HKSAR v. Lee Sin Chee

[English Translation – 英譯本]

HCMA 570/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRATCY APPEAL NO 570 OF 2015

(ON APPEAL FROM ESCC NO. 1187 OF 2015)

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JUDGMENT

1.The appellant was charged with one count of “wilfully obstruct a police officer in the due execution of his duty”, contrary to section 36(b) of the Offences Against the Person Ordinance, Cap. 212. The appellant pleaded not guilty. She was found guilty as charged by Mr. Colin Wong, a magistrate sitting in Eastern Magistracy, and was fined $2500. The appellant now appeals against conviction.

Admitted facts

2.Both the prosecution and the appellant had admitted the following facts at trial under section 65C of the Criminal Procedure Ordinance, Cap 221:

(1)   The appellant has a clear record;

(2)   At 3.07 in the early hours of 15 October 2014, DPC 11698 arrested the defendant at the junction of Lung Wo Road with Tim Wa Avenue for the offence of unlawful assembly and obstructing a police officer in the due execution of his duty;

(3)   At around 0300 hours on 15 October 2014, PC 58811 videotaped the conditions at the junction of Lung Wo Road with Tim Wa Avenue with a video-recorder.  The images were recorded onto an SD card.  After the SD card was seized, it was kept under police custody without being tampered with.  The SD card was submitted to the Court and marked as P1.

Undisputed facts

3.Undisputed facts included that on 15 October 2014, police officers were carrying out an operation of maintaining and restoring order at Lung Wo Road.  The appellant was at the junction of Lung Wo Road with Tim Wa Avenue in the small hours on the material day.  The appellant was sitting on the pavement. There was no other assembly participant with her at her location.  At that time, there were only the appellant and police officers. In the end, the police officers had to carry the appellant away. When the appellant was being carried away, she did not resist or struggle but let her body go completely limp.

Prosecution case

4.The Magistrate in his Statement of Findings stated the prosecution case as follows:

“4. The prosecution case was that on the material day, in the operation of restoring order at Lung Wo Road, the police proceeded while asking meeting participants to disperse using amplifiers. Upon reaching the junction of Tim [Wa] Avenue with Lung Wo Road, the police saw the defendant sitting on the pavement. PW1 [WSgt 1472] warned the appellant: ‘Madam, you are now participating in an unlawful assembly. Your presence has occupied other road users (sic), causing obstruction. Please leave with me. If you do not leave, you will be removed and may be charged with obstructing a police officer (in the due execution of his duty).’

5. The defendant ignored the warning given by PW1 and did not give any response. PW1 gave the warning again, at the same time, WPC 6679 [PW3] was next to them. Then, they lifted and moved the defendant with one of them on each side. The defendant reacted pessimistically, completely relaxing her limbs when she was being removed, resulting in PW1 and PW3 having to take her away with force.

6. The prosecution had called 3 witnesses.  PW1 and PW3 spoke about how they carried out their operation and how they gave warning, and that PW1 confirmed the defendant was arrested.  In cross examination, they agreed that before the operation, they were briefed as to how to remove demonstrators.  PW2, DPC 11698’s evidence only mentioned that he was at the scene, with no others parts that was of assistance to the prosecution case.”

Defence Case

5.The Magistrate stated the defence case as follows:

“7.   The defence called no witness.  The defence case was that there was no warning and there was no obstruction.  The defence relied on the video clip from “D3”, which clearly showed the circumstances of how the defendant was removed.”

6.Having considered the evidence, the Magistrate found that PW1 had not warned the appellant, and he also made the following findings:

“11. I cannot rely on the evidence of PW1 and PW3 in the circumstances that no warning was given to the defendant before she was being removed. However, regarding the time when the defendant was being removed, I saw from the clip in “D3”, and that in the defence submission, it was said to be undisputed that the defendant completely relaxed her body for several police officers to remove her. During such course, the defendant did not struggle against nor resist her removal. This corroborated with the testimonies from PW1 and PW3 that the defendant relaxed her body when she was being removed. Furthermore, from the clip, it was seen that the police had shouted “leave” at the defendant, demanding the defendant to leave and the defendant raised her hands high. It was clear that the defendant was conscious and knew what was happening and decided not to respond in anyway.

