HKSAR v. Chung Kin Ping

[English Translation – 英譯本]

HCMA 296/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 296 OF 2015

(ON APPEAL FROM ESCC NO. 1433 OF 2014)

_________________

_________________

______________________________

J U D G M E N T

______________________________

1.The 1^st and the 2^nd appellants were charged with one count of “unlawful assembly” (Charge 1). The 1^st and the 3^rd appellants were charged with another count of “unlawful assembly” (Charge 2). Both charges were contrary to section 18(1) and (3) of the Public Order Ordinance, Cap. 245.  The 3 appellants pleaded not guilty and were convicted after trial by Mr. Victor So, a magistrate sitting in the Eastern Magistracy. Each of the appellants was sentenced to a Community Service Order for the duration of 80 hours.

2.The 3 appellants now appeal against conviction.

A.      Facts

3.Mr. Raymond Cheng, Assistant Director of Public Prosecutions of the Department of Justice, for the respondent, stated the facts of the case which I will adopt as follows:

“Facts:

2. Each of the appellants were charged respectively that in the annual 1 July procession organized by the “Civil Human Rights Front” in the year 2013, they had on two occasions (about 2-3 minutes apart) violently charged at the cordon line set up by the police on the pedestrian crossing outside the Sogo Department Store in Causeway Bay.

3. The reason for the police in setting up a cordon line outside the Sogo Department Store was because, in past experience, the pedestrian crossing was the location where civilians would cut into the procession. Moreover, the road ahead of the procession route started to narrow into a “bottleneck”; therefore, the police closed off the crossing outside the Sogo Department Store. “Civil Human Rights Front”, the organizing party also agreed to such an arrangement.

4. At 3 pm on the day of the procession, the police set up a cordon line at the crossing with mills barriers and officers as a “human chain”, prohibiting pedestrians from crossing Hennessy Road.  The police used amplifiers and signboards to advise civilians who wanted to join the procession to start at Victoria Park, and pedestrians who wanted to cross the road were advised to do so by using the pedestrian overpass or exits of the MTR station.

5. In the original trial, the 1^st and the 2^nd appellants did not dispute that the video recording submitted in the original trial by the prosecution recorded their behaviour at the material time.  Although the 3^rd appellant did not dispute the video-recorded evidence, he disputed being identified.  He was subsequently identified by relevant police officer/s in court.

6. All three appellants did not give evidence in the original trial.  From the cross-examination of witnesses by counsel, the defence case was that at the material time, the cordoning off of the pedestrian crossing outside the Sogo Department Store by the police was a disproportionate restriction of the appellants’ freedoms of speech, assembly and procession. 

First count of “unlawful assembly”: 1^st and 2^nd appellants

7. The video recording showed that at 3.12 pm on the material day, the 1st appellant was at the pedestrian crossing outside the Sogo Department Store, he shouted, “Police open up” repeatedly using a mini amplifier, he also chanted, “1, 2, 3, charge” and shouted, “you break through”.  Then the 1st appellant and 20-odd persons at the scene charged the police cordon line together.  The 1st appellant later pulled the mills barrier and the green nylon tape tied on the mills barrier with his hand(s).  Another officer at the scene tried to stop him and gave him verbal advice, but it was ignored by the 1st appellant.  Later, the 1^st and the 2^nd appellants, together with other persons, pulled the mills barrier and entered into a tug of war with the police.  The 2^nd appellant also shouted at the police to open up at the time, not long after, the 1st appellant said, “I will go to another spot and charge.” 

Second count of “unlawful assembly”: 1^st and 3^rd appellant

8. The 1st appellant immediately walked and stood on the right, he pulled and tugged the mills barrier with other persons.  At around 3.15 pm, the mills barrier was pulled up and removed by persons at the scene.  Another 2 officers at the scene were able to identify the 3^rd appellant as one of the persons who had pulled and tugged the mills barrier in front of them.  One of the officers had repeatedly lifted the 3^rd appellant’s fingers to stop him from pulling the mills barrier.  Another officer had been in a “tug of war” face to face with the 3^rd appellant, pulling and tugging.  Both officers also testified that the 3^rd appellant had chanted “1, 2, 3”.

