HKSAR v. Cheung Kwai Choi and Another
Read the full judgment text of HCMA 438/2015 on BabelCite. This High Court CFI judgment was delivered on 10 October 2018.
1. This appeal originally concerned two cases in the Magistrate’s Court, namely ESCC 3350/2014 (HCMA 617/2015) and ESCC 3406/2014 (HCMA 438/2015). With consent from all parties, the two cases were heard together.
Cited by 2 cases · Cites 12 cases
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HCMA 438 & 617/2015 [2018] HKCFI 2243 HCMA 438/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 438 OF 2015 (ON APPEAL FROM ESCC 3406 OF 2014) _______________
AND HCMA 617/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 617 OF 2015 (ON APPEAL FROM ESCC 3350 OF 2014)
________________________ J U D G M E N T ________________________ 1.This appeal originally concerned two cases in the Magistrate’s Court, namely ESCC 3350/2014 (HCMA 617/2015) and ESCC 3406/2014 (HCMA 438/2015). With consent from all parties, the two cases were heard together. 2.There were three defendants in the case of ESCC 3350/2014 (HCMA 617/2015), they were Yip Po‑lam (D1 at trial, hereinafter called “D1”), Cheung Hon‑yin (D2 at trial, hereinafter called “D2”) and Wong Kan‑yuen (D3 at trial, hereinafter called “D3”). 3.There were two defendants in the case of ESCC 3406/2014 (HCMA 438/2015), they were Cheung Kwai‑choi (D1 at trial, hereinafter called “D4”) and Chow Nok‑hang (D2 at trial, hereinafter called “D5”). 4.Each of these appellants was charged with the offence of contravening an Administrative Instruction (“section 11”) issued under section 8(3) of the Legislative Council (Powers and Privileges) Ordinance(“LCPPO”), namely failing to “behave in an orderly manner” within the precincts of the Chamber of the Legislative Council (“LegCo”)[1]. They pleaded not guilty and were all convicted after trial by the Magistrates.[2] They now appeal against the convictions. 5.D4 and D5 were fined. D1 was sentenced to an imprisonment term of two weeks, D2 a term of one week and D3 a term of three weeks. D1 ‑ D3 also appeal against the sentence. 6.At the hearing, D2 was absent allegedly due to health reason. As all parties agreed, and as a matter of expediency, it was ordered that the case of D2 be severed and heard separately. It has not yet been heard at the time of this judgment. Prosecution Case 7.The two cases stemmed from two different incidents of demonstration in the precincts of the Chamber of the LegCo. The facts may be summarized as follows.[3] ESCC 3350/2014 8.In the afternoon on 6 June 2014, the Finance Committee (“FC”) of LegCo held a meeting at which the funding application for the advance works of the “North-East New Territories Development Proposal” (“NENT Proposal”) was discussed. While the meeting was held inside the LegCo Complex, a number of protesters demonstrated in the designated public activity area (“DPAA”) outside the LegCo Complex. 9.There was a lobby on G/F of the LegCo Complex (“the Lobby”). The entrance of the Lobby (ie, Public Entrance 1 or “PE1”) comprised two sets of automated glass doors, namely the “Western Doors” and the “Eastern Doors”. Members of the public (including protesters) were required to go through a registration process in order to obtain visitor’s passes for entering the LegCo Complex and the Lobby. The Lobby and PE1, as well as the DPAA outside PE1, were within the “precincts of the Chamber” as defined in the LCPPO. 10.To enhance the security of the LegCo Complex while the FC meeting was held, at about 5pm on 6 June 2014, LegCo security staff closed the Western Doors of PE1. The Eastern Doors of PE1 were guarded by security officers, with the automated operation of the doors changed to manual operation. 11.At about 5:27pm on the same day, a visitor fell on the floor while leaving the Lobby through the Eastern Doors. As a result, security officers were unable to close the Eastern Doors. At this juncture, a large group of protesters outside the LegCo Complex rushed into the Lobby through the Eastern Doors. Some protesters blocked the Eastern Doors with their bodies and prevented the doors from being closed by the security staff. At about 5:42pm, the Western Doors, which had previously been closed, were tampered with by some protesters who succeeded in opening the doors. More protesters then entered the Lobby through the Western Doors. At about 5:46pm, security staff successfully closed the Eastern Doors. However, the Western Doors continued to be blocked by the protesters who prevented the doors from being closed by the security staff. 12.Tens of protesters who had entered the Lobby without permission continued to occupy the Lobby for demonstration. They chanted slogans, displayed banners and played drums in the Lobby. Security staff guarded the escalators at the Lobby to prevent the protesters from going upstairs to the venue of the FC meeting. 13.Meanwhile, the Western Doors of PE1 continued to be blocked by the protesters despite the LegCo security officers repeatedly asked them not to obstruct the doors. At about 8:55pm, the LegCo sought assistance of the police. 