12.   Therefore, I am satisfied beyond all reasonable doubt that the police operation on that day was to restore order on Lung Wo Road.  The police had asked the defendant to leave, however, the defendant did not give any response, only raised her hands and relaxed her limbs, which required the police to remove her, and during the course of the removal, she relaxed her body.  The only irresistible inference that could be drawn from the defendant raising her hands and not responding was that the defendant knew the police were carrying out their duty and conducting an operation, when asked to leave, she deliberately relaxed herself with the purpose of requiring the police to remove her.  I will make my findings on the basis of the above facts.”

7.The Magistrate then found the removal of the defendant part of the police duty. Before he convicted the appellant guilty as charged, he had considered the standard that must be established (for an action) to be considered as “obstruction” to police duty, set in the Court of Final Appeal Case HKSAR v Tam Lap Fai[1], as well as another authority HKSAR v Wan Ming Yee[2].

Grounds of Appeal

8.Counsel for the appellant Mr. Randy Shek submitted 3 grounds of appeal:

(1)   The Magistrate had wrongfully found that PW1 and PW3 were in the due execution of their duty;

(2)   The Magistrate had wrongfully found that the appellant’s actions amounted to obstruction; and

(3)   The Magistrate had wrongfully found that the appellant’s intention was to wilfully obstruct police officers in their execution of their duty.

Ground of Appeal 1: The Magistrate had wrongfully found that PW1 and PW3 were in the due execution of their duty

9.Mr. Shek referred to HKSAR v Lo Yau[3] (transliteration) and HKSAR v Kwan Kin-sum[4] (transliteration) and submitted that the trial Magistrate failed to analyze the following matters:

(1)   Whether the two police officers had authority, under the law, to evict and remove the appellant;

(2)   If they had, from where did they get the authority; and

(3)   Whether the two officers exercised lawful authority, (whether that) was applicable to the appellant and whether it met the requirement of proportionality.

10.Mr. Shek’s argument was basically that the appellant was on the pavement, there was no one beside her, it was not a “must” for the police to evict her. Furthermore, there was no evidence to suggest that the appellant was participating in any public meeting.  The appellant was different from the demonstrators who had occupied the thoroughfare of Lung Wo Road.  There was no evidence to suggest that the appellant shared the same purpose with other persons who gathered on Lung Wo Road  (which is different from HKSAR v Chan Wai Yip Albert[5]).

11.Mr. Shek submitted that the appellant exercised her right to protest in a peaceful sit-in. Even though there was a public meeting on the thoroughfare of Lung Wo Road, the appellant was not involved.  The appellant’s peaceful, non-violent action would not turn into unlawful behaviour because of others’ unlawful acts (relying on the analysis made by Bokhary JA in R v To Kwan Hang[6]).

12.Mr. Shek submitted that even if the appellant was in effect participating in a public meeting, and that the police had the authority to evict participants, the police still had to fulfil the requirement of “proportionality”.  It was for sure that the appellant was participating in a peaceful meeting, as there was no Notification of intention (to hold a public meeting) given under (section 7 of the) Public Order Ordinance, it was an unauthorized meeting. Although the police did not have the positive duty to take measures (as the appellant referred to in Leung Kwok Hung & Others v HKSAR[7]), it did not automatically give them authority to deprive the appellant of her right to peaceful assembly.  Measures taken by the police had to be proportionate.

13.Mr. Shek also submitted that when considering whether the police’s action was proportionate, the following matters should be considered:

(1)   Was it necessary to clear all pavements in order to restore traffic and order on Lung Wo Road,

(2)   Even if it was, to what extent should the area of the pavement be cleared and was the appellant in the area;

(3)   Even if the appellant was in the area, was it necessary for the police to evict people engaging in peaceful sit-ins;

(4)   Did the police have other ways that could protect the right to peaceful assembly while restoring traffic and order on Lung Wo Road? For instance, arresting only the demonstrators occupying the thoroughfare so as to warn demonstrators on the pavement not to rush out to the thoroughfare? Could mills barriers be placed in between the pavement and the thoroughfare to prevent demonstrators from rushing out to the thoroughfare?

(5)   The prosecution had not adduced evidence in support of the police actions being proportionate on the above issues; and

(6)   There was no evidence to show that the police’s clearing operation was that the police would evict all citizens on sight on the pavement along the whole of Lung Wo Road or otherwise make arrests for obstructing the police.  According to PW3, “there were people who left in accordance with instructions”, and it seemed that some did not.  According to the video recording in D3, the actual approach of the police that evening was not clearing completely or otherwise making arrests.  There were citizens who were walking on the pavement in a relaxed manner without being evicted, then why was it necessary to evict the appellant?