B.      Application to withhold disclosure of parts of documents on the ground of public interest immunity and application for permanent stay of proceedings

4.The respondent detailed the course of the applications in his written submission.

“11. Concerning the defence argument that the cordoning off of the pedestrian crossing outside the Sogo Department Store by the police was a disproportionate restriction of the appellants’ freedoms of speech, assembly and procession, the defence requested the prosecution disclose three documents prepared by the police with regard to the management of the procession mentioned in PW11, CIP TONG See-man’s testimony, i.e. “Island Operation Briefing”, “Wanchai District Operation Briefing” and “Operation Review”.

12. The prosecution applied to withhold disclosure of the documents because the contents therein concerned police deployment, strategies and baseline, as well as the internal review of the police after the incident, which were irrelevant to the case.  The contents of the documents also should not be disclosed on the ground of public interest immunity, as disclosure of such would affect police deployment and strategies for similar events in the future.

13. The magistrate opined that as the testimony of the prosecution witnesses related to the reason for the police setting up the cordon line, those three documents which concerned the deployment of police for procession management should be relevant to the case. Also, as the prosecution failed to state expressly which parts of the three documents might affect the police, the magistrate opined that the prosecution could not withhold disclosure of the three documents on the grounds of public interest immunity (first ruling).

14. The prosecution later renewed their application to the magistrate to withhold disclosure of the redacted contents of the three documents after obtaining a “public interest immunity certificate” (“certificate”) issued by the Chief Secretary. The prosecution submitted to the court the “certificate”, the three documents in the original unredacted version, the three documents in the redacted version and a document explaining how the redacted contents related to the public interest (“justifications”).  The defence were only given the redacted version.

15. The court ruled that, having balanced the interests of all parties, it agreed that the redacted information related to classified, sensitive and even third-party information etc.  In light of the prosecution having submitted further and better grounds, the court granted the prosecution’s application to withhold disclosure of redacted contents in the three documents.  The court also ruled that the defence could not cross-examine the witnesses on the redacted contents (second ruling).

16. The defence continued their cross-examination of Chief Inspector Tong. However, they subsequently applied for a permanent stay of proceedings, on the ground that the appellants could not have a fair trial because the defence were unable to establish an effective defence due to the restriction on their cross-examination by the court’s ruling.  The magistrate pointed out that the appellants’ defence was all about whether the setting up of the cordon line on the material day was proportionate, the defence could still cross-examine Chief Inspector Tong, regarding the reasons for and decision on the setting up of the cordon line, as she was responsible for making decisions on the material day. The contents concerning the police deployment before the incident and the review afterwards had no direct relevance to the case. Therefore the application for stay of proceedings was dismissed.

C.      The magistrate’s verdict

5.The magistrate directed[1] himself and analysed the evidence[2].  He was satisfied with and accepted the testimonies of PW1 to PW20.  He then made the following findings of fact:

“Charge 1

54. On the facts, I am sure that the 1^st and the 2^nd defendants were in front of the mills barrier and PW5, 1^st defendant pulled the green tape tied on the mills barrier with his hand(s). The two of them then pulled and tugged the mills barrier.

55. The defence said the prosecution was mistaken that it was the hand of the 2^nd defendant that was grabbing the mills barrier and the 2^nd defendant was only fencing off the mills barrier that was pressing toward him with his hand. Thus, in the absence of any testimony from any witness, there was no evidence against the 2^nd defendant.

56. In fact, apart from the video clip, PW5 had given evidence against the 2^nd defendant. He said in evidence that the 2^nd defendant pulled and tugged the mills barrier. From the video clip, it could be seen that the 2^nd defendant did grab the mills barrier and from the clip, between 3:12:49 to 3:13:23, he stayed in that position, during which time the police officer(s) kept shouting [“]Don’t push[”] because the vehicular road was right behind the police officer(s). I am satisfied that at the time, the 2^nd defendant intended to charge the police cordon line together with the 1^st defendant and other persons.

