third party.

122.One of the points Mr Kwok submitted was that Lam JA might have misconstrued s 18, in particular that the wording used in the English version was “will commit a breach of the peace” and that in the Chinese version is “會破壞社會安寧”.  There might be an ambiguity between the two versions.  I do not think there is any ambiguity.

123.The above analysis shows the difference between the offence in the present case and that under s 17, which is the result of a correct construction of the Ordinance.

124.The magistrate made the following findings:

“Having found that each of the defendants did conduct themselves a disorderly manner in the assembly, the court further considers whether such conduct would cause any person reasonably to fear that the defendants would commit a breach of the peace. According to the earlier analysis, the answer must be in the affirmative. The defendants' conduct has caused LegCo staff present to fear and even worried about their own safety. The consequence of forcibly prying or opening the door would be not only damage to the glass door thereby causing loss of property, but also that the glass door might be broken and the crowd might then charge into the Complex, and those behind the door would likely be injured or physical contacts might be resulted among different people. Therefore, the defendants’ conduct would definitely cause people present at the scene reasonably to fear that breach of peace would be committed.”[68]

125.The finding is well supported by evidence and is safe and satisfactory.

126.Bokhary JA,[69] in R v To Kwan Hang,[70]pointed out that someone commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which puts someone in immediate danger of injury or property in immediate danger of damage.  On the other hand, conduct which was peaceful in itself might, if persistently pursued, provoke others to violence, and if a violent response could be considered the natural consequence of such persistent conduct, the person who pursued such conduct could be regarded as having committed a breach of the peace.[71]

127.In another part of his submission, Mr. Kwok argued that the evidence did not support the existence of “corporate nature”, and each of the appellant might have conducted themselves in the manner so charged for their own individual purposes.

128.In R v To Kwan Hang, the Court of Appeal held that for persons who assembled together for an innocent purpose and conducted themselves in a peaceful manner, they would not be turned into a member of an unlawful assembly by the presence of others who conducted themselves unlawfully.[72]

129.This is the concept that Lam JA called “corporate nature” [73] in SJ v Leung Kwok Wah after examining some relevant precedents.

130.Section 18(1) of the Public Order Ordinance provides there must be three or more persons conducting themselves as prescribed in the provision (ie in a disorderly, intimidating, insulting or provocative manner) before any unlawful assembly is considered.  In addition, before convicting the accused persons, the court has to determine if these persons conduct themselves in such manner for the purpose of the assembly, and before making the determination, regard may be paid to see if there is connection or sufficient nexus, between the conducts of these persons to justify a finding of responsibility of a corporate nature of they together conducting themselves in such manner for the purpose of this assembly.  Where three or more persons conduct themselves in a manner not permitted by law, but do so at different places of the assembled area, for different purposes, or as a result of different reasons, or involving or affecting different groups, then there is no sufficient connection or nexus between these persons to constitute any responsibility of a corporate nature; and therefore, if there are fewer than three in each such group of persons, there is no unlawful assembly.

131.The magistrate did not expressly indicate that he had considered the relevant concept. But, it had been raised in the defence submission and it was unlikely that he had overlooked it.  The magistrate’s findings on facts appears to have been directed at this issue [74]:

132.Mr Man has made the following submissions:

“The court has spent much time on watching the video footage of the conduct of each defendant (including the appellants) at the time of the incident. The footage showed that at the material time, they were assembling outside the LegCo Complex, and trying together to force their way into the LegCo Complex with instrument, hands, feet or bodies. In the course of it, they also cooperated and assisted each other. Such evidence showed that the appellants, being at the same place, forced their way into the LegCo Complex for the same purpose. It is just because the common purpose for which the defendants tried to force their way was so clear that the trial magistrate did not describe their ‘corporate nature’ in detail.” [75]

133.He also cited Sze Kwan Lung v HKSAR[76]to support his argument.  In that case, Bokhary PJ of the Court of Final Appeal agreed with the following view:

“…once a common purpose to commit the offence in question is proved, there is no need to look further for evidence of assisting and encouraging. The act of combining to commit the offence satisfies these requirements. Frequently it will be acts of encouragement which provide the evidence of the common purpose.” [77]

134.D Pang J of the Court of First Instance[78] in HKSAR v Leung Kwok Hung [79] also agreed and adopted this view.

135.During the hearing, I watched some video footage of what had happened at the scene and saw the conduct of the individual appellant.

136.I agreed with Mr Man’s submissions in that although not all the appellants conducted themselves together at the same entrance, their common purpose was very clear and their conduct definitely met the requirement of corporate nature.