14.The appellant submitted that actions taken by the police that evening in clearing the pavement did not conform with the requirement of proportionality and that the two police officers were not in the due execution of their duty.

The Respondent’s Reply

15.Mr. Ned Lai, Acting Senior Assistant Director of Public Prosecutions, for the Respondent, first outlined the duties of police officers provided by law, including the powers and duties under the common law (by reference to R (Laporte) v Chief Constable of Gloucestershire[8] and HKSAR v Chiu Hin Chung[9]) and Hong Kong legislation (including the Police Force Ordinance and the Public Order Ordinance).

16.The Respondent made reference to the circumstances of this case to show that the police officers were in the due execution of their duty:

“Circumstances of this case:

49. It was over two weeks into the “Occupy Central” movement when this case occurred. On the material day, demonstrators occupied and used objects to block part of the thoroughfare in order to create a blockade at Lung Wo Road.

50. Briefing was given to police officers before they took action. Their aim was to restore “traffic” and “order”.

51. At the material time, the police gave warning through amplifiers constantly, warning demonstrators that they were participating in an “unlawful meeting” or “unlawful assembly”, requesting them to leave immediately or else the police would use force.

52. As the police proceeded along Lung Wo Road, they warned demonstrators in the unlawful assembly to leave immediately or else the police would use reasonable force, through amplifiers constantly. As seen from video clips in P1 and D3, the frontline officers in the right most (southward) of the check line facing Wanchai were proceeding forward using transparent shields as guards. Furthermore, almost all police officers who stationed at the police defence line at the junction of Tim Wa Avenue with Lung Wo Road wore riot helmets.

53. At the material time, though the appellant was on the pavement, her position was very close to the thoroughfare of Lung Wo Road. Apart from police officers, there were quite a number of demonstrators at Lung Wo Road and Tamar Park, in the vicinity of the appellant.

54. The police, including officers in the check line facing Wanchai, PW1 and PW3, had the factual basis to have the reasonable fear that at the time, at the thoroughfare of Lung Wo Road and its pavement, 3 or more demonstrators would be present, acting in a disorderly manner that would breach the peace; or that those 3 or more demonstrators would, by those acts, incite others to breach the peace.

55. The Respondent submitted that on the basis of the evidence the Magistrate had found to be reliable, the demonstrators occupied the thoroughfare and blocked vehicular traffic, created a blockade of the thoroughfare with objects…etc., could involve and include the following different duties of police officers or the police. Therefore, the court had sufficient basis to find that the officers at the check line facing Wanchai, including PW1 and PW3, were, at the material time, according to relevant law, in due execution of their following duties at the thoroughfare of Lung Wo Road and its pavement :-

(1) Responsibilities of “breach of peace” (sic), “maintaining public order”;

(2) To prevent and investigate criminal and unlawful activities, including:

(a) public nuisance

(b) obstruction of a public place

(c) unlawful assembly

(d) criminal damage

(e) common assault…etc.,

(3) To prevent loss of life and damage to properties;

(4) To arrest persons who could be lawfully arrested by reason of (1), (2) and (3) above and there were sufficient grounds to arrest;

(5) To control the traffic on the public thoroughfare and to remove obstructions on the public thoroughfare;

(6) To protect public properties from any loss or damage…etc..”

17.In response to the appellant’s claim that the appellant was participating in a peaceful meeting, the Respondent pointed out that there was no evidence to show she was participating in a peaceful meeting, or she was exercising her right to freedom of speech or that she was in a demonstration.  She merely said, after arrest, that she was “sitting down in a peaceful demonstration” on westbound of Lung Wo Road, “how (am I) obstructing the police? I am only sitting on the metal railing and you arrest me for that!” [The relevant evidence was in the video clip in P1]

18.The Respondent submitted further that even if the court is of the view that there might be constitutional as well as human rights disputes and issues in this case, there was nothing unconstitutional or in contravention of the Bill of Rights in respect of the police “restoring traffic and order on Lung Wo Road”.