57. I am sure that at the time, the 1^st and the 2^nd defendants were together with more than 3 persons, and their common goal was to break through the cordon line by pulling the mills barrier away.

Charge 2

58. On the facts, I am satisfied that the identification of the 3^rd defendant by PW9 and PW10 at the material time was safe. They had ample opportunity to look at the appearance of the 3^rd defendant face-to-face at a close distance, moreover, PW9 touched the defendant’s hand.

59. Apart from that, the 3^rd defendant could be clearly seen in the video clip. He wore a grey hat, a white T-shirt with letters printed on the chest and carried a black rucksack. I am sure that the person who appeared in the video clip is the 3^rd defendant before me.

60. Undoubtedly, the 1^st defendant, the 3^rd defendant and other persons pulled and tugged the mills barrier with their hands as if in a tug of war, and their common intention must be to break through the police cordon.

61. From the factual findings of each of the charges above, I find that such conduct involved violence with the intention to break through the police cordon line. In the end, they succeeded in removing the mills barrier. Such conduct was clearly a breach of the peace. The incident occurred in the busy area of Causeway Bay, it was not difficult to imagine that there were other persons including reporters who were not participating in the procession present, such violent charging (at the police cordon) would definitely cause them to fear that there would a breach of the peace.

62. In submissions, the defence said that the setting up of the cordon line was disproportionate. Although the court had indicated in To Kwan Hang that even if the cordon line were set up illegally, that would not have meant that the defendant(s) could charge violently at it, (the defence believed) that the Court of First Instance had reinterpreted this principle in HKSAR v SIU Mun-Yee stating that it is a finding of fact whether it was proportionate.

63. I agreed with the prosecution’s submission regarding this subject and I am satisfied that the Court of First Instance did not reinterpret previous principles. In fact, that appellant in that case faced charges different from the charges in this case. One of the elements of the charge that appellant faced involved whether the officer was in the due execution of his/her duty, therefore the lawfulness and the proportionality of the action would affect the element of “execution of duty” directly. As the Court of First Instance found that the magistrate concluded the cordon line was proportionate in the absence of (supporting) evidence, it was a factual finding without basis, therefore the conviction was unsafe and the appeal was allowed.

64. However, in relation to the charge in the present case, the prosecution only needed to prove the (following) elements of the charge: 1) the defendant assembled with more than three persons; 2) committed a breach of the peace; and 3) which was intended or likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace. The elements are different from those in SIU Mun-Yee. Therefore, the proportionality of the cordon line is irrelevant to the elements of the charge.

65. Having considered the evidence before me, it is my opinion that the prosecution had adduced sufficient (evidence) to show that the setting up of the police cordon line was proportionate. First of all, from past experience, the pedestrian crossing was a popular spot for people to cut into the procession. If people were allowed to cut in wherever they wished, it would cause chaos or would upset people who were in the procession at Hennessy Road heading west; therefore the crossing at Sogo was cordoned off. Even where it was cordoned off, pedestrians could still cross Hennessy Road using the pedestrian overpass at Percival Street or Sugar Street. People who wanted to join the procession could start from Victoria Park. Such arrangement did not prevent any person from using the pedestrian overpass to cross Hennessy Road and could also accommodate people who wanted to cut in.

66. The defence submitted that the police decided to closed off the pedestrian crossing at Sogo without considering other options e.g. tidal crowd management control. When cross-examining PW3, the defence played a video clip downloaded from the internet and suggested that a 20-second traffic signal was sufficient to allow a large number of pedestrians to cross through.

67. In my opinion, as the procession was using the westbound carriageway at the time, the circumstances were different from normal days and therefore not suitable for comparison, because the westbound carriageway was already packed with participants of the procession at the material time.

68. Regarding the closing of the exit of the Causeway Bay MTR station, according to PW11, the MTR needed to consider the design of the station, passenger flow control and make a decision on its own. Furthermore, the police had made news announcements to inform the public about pedestrian crossing arrangements at Sogo that day. There were repeated broadcasts at the scene to advise civilians or participants of the procession to use other routes.

