Read the full judgment text of FACC 5/2017 on BabelCite. This Court of Final Appeal judgment was delivered on 10 January 2018 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Hoffmann NPJ.
Criminal law – obstruction of officer of Council – Legislative Council (Powers and Privileges) Ordinance (Cap 382) s 19(b) – interpretation of 'officer of the Council' under s 2(1) – whether police officers on duty within precincts of Chamber require prior invitation by President to enter – Article 78 of the Basic Law – separation of powers – Police Force Ordinance (Cap 232) s 10 – Public Order Ordinance (Cap 245) s 18(3) – whether police officer was acting in execution of duty when obstructing protesters seeking entry to Legco building – Administrative Instructions for Regulating Admittance and Conduct of Persons (Cap 382A) ss 11 and 12(3) – police officers carrying out ordinary policing duties within precincts of Legco qualify as 'officers of the Council' without need for prior invitation – on 13 June 2014 protesters used bamboo poles, metal bars and Mills barriers to attempt forced entry into Legco during Finance Committee meeting discussing Northeast New Territories New Development funding – Legco security officer sustained fractured toes and approximately $200,000 property damage caused – Mr Tsang as President of Legco and Chairman of LCC requested police assistance – appellant 'vigorously shoved' police officers forming cordon to disperse protesters – appellant convicted before magistrate of unlawful assembly and of obstructing Inspector Kwok contrary to s 19(b) – convictions upheld by Wong J (HCMA 229/2016) – leave to appeal against unlawful assembly conviction refused (FAMC 18/2017) – leave to appeal against s 19(b) conviction granted on two certified questions – Article 78 of Basic Law confers no protection to non-members and does not restrict police entry into Legco precincts – LC(PP)O statutory scheme confers unrestricted right of entry on officers of Council, in contrast to members of public, with no qualification making police entry conditional on prior invitation – even on appellant's case, Mr Tsang's request for police assistance, whether characterised as President or as Chairman of LCC, objectively constituted an invitation by the President – acceptance that police may lawfully enter without invitation to perform ordinary duties is difficult to reconcile with denying their status as officers of Council under s 2(1) – lawful restriction on access to Legco was in place through Administrative Instructions – s 11 required orderly behaviour and compliance with directions of any officer of Council for keeping order – s 12(3) authorised officers of Council to refuse admission to disorderly persons – Legco security staff had lawfully blocked off entrances and police were acting in execution of duty assisting them to enforce those directions – inspector was therefore acting in execution of duty both under PFO and as officer of Council under s 19(b) – answer to Question 1: No, subject to the observation that entry may be to carry out police officers' ordinary duties, not necessarily confined to dealing with issues arising under s 8(3) – answer to Question 2: Yes, assuming the officer enters the precincts of the Chamber in order to carry out his ordinary policing duties – appeal dismissed.
Legal issues: Whether police officers require authority under s 8(2) or (3) LC(PP)O to enter precincts of Chamber · Whether a police officer on duty without s 8 authority is an 'officer of the Council' under s 2 LC(PP)O · Whether Inspector Kwok was acting in the execution of his duty when obstructed
Outcome: Appeal against conviction under section 19(b) of the Legislative Council (Powers and Privileges) Ordinance dismissed.
Cited by 17 cases · Cites 2 cases