19.The Respondent cited HKSAR v Ng Kung Siu[10] to point out that since such measure was time and place specific, and was only against those persons who conducted specific unlawful acts, it was an appropriate restriction of fundamental rights and was not excessive.  Measures taken by the police were clearly in accordance with the law (common law and statutes).  Such measures were for the purpose of restoring traffic and order on Lung Wo Road, as well as to protect citizens’ lives and properties.  The measures concerned also passed the proportionality test, because they were time, place and person-specific.  The measures taken by the police had not gone beyond what was necessary to ensure the two legitimate aims of public safety and public order (ordre public) in respect of the right of freedom of speech and the right to peaceful assembly.

Police duty and authority

20.I will first outline the duties and powers of the police in respect of this case.

   Common Law

21.The police have the common law duty to seek to prevent conduct in breach of the peace from occurring. Where a police officer comes to know or has reason to be concerned that someone’s conduct causes or would cause a breach of the peace, he is to prevent such conduct by making an arrest or taking other measures. (paragraph 29 of Lord Bingham’s judgment in R (Laporte) considered[11])

22.Having taken into account Watkins LJ’s judgment in R v Howell[12], (at page 426G-H), I find that breach of the peace encompasses the following 3 circumstances[13]:

(1)   Where harm is actually done or is likely to be done to a person;

(2)   Where harm is actually done or is likely to be done to the property of a person in his presence;

(3)   Where a person is in fear of harm to his person, or in his presence to his property.

   Statute Law

23.Section 10 of the Police Force Ordinance, Cap 232 states as follows:

“The duties of the police force shall be to take lawful measures for—

(a) preserving the public peace;

(b) preventing and detecting crimes and offences;

(c) preventing injury to life and property;

(d) apprehending all persons whom it is lawful to apprehend and for whose apprehension sufficient grounds exists;

(e) regulating processions and assemblies in public places or places of public resort;

(f) controlling traffic upon public thorough fares and removing obstructions therefrom;

(g) preserving order in public places and places of public resort ……;

……

(o) protecting public property from loss or injury;

……

(r) executing such other duties as may by law be imposed on a police officer.”

24.Section 18 of the Public Order Ordinance, Cap. 245 is as follows:

“(1) When 3 or more 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.

(2) It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid.

(3) Any person who takes part in an assembly which is an unlawful assembly by virtue of subsection (1) shall be guilty of the offence of unlawful assembly and shall be liable –

(a) on conviction on indictment, to imprisonment for 5 years; and

(b) on summary conviction, to a fine at level 2 and to imprisonment for 3 years.

Findings

25I note that Mr. Shek was not saying that the police were not in the due execution of their duty when they took measures or actions to clear the thoroughfare of Lung Wo Road, his point was based on the location of the appellant: the pavement. His submission was that the police were not in due execution of their duty when they evicted and removed the appellant who was on the pavement.

26I disagree with Mr. Shek’s argument. I have considered the circumstances at that time: at the material time, part of the thoroughfare of Lung Wo Road was blockaded by demonstrators with objects. There were a lot of demonstrators occupying parts of thoroughfare of Lung Wo Road, obstructing traffic, and it was very chaotic at the scene. The circumstances at that time amounted to “unlawful assembly” as it was defined in section 18 of the Public Order Ordinance. When the police proceeded in a check line to evict the crowd, the police constantly made warnings through amplifiers asking meeting participants to leave. The content of the warning was as follows: “Everyone present, you are now participating in an unlawful assembly, the police now…please leave the scene immediately, or else the police will use reasonable force to make you…” (from the video clip of P1).

27I disagree with the appellant’s submission that the police only had authority to clear the thoroughfare and no authority to clear the pavement; or that it was “unnecessary” to do so. Bearing in mind the circumstances at that time, the police had to clear the scene (including the thoroughfare and the pavement), to prevent people from gathering on the pavement and creating trouble. The measures taken by the police were reasonable.

28I refer to what Lord Bingham said in the case of R (Laporte), where he acknowledged the danger of hindsight and he would accept that the judgment of the officer on the spot, in the exigency of the moment, deserves respect (see paragraph 55 of the judgement[14]).

29Viewing the matter with “hindsight”, it is possible to say that in the light of all the circumstances that the appellant was on the pavement at the material time, the police might not need to evict her, however, I have already explained that the measures taken by the police at the scene were reasonable in the light of all the circumstances at the material time.

30Although the evidence showed that the 2 officers (the 2 prosecution witnesses) did not give further warnings to the appellant, from the circumstances at the time, it was impossible that the appellant did not not hear the warnings given by the police through amplifiers. The appellant refused to leave even though she had heard the warnings. Under such circumstances, the police had reason to believe that the appellant was a participant of an unlawful assembly. The police therefore, had reason to evict the appellant, and when the appellant refused to leave, remove her by using reasonable force.