69. I am of the opinion that the arrangements made by the police at the Sogo crossing on the material day were proportionate and reasonable; it did not impose any disproportionate restriction on any person’s freedom of expression or to participate in a procession.

70. The 3^rd defendant referred to several items of literature which the Court of Final Appeal had considered in previous cases. I would emphasize that the question of proportionality was about the actual measures taken by the police at the scene. Assuming the operational order was unreasonable in principle, if the actual measure taken at the scene was reasonable, that would not have deprived persons of the freedom of expression and vice versa. Therefore, having considered these references, I do not find the measures of the police that day unreasonable.

6.The magistrate found that the prosecution had proved their case beyond all reasonable doubt and convicted the three appellants.

D. Special Counsel

7.At the first hearing of this appeal on 18 March 2016, the appellants apply to this court for the appointment of a “special counsel” in order to assist the court to deal with the matter of the prosecution’s successful application to withhold parts of the three documents on the ground of “public interest immunity”. The procedure would be similar to the one adopted by Mr. Justice Hartmann having considered R v H[3] when he heard PV v Director of Immigration[4]. At that time, I granted the appellants’ application and adjourned the case for both parties to agree on the “special counsel” to be appointed and his or her duties in this case. I had not read the deleted parts at that time.

8.Almost a year had passed and the court found out that both parties could not come to a consensus on the “special counsel” to be appointed and the duties of such “special counsel”. Therefore the court arranged for both parties to attend a hearing on 27 March 2017.

9.At that hearing, the respondent sought this court’s reconsideration on the need of a “special counsel”.  Having heard submissions from both parties, especially having reconsidered the 7 principles laid down in R v H[5], and having read the three unredacted documents, which were not complicated in nature, in full, the court ruled on 30 March 2017 that the court did not need the assistance of a “special counsel”.

10.I refused the application by the appellants to allow their legal representatives to read the unredacted documents on an undertaking.

11.It is my view that the said ruling caused no unfairness to the appellants.

12.Later, the court heard the grounds for “public interest immunity” submitted by the respondent on withholding disclosure in chambers.

E.      Grounds of appeal

E(1)   The 1^st  appellant

13.The 1^st appellant was originally represented by counsel, Mr. Douglas Kwok, who also represented the 2^nd appellant.  Mr. Kwok submitted 5 perfected grounds of appeal on 16 October 2015, one of which only related to the 2^nd appellant. The 1^st appellant subsequently became unrepresented. Having heard the submissions by Mr. Kwok and Mr. Randy Shek, counsel representing the 3^rd appellant, he indicated that he would adopt the submissions of the two counsel.  On the other hand, the 1^st appellant submitted that even if all the evidence had shown that he was present at the scene, the prosecution had failed to prove that he was participating in the “1 July procession”.

E(2)   The  2^nd appellant

14.The grounds of appeal put forward by Mr. Kwok on behalf of the 2^nd appellant can be summarized as follows:

(1)  The magistrate erred in finding that the 2^nd appellant pulled and tugged the mills barrier. PW5 had not mentioned that the 2^nd appellant had pulled and tugged the mills barrier.  The magistrate misquoted PW5’s testimony.  The relevant video clip showed the 2^nd appellant only used his hands to block and resist the mills barrier that was pressing toward him;

(2)  The remaining grounds of appeal related to the magistrate granting the respondent’s application not to provide the defence with the three documents prepared by the police on the management of the procession on 1 July 2013 (i.e. “Island Operation Briefing”, “Wanchai District Operation briefing” and “Operation Review”) and only provide a redacted version of the documents to them, on the ground of “public interest immunity”:

(i)  The appellant submitted that the magistrate had ordered the prosecution to disclose the above 3 documents to the defence on 3 November 2014, and the prosecution had not applied for any review within 14 days.  Rather, on 26 January 2015, the magistrate suggested the prosecution “renew their application” on withholding disclosure and subsequently granted their application.  The magistrate had erred in law and this was unfair to the appellant.