14.At about 9:17pm, police officers, accompanied by the LegCo security staff, went to the Western Doors and attempted to close the doors. Their action was met with fierce resistance of the protesters who prevented the doors from being closed. A number of the LegCo security staff (including PW7, PW8, PW9 and PW15) sustained various degrees of injuries during the struggle. Some protesters then sat on the ground blocking the Western Doors. 15.At about 9:45pm, the FC meeting was adjourned. The protesters who had been blocking the Western Doors ceased obstructing the doors at about 9:57pm. However, a large number of protesters remained in the Lobby for demonstration, and refused to leave the Lobby in spite of repeated warnings given by the LegCo security staff. At about 11:35pm, the majority of the protesters began to leave the Lobby. The last batch of protesters left the Lobby after midnight. ESCC 3406/2014 16.The FC meeting for the discussion of the funding application for the NENT Proposal resumed at 3pm on 13 June 2014. While the meeting was held inside the LegCo Complex, a number of protesters demonstrated in the DPAA at the car park of the LegCo Complex. At the entrance of the car park there was a walkway which was covered with a canopy (the “Canopy”, which was at least 8 meters above ground). The Canopy was within the “precincts of the Chamber” as defined in the LCPPO. 17.At about 5:05pm on the same day, D4 went onto the Canopy and hang some strings down from the Canopy. D5 and other protesters, who were on the ground, then tied some folded banners onto the strings so that D4 could lift up the banners onto the Canopy. A number of warnings were issued by the LegCo security staff through a loudhailer to D4 and D5, who ignored the warnings and continued with their acts. A security officer approached D5 and tried to stop his act, but he insisted to tie the banners onto the strings. 18.D4 lifted up altogether four banners onto the Canopy. Between about 5:22pm and 5:54pm, he hang the four banners bearing the slogans “撤回計劃”, “寸土必爭”, “寸步不讓” and “東南西北” (each of about 8m x 2m in size) down from the Canopy. 19.At about 6:09pm, D4 climbed down from the Canopy himself. Defence Case 20.At trial of both cases, all the appellants[4] exercised their rights and elected not to testify. No defence witness was called. Findings of the Magistrates 21.In both cases, there was challenge that section 11 and the related offence were unconstitutional. There was also dispute on admissibility of some evidence (which is not a concern in this appeal) as well as on factual allegations. 22.The two cases were dealt with by different Magistrates. Both Magistrates held that section 11 and the related offence were constitutional. Further, both of them found the prosecution proved beyond reasonable doubt all the elements of the offence and found all the appellants guilty of the offence. 23.In ESCC 3350/2014, the Magistrate found D1 and D3 had performed the following acts during the incident:
Grounds of Appeal D1: Yip Po-lam 24.D1 was represented by Mr Martin Lee SC[5], Ms Linda Wong and Mr Geoffrey Yeung, the grounds put forward on behalf of D1 for the appeal against conviction are:[6]
25.Before the hearing, Mr Lee SC stated in his written submission that in the light of the Court of Final Appeal decision in HKSAR v Fong Kwok Shan,[7] he would not further advance Grounds 1 and 2 and would only pursue the other grounds. D3: Wong Kan-yuen 26.D3 was represented by Mr Randy Shek,[8] the grounds he put forward for D3 are:[9]
27.Mr Shek informed the court that he would fully adopt the submission put forward by Mr Lee SC and Mr Tam, supplementing with oral submission. D4: Cheung Kwai-choi 28.D4 was represented by Mr Jeffrey Tam and Mr Andrew Lau. The following grounds were put up on behalf of D4:[11]
29.Before the hearing, Mr Tam also stated in his written submission that in the light of HKSAR v Fong Kwok Shan,[12] he would not further advance Grounds 1 and 2 and would only pursue the other grounds. D5: Chow Nok-hang 30.D5 was represented by Mr Randy Shek,[13] who put up similar grounds for D4, as follows:[14]
31.Mr Shek also informed the court that he would adopt the submission of Mr Lee SC and Mr Tam, as appropriate, on behalf of D5, supplementing with oral submission. Discussion and Consideration The constitutional issue 32.The grounds put forward for each of the appellants include the constitutional issue: whether section 11 and the related offence are necessary and proportional. I will consider this issue first. 33.The relevant rights engaged in the present case are the rights to freedom of expression, demonstration and assembly. Such rights under the International Covenant on Civil and Political Rights (“ICCPR”) are implemented by the Hong Kong Bill of Rights Ordinance[15] (“BORO”) which enacts the Hong Kong Bill of Rights[16] (“BOR”). Articles 16 and 17 of the BOR are relevant, which respectively provide:
34.The relevant rights are also provided in Article 27 of the Basic Law:
35.The Court of Final Appeal held in Leung Kwok Hung v HKSAR[17] that there is no difference between the right of peaceful assembly guaranteed by Article 27 of the Basic Law and that provided in Article 17 of the BOR.[18] It was further held in HKSAR v Fong Kwok Shan[19] that the same applies to freedom of speech under Article 27 of the Basic Law and freedom of expression under Article 16 in the BOR. 36.Article 39 of the Basic Law provides:
37.It is well established that the “BORO” implements the “ICCPR” and is given constitutional status by Article 39 of the Basic Law.[20] 38.Any restriction of the relevant rights therefore can only be made in accordance with paragraph 2 of Article 39 of the Basic Law.[21] 39.The Court of Final Appeal held in Leung Kwok Hung v HKSAR[22] that the relevant rights “may be subject to restrictions provided two requirements are satisfied:
40.As regards the necessity requirement, it was held that it involves the application of a proportionality test.[24] 41.It was submitted on behalf of the appellants that although section 11 had been considered by the Court of Final Appeal in the case of HKSAR v Fong Kwok Shan[25] and the provision was held to be constitutional, in that case the Court of Final Appeal had only been invited to consider whether the provision is properly prescribed by law and not the issue of proportionality. 42.It was therefore submitted that, whilst D1 would no longer pursue Grounds 1 and 2, so would the other Appellants in relation to the grounds on similar basis, I still have to consider the proportionality issue in particular as the Court of Final Appeal confirmed in HKSAR v Fong Kwok Shan[26] that the rights under the Basic Law and the Hong Kong Bill of Rights are applicable to demonstration within the precincts of the LegCo Chamber. 43.Counsel for the Respondent, Mr Derek Lai, SADPP(Ag)[27] rightly did not take issue on this point. 44.As Ribeiro PJ said in HKSAR v Fong Kwok Shan,[28] the burden is placed on the government to prove that the limitation of the guaranteed right is justified.[29] 45.There was criticism that the Magistrates based their decisions on the constitutional issue by reason of the nature of the premises of the LegCo or precincts of the Chamber. If either of the Magistrates had done so, this basis cannot sustain in the light of HKSAR v Fong Kwok Shan.[30] I do not need to go into the details in examining whether either of the Magistrates did err on the constitutional issue as magistracy appeal takes the form of re-hearing and I no doubt can make my decision on the point on proportionality which is a pure legal matter. 46.Mr Lee SC submitted that the LegCo is unique in that its proceedings and the work of its members are important, and pointed out that public protests are expected there as the LegCo is where important and controversial political decisions are often made. 47.He stressed that members of the public have the right to enter and stay in the precincts of the Chamber and such right is enshrined in section 8 of the LCPPO which provides: “sitting of the Council shall be open to the public” despite such right shall be subject to the Rules of Procedure or any resolution of the Council limiting or prohibiting the enjoyment of such right. He said no such Rules of Procedure or resolution was in force at the material time. 48.He also stressed that the offence for contravention of section 11 covers “a wide multitude of sins”, and does not as the two offences concerning disorderly conduct in section 17B of the Public Order Ordinance[31] require proof of either a further purpose or intent to provoke a breach of the peace on top of the disorderly conduct. 49.Relying on HKSAR v Fong Kwok Shan,[32] he submitted that section 11 does not mean to prohibit disorderly behaviour at large, and only with this interpretation that the provision can be constitutional. He quoted the observation of Ribeiro PJ, which he made in the course of considering the “prescribed by law” issue, that section 11 “has the benefit of a clear contextual focus and is not concerned with disorderly behavior at large”.[33] His Lordship also observed:
50.Apart from citing the abovesaid passage in the judgment of HKSAR v Fong Kwok Shan, Mr Lee SC also quoted certain provisions in the LCPPO as well as some relevant Hansard record and made the submission that the contextual focus of section 11 is twofold:
51.He submitted that a failure to “behave in an orderly manner” in the context of section 11 must therefore be construed as behavior which is disorderly in terms of being likely to disrupt or disturb LegCo proceedings or other members of the public in observing such proceedings. To construe otherwise would amount to a prohibition on disorderly behavior at large, which would unnecessarily and impermissibly restrict the right of members of the public to enter and remain within the precincts of the Chamber. 52.It was the submission of Mr Lee SC that if the offence was properly confined to its contextual focus of preventing disruption or disturbance to LegCo proceedings and ensuring the right of other members of the public in observing such proceedings, it might not constitute a disproportional restriction of the relevant rights, however, if the offence covers conduct such as that of D1 in the present case, it would be disproportional as it is devoid of its contextual focus. 