31There is no definite evidence on why the appellant was present at the scene. Was she a protester in a peaceful sit-in? However, she refused to leave even though she heard repeated warnings given by the police and did not tell the police expressly that she was exercising her right to peaceful assembly. She only claimed to be a participant of a peaceful assembly for the first time after she was arrested. Under such circumstances, the police definitely had authority under the common law and section 10 of the Police Force Ordinance to maintain public order and stop the appellant from continuing the act of assembly referred to in section 18 of the Public Order Ordinance and evict the appellant by removing her.

32Even if the appellant was really exercising her right to peaceful assembly, I agree with the submission of the Respondent (see paragraph 19 of this judgment) that the measures taken by the police had passed the tests of “necessity” and “proportionality”.

33This Ground of Appeal is not substantiated.

Ground of appeal (2): The Magistrate had wrongfully found that the   appellant’s actions amounted to obstruction

34.Mr. Shek cited evidence on the appellant’s actions, namely that she completely relaxed herself, raised both her hands, requiring the police officers to remove her.  He pointed out that the magistrate overlooked that she participated in a peaceful assembly when considering whether her actions had caused “obstruction”.

35.Mr. Shek submitted that in Yeung May Wan v HKSAR[15], it was held that when a person was exercising his/her constitutional right to peaceful assembly, in considering whether this person’s action amounted to “obstruction”, the fact that the person was exercising his/her right would affect the extent of the offence of “obstruction”.

36.Mr. Shek submitted that the Magistrate should consider how much the police had in the execution of their duties affected the appellant’s peaceful assembly, and should not consider only how much obstruction the appellant had caused to the police in the execution of their duties.  Otherwise, any citizen who participated in a peaceful assembly could be easily convicted of “obstructing a police officer in the due execution of his duty”, thus indirectly allowing the police to deprive the public of their right to peaceful assembly with this charge.

37.Mr. Shek referred to the judgment of HKSAR v Tam Lap Fai, and submitted that the Magistrate deviated from the requirement and did not correctly analyse the effect of what the person has done on what the officer is doing.  The Magistrate only said that the appellant had “obviously raised the difficulty for police officers in the execution of their duty” by requiring 2 or more persons to be involved in removing her, but he did not analyse in what way the appellant’s action affected the operation of “restoring traffic and order on Lung Wo Road”.

38.Mr. Shek pointed out that the area of operation of “restoring traffic and order on Lung Wo Road” was one of a 1 kilometre or more radius, the appellant was being carried for 5 metres without any struggle or shuffle, the time needed would not have exceeded 30 seconds.  It had minimal effect on the “restoring of traffic and order on Lung Wo Road”, and it was exactly the “mere inconvenience or trifling additional effort” the Court of Final Appeal referred to in Tam Lap-Fai.

The Respondent’s Reply

39.The Respondent also cited the meaning of “obstruction” discussed in the Tam Lap-Fai case, and listed out the appellant’s actions and the police action as well as the effect the appellant’s action had on the police action (which I will list out in detail below).  The Respondent submitted that even if the appellant was exercising her basic right to protest peacefully, there was a basis in this case to conclude beyond all reasonable doubt that the appellant’s actions had caused obstruction to the two police officers in respect of their "due execution of their duty”.

The Court’s consideration

40.The appellant emphasized the argument of the appellant that she was exercising (her right) to peaceful assembly at the material time.  When I dealt with Ground of Appeal (1), I already pointed out expressly that there was no evidence to show the appellant was exercising her right to peaceful assembly at the material time (though she so claimed after arrest).   I would mention here that the appellant did not raise the point of her participating in a peaceful assembly in the original trial.  The only record of such claim after her arrest existed only in the video- recorded interview P1 and at the time of the trial, the relevant DVD was not played in court.