(ii)  The magistrate erred in considering the 70 odd-page of explanation (Justification) submitted by the prosecution;

(iii)  The defence was unable to establish an effective defence (i.e. whether the police deployment was disproportionate) as the defence was unable to cross- examine the witnesses on the redacted contents because of “public interest immunity”. 

(iv)  The magistrate erred in dismissing the defence’s application for a “stay of proceedings” resulting in an unfair trial to the defence.

E(3)   The 3^rd appellant

15.The grounds of appeal submitted by Mr. Randy Shek, counsel for the 3^rd defendant, were the same as those of the 2^nd appellant except the part relating to whether the 2^nd defendant had pulled and tugged the mills barrier.

F. Grounds of the appellants

16.The appellants’ submissions in relation to the magistrate’s granting of the prosecution’s application to withhold full disclosure due to “public interest immunity” and only provide the defence with a redacted version are summarized as follows:

17.The appellants contended that the police enforcement of the law involved political considerations (e.g. against particular political organizations, and the use of mills barriers had political implications), and there was an illegitimate aim to infringe the freedoms of assembly and procession (of individuals), and their use of command and control policing instead of community policing in managing assemblies and processions was a disproportionate infringement of the freedoms of assembly and procession (of individuals).

18.The three documents regarding the police management of the procession on 1 July 2013 are relevant to this case.  Full disclosure of those documents would not harm public interest.  The defence had to know the full content of those three documents before they could cross-examine the witness(es) to show that the sealing off of the pedestrian crossing outside the Sogo Department Store was a disproportionate restriction of the 3 appellants’ freedoms of assembly, procession and expression. The police should not have treated participants of public meetings as criminals; they should have adopted an honest, open and cooperative approach instead.

19.The appellants relied on the analysis made in “Adapting to Protest – Nurturing the British Model of Policing” issued on 25 November 2009 by Her Majesty’s Inspectorate of Constabulary on large-scale demonstrations, and submitted the “logistics chart” in Chapter 7.  The appellants submitted that if the prosecution did not withhold full disclosure, they would be able to make comparisons to see if the police measures were proportionate.  If the evidence showed that the police had imposed disproportioned restrictions, then the conduct of the 3 appellants was only of a “self-help” nature and did not constitute the offence of unlawful assembly. The appellants submitted the cases of To Kwan Hang[6], Au Kwok Kuen[7], Wong Yuk Man[8] and Leung Kwok Wah[9], to support their argument.

20.The appellants also submitted that the magistrate’s handling of (the application of) withholding disclosure on the ground of public interest immunity was unfair to the appellants.

21.The appellants mainly argued that the prosecution had submitted the grounds for their application to withhold full disclosure on 3 November 2014: the 3 documents were irrelevant to this case, and that full disclosure of those documents should be withheld on the ground of public interest immunity as the documents related to police strategies and deployment, such disclosure would seriously affect the police strategies in similar future events[10].

22.At that time, the prosecution had submitted that if the court found those documents relevant to the case and should be disclosed, the prosecution would discuss with the defence and provide a redacted version in the hope that they would not need to submit to the court a “certificate”[11] signed by the Chief Secretary.

23.The appellants argued that the prosecution should have prepared for both outcomes. If the court ruled that the documents were relevant to the case and that both parties could not agree on the redacted version, the prosecution should apply to the magistrate immediately for an adjournment for obtaining the certificate.

24.The magistrate ruled on that day that the 3 documents were relevant to the case and dismissed the prosecution’s application to withhold disclosure on the ground of “public interest immunity”[12].

25.An application for an adjournment for obtaining the certificate was only made after the prosecution had failed to reach an agreement with the defence on the redacted parts.