53.He pointed out that it was the finding of the Magistrate that there was no breach of the peace or disruption of LegCo proceedings involved and accepted that D1 was exercising her constitutional rights.[35] If the offence covers a situation like this, it is not proportional. 54.Mr Lee SC also argued that the offence may be proportional if the elements of the offence require proof of both failing to “behave in an orderly manner” and failure to “comply with any direction given by any officer of the Council for the purpose of keeping order”. For the reasons I give in considering Ground 5 of D1[36], I cannot accept that contravention of section 11 requires proof of both matters as asserted by Mr Lee SC. 55.Counsel for D4, Mr Tam, echoed Mr Lee SC and submitted that section 11 which criminalizes mere failure to “behave in an orderly manner” creates a “blanket prohibition” without taking into account the circumstances of the case. He stressed that what D4 did in the present case (hanging the banners in the car park which only became precincts of the Chamber on the day of meeting under the extended definition but was at the same time a DPAA) did not have the effect of actually disrupting and / or disturbing the LegCo meeting or the public’s right to observe such proceedings. If such acts are covered by section 11, the provision is disproportional and therefore unconstitutional. 56.Mr Tam cited the two offences under section 17B of the Public Order Ordinance[37] which either requires a specific purpose of “preventing the transaction of the business for which a public gathering area was called together”[38] or “with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused”[39] and submitted that the difference between these provisions and section 11 demonstrates a disproportionate restriction in the latter. 57.He also argued that the risk of an indiscriminate blanket prohibition is particularly pronounced in the present case because it applies to any protests and demonstrations that may take place in a DPAA just because the place happens to be part of the precincts of the Chamber as well. A loosely defined criminal offence can easily and readily be abused and used as an instrument to deter protests and demonstrations, as behavior which did not disrupt and / or disturb the meeting or the right of other members of the public in observing such proceedings will be caught. Holding the conduct of D4 amounted to the offence in such circumstances detracts from the contextual focus and purpose of section 11thus constitutes a disproportionate restriction on the relevant rights. 58.Counsel for the Respondent, Mr Lai, submitted that section 11, if properly construed in the light of its statutory context and purpose, does not lay down “blanket prohibition” and is proportional. He stressed that the restriction is of a limited scope both in terms of location and behavior:
59.In support of his submission, Mr Lai quoted what Ribeiro PJ said on these points in HKSAR v Fong Kwok Shan[40], as set out in paragraph 49 above. 60.I accept the submission of Mr Lai that comparison between section 11 and other statutory provisions does not serve much use, in particular as the purposes of different provisions are not the same. 61.The question is whether the restriction imposed in section 11 is necessary and proportional. 62.In Mok Charles v Tam Wai Ho[41], Ma CJ held:
63.In Bank Mellat v Her Majesty’s Treasury (No 2),[42] Lord Sumption JSC described a similar approach but added one more step of consideration: “whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community”. 64.The Court of Final Appeal examined in Hysan Development Co Ltd v Town Planning Board[43] the approach to be adopted in assessing proportionality. In the judgment of Ribeiro PJ, to which all the other learned judges agreed, it was held that the four-step analysis should be adopted in Hong Kong and at the same time it was reiterated that there was no doubt on the correctness of any previous decision involving a three-step assessment. 65.Lord Sumption JSC noted that the elements of the four-step analysis inevitably overlap. Ribeiro PJ also observed that “in the great majority of cases, (the application of the fourth test) would not invalidate a restriction which has satisfied the requirements of the first three stages of the inquiry.”[44] 66.I believe it was not the suggestion of any appellants that the first two tests as set out in paragraph 62 above had not been met, in any case my judgment is that they are met. 67.Creating a secure and dignified environment which is conducive to the legislature carrying out its constitutional function is a legitimate aim. Setting a standard of orderly behavior and regulating the behavior of members of the public in the precincts of the Chamber are rationally connected to that aim. 68.I therefore focus on the examination of whether:
69.The President of the LegCo is empowered under section 8(3) of the LCPPO to issue Administrative Instructions “for the purpose of maintaining the security of the precincts of the Chamber, ensuring the proper behavior and decorum of persons therein and for other administrative purposes”. It falls within the ambit of restriction approved in Leung Kwok Hung v HKSAR.[45] It is necessary in the interest of public order (ordre public) as well as protection of the rights of those who enter and stay in the precincts of the Chamber for a legitimate purpose. Whilst the concept of ordre public is imprecise and elusive, it includes “what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole”. It must remain “a function of time, place and circumstances”.[46] 70.Mr Lai submitted that the restriction in section 11 passed the required tests. He stressed that the restriction is a limited one and does not prevent one from having a peaceful demonstration in an orderly manner inside the precincts of the Chamber, including any DPAA within it. It also does not prevent one from exercising the relevant rights lawfully at any other places outside the LegCo precincts. 71.Mr Lai cited Hysan Development Co Ltd v Town Planning Board[47] in which the Court of Final Appeal affirmed that the test is one of reasonable necessity, and a minimal impairment test does not mean that the restriction must be the very least intrusive method of securing the objective which might be imagined or devised. 72.He submitted that a reasonable balance has been struck by section 11 between the societal benefit of enabling the LegCo to properly carry out its constitutional functions on the one hand and the restriction on the relevant rights on the other. 73.Despite in HKSAR v Fong Kwok Shan[48], the Court of Final Appeal was not invited to examine the issue of proportionality in relation to section 11, I did examine it when I heard the case[49] and my conclusion was that the proportionality test had been passed. I agree that I have to consider the matter afresh in particular in the light of the observation of the Court of Final Appeal that the two strands in the Administrative Instruction are disjunctive. Having regard to submission in the present case, I maintain my view. 74.It requires section 11 to be construed to see if it does indeed lay down a blanket prohibition as argued or is in any case disproportionate. The context and purpose have to be considered[50], and they have been clearly identified in HKSAR v Fong Kwok Shan as stated in paragraph 49 above. 75.Mr Lee SC submitted that if the conduct of D1 in the present case amounts to an offence, it is devoid of the contextual context and constitutes a disproportionate restriction of the relevant rights. I do not agree. 76.The offence is clearly defined. The argument that section 11 lacks certainty and therefore fails the “prescribed by law” test was rejected by Court of Final Appeal in HKSAR v Fong Kwok Shan[51]. It has been held that it does not prohibit disorderly behaviour at large. It only prohibits failure to “behave in an orderly manner” within the precincts of the Chamber. Whether a conduct amounts to failure to “behave in an orderly manner” is to be judged on evidence by applying what was said in Chow Nok Hang[52]: the trial court is to apply the ordinary meaning of “behave in an orderly manner” to the time, place and circumstances in question, and having regard to the purpose of the Administrative Instruction, of which section 11 is a part, which is to create a secure and dignified environment in the LegCo Complex conducive to the legislature carrying out its constitutional functions at its sittings without disruption or disturbance, while permitting members of the public to observe proceedings within the Chamber as an open legislative process. Whether it is correct in convicting the appellant of the offence is one matter, whether the offence is constitutional is a totally different question. 77.If the regulation amounts to limitation to a constitutional right, whether the limitation complies with the tests is to be examined having regard to the context and purpose, taking into account the characteristic of the location where the limitation applies. It may be regarded as disproportionate at one place, but not so in another. The Administrative Instructions have application only within the precincts of the Chamber. 78.As parties argued, there is uniqueness of the LegCo. It has institutional uniqueness which stems from its constitutional role and functions as the sole legislature body in the HKSAR. Besides, the LegCo is where debates on public issues take place, some of which may attract much public concern. Decisions on controversial political matters are made there. It is also where members of the community will like to go to observe the proceedings, and express their view due to its prominence and importance symbolically. 79.The LegCo is important and unique from the perspective of its constitutional role and functions as well as from the perspective of the members of the community in exercising their rights. 80.Members of the community may go to the precincts of the Chamber to express their view, it is an important constitutional right. Nevertheless, exercise of the rights must be subject to regulation, otherwise the role and functions of the LegCo as well as the rights of members of the community will be jeopardised. 