41.In Tam Lap-Fai, the Court of Final Appeal laid down the legal test on “obstruction” as follows (page 218G-J):

“(1) in Hinchliffe v Sheldon, Lord Goddard CJ stated the standard of the test in order to help decide whether there was obstruction caused to the police officer. He said “‘Obstructing’ means, for this purpose, making it more difficult for the police to carry out their duties.” Whether particular conduct amounts to willful obstruction of an officer in the due execution of this duty is always a matter of fact and degree. It is important to look at all the circumstances of each case, including what the person has done and how it is done, what the officer is doing, and the effect of what the person had done on what the officer is doing…

(2)   However, the above test does not intend to include conduct which may cause mere inconvenience to the officer or require him to expend only trifling additional effort.  On the other hand, I do not think it is necessary for the prosecution to prove that the conduct in question makes the officer’s work substantially more difficult. This is to set too high a standard and if such test is applied too strictly, it may hamper the work of the police.  Such a test is neither appropriate nor necessary…”

42.The Respondent has set out in detail in its written submission the actions of the police and the appellant as shown in the evidence, and the effect the latter had on the former:

“What the police was doing:

87. At the material time :-

(1) Demonstrators created a blockade on parts of Lung Wo Road, and there were a lot of demonstrators occupying other parts of Lung Wo Road resulting in a blockade of traffic. Some of the demonstrators were on the pavement while other demonstrators were on the thoroughfare, and there were demonstrators who were moving around.

(2) Police officers advanced by means of a check line along Lung Wo Road with the purpose of restoring “traffic” and “order”.

(3) During the time when the police were proceeding along Lung Wo Road, they gave constant warnings to demonstrators at the scene through amplifiers, pointing out that they were participating in an “unlawful assembly”. They instructed the demonstrators to leave immediately or else the police would use reasonable force.

What and how the appellant conducted her actions:

88. The appellant was sitting on the pavement of the westbound lane of Lung Wo Road, which was directly adjacent to the Lung Wo Road that the police check line facing Wanchai was to advance towards.

89. …

(1) At the material time, the appellant did not indicate to the police that she was demonstrating or exercising her right to freedom of speech or why or for what purpose she did so.

(2) The appellant only mentioned peaceful demonstration after she was arrested but did not say why or for what purpose she did so.

90. When the check line facing Wanchai reached the (pave)ment off Central Barracks, at the junction of Lung Wo Road with Tim Wa Avenue, the appellant was sitting alone on the pavement at the location.

91. The location where the appellant was sitting was one towards which the check line of the police facing Wanchai had to proceed.

92. Clips from exhibit D3 showed that several police officers from the check line facing Wanchai had tried to talked to and warned the appellant to leave many times.

93. The appellant did not respond, did not do anything and refused to leave.

94. Then, two officers in the check line facing Wanchai, PW1 and PW3 had to remove the appellant together.

The effect of the appellant’s action on the police action

95. Although the appellant did not struggle nor get hold of anything when she was removed, she completely relaxed herself, refused to walk on her own and was not willing to follow and walk with PW 1 and PW3.

96. PW1 and PW3 got hold of the appellant, changed direction and walked a few steps before another two officers came up to assist. Then, 4 officers moved the appellant together.

97. PW1 pointed out the appellant relaxed herself completely in such a way that she might hurt her own self. If PW1 and PW3 were not strong enough, it might cause all three of them to fall down, to trip, and it would cause even greater injury to the appellant.

98. From the clip of P1:

(1) Before the appellant was moved, the check line facing Wanchai was approaching Wanchai direction outside Central Barracks.

(2) After the appellant was moved, the check line facing Wanchai left the area of Tamar Park outside Central Barracks and off the Office of the Chief Executive, and proceeded in the direction of Wanchai.

99. At the material time, the actions of the appellant had the following negative effect on PW1 and PW3, two officers who were in the check line facing Wanchai direction:

(1) Obstruct PW 1 and PW3 in the due execution of, or the continued due execution of the duties of police officers or of the police to prevent breach of the peace or to deal with criminal or illegal acts…etc., legal duties;

(2) Obstruct PW1 and PW3 in removing the appellant;

(3) Highly likely to cause injury to PW1 or PW3.”

43.According to the standard laid down in Tam Lap Fai, the prosecution does not need to prove that the conduct in question makes the officer’s work substantially more difficult because that standard is too high.

44.In dealing with Ground of Appeal 1, I have already pointed out that the police measures in “restoring traffic and order on Lung Wo Road” included the pavement area and was not limited to the thoroughfare.

45.Having considered all the circumstances of the case, I find, in both fact and degree, that appellant’s action, undoubtedly, had made the due execution of the two police officers’ legal duties more difficult, and her conduct caused more than mere inconvenience to the officers or require them to expend only trifling additional effort.