26.Although the prosecution submitted a relevant certificate, the grounds stated therein were identical to those submitted on the first occasion on 3 November 2014.   The magistrate did not conduct the review within the prescribed 14-day period.  Moreover, it did not conform with legal principles for the magistrate to reverse his original decision.  Chu To Chung[13] stated that the prosecution must establish that the additional evidence (that is the relevant certificate) could not have been obtained at the first ruling with reasonable diligence.  The appellants argued that the prosecution should have prepared to apply to the magistrate for an adjournment to obtainthe certificate.  As the prosecution had failed to do so, they could not say that they were not able to obtain the certificate with reasonable diligence at the first ruling when they submitted the certificate and asked for the magistrate’s reconsideration.

27.Furthermore, the defence had no idea who prepared the 70 odd-page “justification” that was submitted to the magistrate and the magistrate should not have regarded the “justification” as a “submission”.

28.The trial was unfair to the appellants as the magistrate erred in granting the prosecution’s application to withhold full disclosure.  The magistrate wrongfully dismissed the defence application for a stay of proceedings. 

29.Regarding the 2^nd appellant, it was submitted that he had not pulled and tugged the mills barrier, his actions were simply to push away the mills barrier that was pressing toward him.  The magistrate had misunderstood the evidence; therefore, the conviction was unsafe.    Furthermore, even if there was pulling and tugging of the mills barriers, his conduct (and that of other appellants who had pulled and tugged the mills barriers) was merely “mildly violent”, (as in Wong Yuk Man), a “momentary wild response” and of a “self-help” nature (as in Leung Kwok Wah), and therefore did not amount to a crime.

30.The 1^st appellant reiterated that the certificate did not mention anything about the 70 odd-page “justification”; the prosecution had not adduced enough evidence to prove he was participating in the “1 July Procession”.

G.      The respondent’s reply

31.The submissions made for the respondent by Miss Anna Lai SC, Deputy Director of Public Prosecutions and Mr. Raymond Cheng, Acting Assistant Director of Public Prosecutions of the Department of Justice, can be summarized as follows:

32.The magistrate had expressly indicated in the first ruling relating to the disclosure of documents that it was a “decision at the present stage”[14], and not a final decision.  Subsequently the prosecution submitted the relevant certificate that could not have been obtained through reasonable effort before/at the time of the first ruling (thereby fulfilling the first requirement in Chu To Chung. The prosecution had also fulfilled the remaining two requirements namely that submitting the certificate before the first ruling was likely to affect the ruling on the subject matter and that the certificate appeared credible on its face).

33.The prosecution reiterated that at the original trial, the legal representative for the prosecution had suggested three steps to the magistrate.  Firstly, the magistrate should rule if those 3 documents were relevant to the case, thereby subject to disclosure.  If the court ruled that they were relevant and subject to disclosure, the prosecution would redact those parts that they considered concerned the public interest.  They would supply the defence with the redacted copy to see if they could reach an agreement.  The prosecution would only apply for a certificate from the Chief Secretary if an agreement could not be reached.  It appeared that the magistrate’s error was to have made an initial decision on the area of “public interest” in his first ruling.  Nevertheless, the magistrate reconsidered the application only after he had the relevant certificate and a set of justifications before him.

34.The magistrate had stated expressly at trial that the set of justifications had “pointed out clearly the ground for each and every redaction they made”, therefore that set of “justifications” was deemed a set of written submissions[15].

35.The prosecution’s stance was that the redacted parts were irrelevant to the case.  The prosecution was not relying on those 3 documents.  The parts that were being withheld were irrelevant to the defence of the appellants.  The prosecution did not need to disclose parts that were irrelevant to the case.

36.The respondent emphasized specifically that according to the testimony of PW11, Chief Inspector Tong Sze-man, the sealing off of the pedestrian crossing outside Sogo was suggested by the representative of Civil Human Rights Front (“CHRF”), who was the organizer of that procession.  The police agreed with “CHRF’s” suggestions, especially the point that allowing other road users using the pedestrian crossing outside Sogo to cross the road or “jump the queue” at the beginning of the procession when it was most crowded would upset participants of the procession[16].