137.Mr Kwok has mentioned that the people who wanted to enter the Complex might have different ultimate purposes.  Some people might want to sit in on the meeting (in particular when there was evidence showing that LegCo had reserved some seats for an organization whose members did not turn up), some might want to use some facilities such as the library or the washroom of the Complex, and some might have other ultimate purposes.

138.First, there was no evidence in the case to prove whether the people who wanted to enter the Complex did so for the purpose of sitting in on the meeting, but the evidence only showed that many people used violence together.  Second, the ultimate purpose of entry is immaterial.  What matters is whether the accused persons had such common purpose, namely entering the Complex with force together.  The evidence shows that the answer is in the affirmative.

139.This ground does not stand.

Ground of Appeal (4)

140.The LegCo officer named in the charge is in fact one of the police constables summoned to maintain order at the scene.  This ground of appeal is directed at whether, according to the definition under LCPPO[80], this police constable is to be regarded as a LegCo officer.  The definition under the Ordinance is as follows:

“Officer of the Council（立法會人員）means the Clerk or any other officer or person acting within the precincts of the Chamber under the orders of the President and includes any police officer on duty within the precincts of the Chamber.”

141.Mr Kwok submitted that according to the definition, even police officers on duty had to act under the President’s orders for them to become officers of LegCo.  The evidence in the case shows that the President had not given such order, and therefore this police office was not an officer of LegCo.

142.According to Mr Kwok, there are three types of LegCo officers:

(1) the Clerk;

(2) any other officer or person acting within the precincts of the Chamber under the orders of the President; and

(3) any police officer on duty acting within the precincts of the Chamber under the orders of the President.

143.Mr Man’s response was that this proposition has violated the basic rules of statutory interpretation.  If it stands, then since LegCo officers of type (2) above would already completely cover those of type (3), type (3) would be rendered redundant and meaningless.

144.He refers to s 19 of the Interpretation and General Clauses Ordinance[81], which reads: “An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”  It is his submission that by this principle, unless there is any exceptional reason, statutory provisions should be given its natural meaning and should not be construed as meaningless or completely redundant.  Therefore, the “officer of the Council” should be defined as the following three types of persons, which are respectively: (1) the Clerk, (ii) any other officer or person acting within the precincts of the Chamber under the orders of the President, and (iii) any police officer on duty within the precincts of the Chamber.  Only under such construction would “include any police officer on duty within the precincts of the Chamber” become meaningful in the definition of “officer of the Council”.  Therefore, any police officer on duty within the precincts of the Chamber is an “officer of the Council”.

145.He also takes the interpretation of the “Chamber” as an example, pointing out that the places appear after the word “includes” (ie any lobbies, offices or precincts used exclusively in connexion with the proceedings of the Council) do not belong to any premises referred to before the word (ie the Chamber in which the proceedings of the Council are conducted, and any galleries and places therein provided for members of the public and representatives of the press, television and radio).  A similar situation also appears in the definition of “precincts of the Chamber”.  He submitted that from how this provision was drafted, it could be seen that what went after the word “includes” was an extension or addition to what goes before it.

146.In response, Mr Kwok points out that according to the construction suggested by the respondent, any police officer assigned to the precincts of the Chamber would not be subject to the jurisdiction of the courts because s 23 of LCPPO provides that:

“The Council, the President or any officer of the Council shall not be subject to the jurisdiction of any court in respect of the lawful exercise of any power conferred on or vested in the Council, the President or such officer by or under this Ordinance or the Rules of Procedure.”

If this were the case, executive power might override judicial power, which is hardly acceptable constitutionally.

147.In my view, this claim is a needless worry because LegCo and people of the kind are not subject to the jurisdiction of the courts only where they are in lawful exercise of relevant powers.

148.I agree with Mr Man’s submission, and find that the definition of the officer of the Council in the Ordinance should be construed and understood in the way as he has submitted, and since the police officer named in the charge was on duty within the precincts of the Chamber, he was an officer of the Council.

149.This ground of appeal does not stand.

Conclusion

150.None of the grounds of appeal stands. The appeal is therefore dismissed and the convictions upheld.

Mr Jonathan Man, Senior Assistant Director of Public Prosecutions, and Mr Gary Leung, Public Prosecutor, of the Department of Justice, for the respondent

Mr Douglas Kwok, instructed by Messrs. Tang, Wong & Chow, assigned by Director of Legal Aid, for the 1^st and 2^nd appellants

3^rd, 4^th and 5^th appellants appeared in person

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.