81.The regulation under section 11 confines to the precincts of the Chamber. Members of the community may exercise their rights so long as they “behave in an orderly manner”. Members of the community can also exercise their rights in other places, and there are many other channels for them to express their view. 82.A member of the community may go anywhere to exercise the right of expressing his view, wherever he goes it is out of the question that his conduct is not subject to any regulation. It may be that the place where he exercises his rights is a place designated for demonstration, for instance a DPAA within the boundary of the precincts of the Chamber. It is reasonable that when one exercises his rights inside such a DPAA, he is subject to the same regulation as in other places in the precincts of the Chamber. 83.The rights can be exercised at a place as close as just outside the precincts of the Chamber. If it happens, one may say there is just a fine distinction in the impact on the LegCo functions from what caused in ESCC 3406/2014 by the conduct inside the car park which became part of the precincts of the Chamber only by the extended definition. However, a line must be drawn. The precincts of the Chamber are or may be used by members and staff of the LegCo, officials who have to discharge duty at the LegCo, and members of the community who are exercising the legitimate rights to have access. Despite the nature and degree of the use of different places in the precincts of the Chamber vary, orderly behaviour is essential in keeping a secure and dignified environment in these places to ensure their proper use is maintained. What happens in places just beyond the precincts of the Chamber may also affect the environment but as I said, a line has to be drawn. That the conduct within or beyond the precincts of the Chamber is subject to different sets of rules does not necessarily mean that the restriction under section 11 is not proportional. Owing to the unique importance of the LegCo, it is important that people inside the precincts of the Chamber do not fail to “behave in an orderly manner”. 84.It is noted that the physical boundary of the precincts of the Chamber may vary. On the day when the Council or a committee is sitting, it extends beyond the LegCo Chambers building and covers places such as the enclosure or open space adjoining or appertaining to the building[53], including the car park where the incident in ESCC 3406/2014 took place. Notwithstanding the possible variation in boundary, section 11 only sanctions conduct amounting to failure to “behave in an orderly manner” or not complying with certain directions of the officers, within the precincts of the Chamber as defined. The definition is clearly stipulated in the legislation. The “extended precincts” only embraces a limited area surrounding the Chamber’s building and there is clear demarcation. If an incident which section 11 seeks to regulate occurs, there will be impact on the important duties and functions which the LegCo has to execute. 85.Having considered submission from Counsel, in my judgment, section 11 and the offence for contravening it met all the criteria set out in paragraphs 62 ‑ 65 above. They only regulate conduct of persons within the precincts of the Chamber. The restrictions may seem to be wide but it is clearly defined. It is important to set a standard of orderly behaviour congruent to the institutional and social importance of the LegCo. The importance of keeping the order in the precincts of the Chamber was stressed by Ribeiro PJ in HKSAR v Fong Kwok Shan[54]. Restricting the relevant right of the people inside the precincts of the Chamber by means of penalising a person for failing to “behave in an orderly manner” is rationally connected to a legitimate aim, the limitation is necessary and not disproportionate. It strikes the right balance between the rights of the individual and the interests of the community. I find that they are constitutional and valid. Other grounds of appeal 86.I now turn to the other grounds of appeal put forward by each of the appellants. D1 87.D1 did not pursue Grounds 1 and 2. I have already considered Ground 3 of D1. Grounds 4 and 7 88.Mr Lee SC argued these two grounds together. In gist, he submitted that the Magistrate failed to properly construe the words “behave in an orderly manner” and failed to apply the properly construed test to D1’s conduct. The crux of the submission is that to amount to failure to “behave in an orderly manner”, the conduct has to have the effect of disrupting or disturbing the LegCo proceedings or other members of the public in observing such proceedings, the law does not require a person to “behave in an orderly manner” at large.[55] To construe otherwise would amount to a prohibition on disorderly behavior at large, which would unnecessarily and impermissibly restrict the right of members of the public to enter and remain within the precincts of the Chamber. 