37.The respondent cited Leung Kwok Wah and pointed out that even if the cordon line set up by the police was disproportionate and illegal, charging the cordon line violently was still a of breach of the peace.

38.Regarding whether the 2^nd appellant had pushed and tugged the mills barriers, the respondent quoted from the transcript[17], saying that PW5 had generally pointed out the mills barrier that the 1^st and the 2^nd appellants had pulled and tugged from the screen; the defence had not cross-examined PW5 regarding this part of the testimony.  Having considered all the evidence before him, the magistrate reached the only reasonable inference that the 2^nd appellant, together with other people, violently charged at the police cordon line. There was nothing unsafe about this finding.

H.      The court’s consideration

39.One of the important issues this court needs to consider in this case is whether the redacted parts in those three documents were relevant to the case, and whether the prosecution had a duty to disclose them.  If the documents were relevant to the case, the court would need to consider whether the prosecution’s application to withhold disclosure on the ground of public interest immunity was well justified, and that having balanced (1) withholding disclosure on the ground of public interest immunity against (2), each appellant’s entitlement to a fair trial in a criminal case (by referring to the seven principles in R v H and the judgment of R v Keane[18]), whether withholding disclosure would cause any injustice to the appellants.

40.I have read the 3 unredacted documents, considered the certificate issued by the Chief Secretary, and a set of “justification” submitted to the magistrate (i.e. the document setting out in respect of each paragraph or part redacted the reason for withholding in relation to the specific ground of public interest listed in the certificate), I agree with the submission from the respondent that the redacted parts were irrelevant to this case.  The redacted parts did not strengthen the defence case or weaken the prosecution case (Lee Ming Tee[19]), the prosecution were not obliged to disclose the redacted parts to the defence.  Furthermore, even if the redacted parts were relevant to the defence case, having balanced the pros and cons on both sides, I accepted the contents of the “certificate” and ruled that disclosure of those contents should be withheld on the ground of public interest.  The final decision of the magistrate was correct. 

41.I agree with the contention in the respondent’s submissions that the issue of whether the police cordon line at the time was proportionate or not was not a matter that this court needs to consider; and the decision of the magistrate in this respect was correct.

42.Each of the appellants was charged with unlawful assembly, the magistrate had correctly stated the ingredients of the charge in his statement of findings:

“64. Regarding the ingredients of the charge in this case, the prosecution only needs to prove: 1) the defendant assembled with 3 or more persons; 2) committed a breach of the peace; 3) intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of peace or will by such conduct provoke other persons to conduct a breach of the peace...”

43.When the prosecution could successfully prove the above elements of the charge, even if each of the appellants originally participated in a lawful procession, or, as alleged by the 1^st appellant, he was not participating in the “1 July procession”, they would still be guilty of the charge.

44.Nevertheless, the magistrate had pointed out the reasons he found the police cordon line to be proportionate, I agree with him.

45.I have considered the detailed analysis by the magistrate and agree with his findings.  It was obvious that the 1^st and the 3^rd appellants had pulled and tugged the mills barriers with the intent to break through the police cordon line.  Having considered the surrounding circumstances at the time, their conduct constituted the elements of unlawful assembly and therefore they had committed the offence.

46.I agree with the respondent’s contentions in their submission regarding whether the 2^nd appellant had “pulled and tugged” mills barriers.  Furthermore, I find that whether the 2^nd appellant had pulled and tugged mills barriers was not the main issue in the present case.  The main issue was that in the circumstances at the material time, it was obvious that the 2^nd appellant was acting with others with intent to charge at the police cordon line, which constituted the elements of the crime.  I understand the point from the appellant that police officers were not injured as they were in To Kwan Hang.  However, the fact that police officers suffered no injury does not mean that the charge of unlawful assembly could not be established.  The court must consider all the circumstances at the material time.

47.I do not agree that their conduct was only of a “self-help” nature.  Their behaviour at the material times was not “slightly violent” nor was it a “momentary wild response”[20], and it was not reasonably exercising the right of procession.