46.Furthermore, even if the appellant were participating in a peaceful assembly, the police officers were in due execution of their duties, the appellant had also unlawfully obstructed them in their due execution of their duties, requiring them to remove her. 

47.This ground of appeal is not substantiated.

Ground of Appeal (3): The Magistrate had wrongfully found that the appellant’s intention was to wilfully obstruct police officers in the due execution of their duty.

48.Mr. Shek submitted that the Magistrate found the appellant “deliberately” relaxed herself completely with the “purpose” of requiring the police to remove her. At that time, the appellant “consciously and knowingly” refused to respond, completely relaxed herself and just raised her hands high, requiring the police to remove her, the “purpose” was obviously making it more difficult for the police to carry out their duty.  The Magistrate had overlooked that the prosecution had to prove that the appellant did not have any reasonable excuse.  He wrongfully ignored that the appellant’s participation in a peaceful assembly was a reasonable excuse and in the circumstance that the two police officers did not warn the appellant, it was a reasonable excuse for the appellant to refuse to cooperate.

49.Mr. Shek referred to Tam Lap-Fai and HKSAR v Leung Chun Wai Sunny[16], to point out that “deliberate” not only refers to “intentional”, but also includes the element of “without lawful excuse”.  Mr. Shek supported his point by referring to Lewis v Cox[17], Rice v Connolly[18] and Yeung May-Wan. 

50.Mr. Shek said that the actions of the appellant would not have contravened section 17A(3)(a) of the Public Order Ordinance on taking part in an unauthorized assembly, because she had not obstructed other road users unreasonably and this met the requirement of reasonable excuse. If the appellant’s peaceful sit-in could amount to a reasonable excuse under the Public Order Ordinance but it is not applicable in respect of the charge of “obstructing a police officer”, then this would enable “obstructing a police” to become an incursion into the right to peaceful assembly.

51.Mr. Shek submitted that it was a lawful excuse for the appellant to refuse to cooperate in the circumstances that she was not warned by the police.  (The appellant relied on the analysis in Christie & Another v Leachinsky[19] that was adopted in Yeung May-Wan.)

The Respondent’s Reply

52.The Respondent submitted that if a person “deliberately” carried out an act which really made it more difficult for a police officer to carry out his/her duties, this person was still “deliberately” obstructing the police officer in the due execution of his/her duties notwithstanding that that person might not have targeted his/her action on the police officer carrying out his/her duties, or that he/she might not have a malicious or hostile intent towards the police officer. (The Respondent refers to Lewis v Cox.)

53.The Respondent reiterated that the appellant must have known and understood the warnings given by the police constantly through amplifiers.

54.In this case, there was no evidence to show that the appellant was participating in a peaceful assembly.  Even if the appellant was exercising her right to peaceful protest, etc., she could not have had any reasonable excuse to obstruct the two police officers in executing their duties.

The Court’s Consideration

55.As Mr. Shek has submitted under Grounds of Appeal (1) and (2), the appellant emphasized under this Ground of Appeal that she was participating in a peaceful assembly.  I have explicitly pointed out that there was no evidence in this case to show that the appellant was participating in a peaceful assembly, and that the police had reasonable grounds to believe that the appellant was a participant of an unlawful assembly who refused to leave after she heard the police warnings given at the time.

56.I agree that “deliberate” includes “intentional” and “without lawful excuse”. The Magistrate had failed to point out that the action of the appellant lacked any lawful excuse.

57.I must point out that the facts of this case are immensely different from the Yeung May-Wan case.  In Yeung May-Wan, the defendant held a sit-in protest on the pavement, she was charged with causing nuisance in a public place, which is very different from the charge and nature in this case.

58.Although the two police officers did not give the appellant any further warning, the appellant must have heard, known and understood the warnings given by the police constantly through the amplifiers.  The appellant did not tell the police that she was participating in a peaceful assembly.  After she had known that the police requested her to leave, she completely relaxed herself requiring the police to remove her.  I do not accept that she had a reasonable excuse.

59.This ground of appeal is not substantiated.

Conclusion

60.For the reasons set out above, there was nothing unsafe about the conviction and I dismiss the appellant’s appeal against conviction. 

Randy Shek and Billy Li, instructed by Vidler & Co., for the appellant

Ned Lai, Acting Senior Assistant Director of Public Prosecutions of the Department of Justice, for the HKSAR

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