48.I have considered the duties of police force.  Section 10 of the Police Force Ordinance states that the duties of police force include:

a)  preserving the public peace;

b)  preventing and detecting crimes and offences;

c)  preventing injury to life and property;

…

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

…

g)  preserving order in public places and places of public resort, at public meetings and in assemblies for public amusement, for which purpose, any police officer on duty shall have free admission to all such places, meetings and assemblies while open to any of the public;

…

49.The police have a duty to take lawful and appropriate measures to ensure lawful assemblies and processions are conducted in a peaceful manner.  The police have to consider public safety, public order and to protect the rights and freedom of others (including participants of processions and assemblies).

50.I completely agree with the magistrate’s finding that the measures taken by the police were proportionate, not to mention that it was CHRF that suggested the sealing off of the Sogo pedestrian crossing, and the police followed CHRF’s suggestion after consideration.  I refuse to accept the appellants’ claim that the police sealing off of the Sogo pedestrian crossing was unlawful.

51.The appellants submitted “community policing”, “Adapting to Protest - Nurturing the British Model of Policing” of Britain.  I find that the literature was not about legal principles and was of no assistance to this court.  I agree completely with the opinion of Mr. Justice Albert Wong on this kind of literature in Leung Hiu Yeung[21].

52.I have considered the course of the application to withhold disclosure on the ground of public interest immunity before the trial magistrate and find that there was no unfairness to any of the appellants in the trial.

53.The prosecution did not have prior knowledge of the defence request for disclosure of those 3 documents (the prosecution had no intention to rely on those documents).  Once the prosecution was aware of the request, they asked the magistrate to first consider if those documents were relevant to the case, since there was no need to deal with the question of disclosure if they were irrelevant.  If they were relevant, the prosecution would seek to reach an agreement with the defence to redact the parts that the prosecution considered to be related to the public interest, only when both parties could not reach an agreement would the prosecution seek the Chief Secretary to issue a certificate.  There was nothing wrong with the prosecution’s management of the case as they only tried to avoid adjourning the case.  The magistrate did not need to mention the aspect of “public interest” in his first ruling.  Nevertheless, the magistrate, in his ruling, pointed out that “at the present stage”, he considered the grounds submitted by the prosecution on the aspect of “public interest immunity” too general.  Having considered the circumstances at that time, it is my opinion that the magistrate was only saying that at that stage, it was too general for the prosecution to rely on the ground of “public interest immunity”. The fact that he granted the application by the prosecution to adjourn the case for the relevant certificate clearly showed that he had not made his “final decision”.

54.In light of the fact that the magistrate said that he had not made a final decision at that time[22], there was no need to review within 14 days.  Before the second ruling, there were new developments and additional evidence (“certificate” and “justification” to explain each deleted item and paragraph) before the magistrate, and there was nothing wrong in the magistrate reconsidering and subsequently ruling that disclosure of the redacted parts would be withheld from the defence.  I do not agree that the principles in Chu To Chung were applicable in this case.  Even if the principles were applicable, the prosecution had fulfilled the 3 conditions stated in that case:

(1)  the additional evidence (i.e. certificate) could not have been obtained by the prosecution with reasonable diligence at the first ruling;

(2)  it would have had a significant effect on the first ruling if it was submitted at that stage;

(3)   it was prima face credible.

55.There was no injustice to each of the appellants in the trial.  The decision of the magistrate to dismiss the application for stay of proceedings was appropriate.

56.For the above reasons, there was nothing unsafe about the convictions.

57.I dismiss each of the appellants’ appeal against conviction.

1^st Appellant, unrepresented, acting in person.

Douglas Kwok, instructed by Messrs Tang Paul C. K. & Chiu, assigned by the Director of Legal Aid, for the 2^nd Appellant

Randy Shek, instructed by Messrs Ho Tse Wai & Partners, assigned by the Director of Legal Aid, for the 3^rd Appellant

Anna Lai SC, Deputy Director of Public Prosecutions and Raymond Cheng Assistant Director of Public Prosecutions (Acting), of the
Department of Justice, for the Respondent

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