89.It was submitted that as the conduct of D1 did not have such effect of disrupting or disturbing the LegCo proceedings or other members of the public in observing such proceedings, the offence was not committed. 90.Mr Lee SC stated, and correctly, that the present offence does not contain an element involving a breach of the peace. 91.The contextual focus which Mr Lee SC referred to is that set out in paragraph 49 above. 92.Apart from citing the passages in the judgment of Fong Kwok Shan[56], Mr Lee SC also quoted certain provisions in the LCPPO as well as some relevant Hansard records and made the submission that the contextual focus of section 11 is twofold, as stated in paragraph 50 above. 93.The submission of Mr Lee SC is that giving proper context to the provision, it was erred for the Magistrate to find D1 failed to “behave in an orderly manner”, in particular as there was no evidence of any actual disturbance of LegCo proceedings. The Magistrate took into account that D1 did not have a visitor’s pass. Mr Lee SC submitted that lack of the pass cannot in itself be equated with failure to “behave in an orderly manner”. The Magistrate also said D1 did not leave upon the requests of staff. Mr Lee SC submitted that D1 had not been charged with failing to comply with direction. He pointed out that the lobby was one floor below the Chamber where the FC was sitting. He stressed that evidence reveals that D1 took part in a peaceful assembly in the lobby of the LegCo complex, away from the Chamber where the FC was holding a meeting which indeed finished by 9:45pm, there was no evidence that she attempted to force her way into the upper floor, there was not any attempt or intention or likelihood on her part to disrupt or disturb the proceedings or those observing the proceedings. Despite there might be noise in the lobby, it is not a proper basis for a finding of not “behaving in an orderly manner”. There was no evidence that such noise would or was likely to reach the Chamber. The order of the lobby and the “vague notions of sanctity of LegCo” have nothing to do with the proceedings of the LegCo and / or the rights of other members of the public to observe such proceedings. The Magistrate was also criticized for failing to have due consideration of the speeches of D1 in particular the content. 94.In response, Mr Lai submitted that it had not been held in Fong Kwok Shan that disruption or disturbance to the LegCo proceedings is a necessary ingredient of the section 11 offence. He drew the attention of the court that it can be contrasted with section 17(c) of the LCPPO which specifically provides that “Any person who … creates or joins in any disturbance with interrupts or is likely to interrupt the proceedings of the Council … commits an offence.” Section 11 only requires one to “behave in an orderly manner” within the precincts of the Chamber. Section 2 of the LCPPO provides for an extended definition of precincts of the Chamber. It is clear legislative intent that by section 11 disorderly behavior is prohibited not only in the Chamber and conference rooms where LegCo proceedings are held, but also in the entire area designated as precincts of the Chamber. Even if disorderly conduct outside the Chamber and conference room does not necessarily lead to direct disruption or disturbance to the LegCo meeting, such conduct may still undermine the security and dignify functioning of the legislature. 95.I agree that requiring proof of direct and actual disruption or disturbance of the meeting does not accord with the judgment of Fong Kwok Shan. Whilst there will be little scope to argue that performing conduct which disrupts or disturbs the meeting is not a failure to “behave in an orderly manner”, it does not require such conduct to be so. 96.What the Court of Final Appeal said in Fong Kwok Shan should be considered in its entirety, the gist of which is set out in paragraph 49 above. Failure to “behave in an orderly manner” is not confined to conduct which directly and actually disrupted or disturbed any of the meetings of the LegCo. What people including D1 and D3 did would definitely hinder the legitimate use of the lobby by those who were entitled to do so. These people included members of the LegCo, officials, observers, and members of the press. They were at the least deprived of smooth leaving and returning to the building. As Mr Lee SC said, swift returning to the venue of meeting can be important in particular as the quorum is in question or when a vote is required. Besides, members of the public might be deterred to come and exercise their rights to observe the meeting. As the registration measures could not operate and staircase leading upstairs had to be guarded and effectively closed, the rights of these people were compromised. There will no longer be a secure and dignified environment in the LegCo complex conduces to the legislature carrying out its constitutional functions. 97.Firstly, the Magistrate clearly demonstrated that his analysis of the evidence was focused on whether D1 had failed to “behave in an orderly manner”. Secondly, in my judgment the Magistrate had demonstrated that he reached his decision having considered carefully the whole of the evidence. 98.The followings are the major finding of facts the Magistrate made in respect of D1:
99.Whilst the Magistrate did not find D1 had disrupted or disturbed the meeting of the FC, or had caused a breach of the peace, he found that she had failed to “behave in an orderly manner” in the precincts of the Chamber. In reaching his decision, the Magistrate had also taken into account the circumstances such as that there were other facilities the access of which was from the lobby, the lobby was also the access to the upper floor where the LegCo Chamber is located and indeed at the material time a meeting was in process. 100.The Magistrate had taken into account the two speeches made by D1. Content of the first speech is known but not that of the second speech. However, taking into account the circumstances as shown in the video footage, I am of the view that the sentiment of the people in presence must have been nurtured by her speech is the only reasonable inference to be drawn from the evidence. It should also be noted that the time of the first speech coincided with the time demonstrators resisted the effort of officers to close the doors.[58] 101.The Magistrate was entitled to take into account that D1 had a prolonged stay in the Lobby, at a time when a meeting was in progress, a lot of noise was created, the speeches D1 gave, and the normal function of the Lobby had been compromised. Those who have legitimate use of the Lobby must have been hindered in the use. Functioning of the LegCo does not confine to the meeting room. What D1 did can hardly be described as orderly and conducive to the legislature carrying out its constitutional function, it went a long way to the opposite direction. 102.In all the circumstances, having perused the video footages already adduced as evidence at trial, I find the conclusion of the Magistrate reasonable, it accords with the legislative purpose and is well supported by evidence. Ground 5 103.Mr Lee SC submitted that the Magistrate erred in holding that the offence in section 11 is committed when the accused either “fails to behave in an orderly manner” or “fails to comply with direction given by any officer of the Council for the purpose of keeping order”. It was submitted that the offence would only be committed if both of the mentioned elements exist. It is said to be the right interpretation and meaningful and can avoid an absurd situation which may be inconsistent with the right of a person in the precincts of the Chamber. 104.In Fong Kwok Shan[59], Ribeiro PJ held that it is an error to treat the offence as involving proof of both disorderly behavior and a failure to comply with the direction of an officer of the Council.[60] Mr Lee SC submitted that it was only obiter dictum and urged me not to follow it. 105.Mr Lai submitted that the above statement of Ribeiro PJ was not obiter as it had direct bearing on the overall decision of the case. 106.In any case, having considered submission and the judgment in Fong Kwok Shan[61], I do not find myself able to adopt the course Mr Lee SC urged me to. Ground 6 107.Mr Lee SC quoted a passage in the Statement of Findings and submitted that the Magistrate had erred in law in treating a failure to “behave in an orderly manner” as the same as “behaving in a disorderly manner” under section 17B of the Public Order Ordinance. The passage may be roughly translated into this:
108.What the Magistrate said should be read in context and in its entirety. I do not think he equated failure to “behave in an orderly manner” with “behaving in a disorderly manner”. In any case, this matter does not have material impact on the consideration of the appeal in particular as I am entitled to form my own view on the evidence and decide whether the conclusion of the Magistrate is correct. As held by the Court of Final Appeal in Chou Shih Bin v HKSAR:[63] magistracy appeal is “by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.” This I did when I dealt with Grounds 4 and 7. Ground 8 109.Mr Lee SC submitted that the word “orderly” in section 11 should be construed and applied in the light of the time, place and circumstances of the incident. One such important circumstances must be whether there was “order” at the material time and place. Before a person can be expected to “behave in an orderly manner”, “order” must exist at that particular place. As the requirement of the provision is to “observe the order”, it presumes the existence of order at the relevant time and place. 110.He referred the court to the Chinese version of section 11 and argued that the words “遵守秩序” support his view as the expression presumes existence of “order” “秩序” before one can “observe the order”. 111.He argued that as there was no order in existence at the material time, there was no order to be observed at the precincts of the LegCo Chamber. Evidence shows that the system of applying for and granting visitors’ passes was not functioning as protestors were already inside the precincts of the Chamber. He said evidence shows protestors were implicitly allowed to enter the Lobby. The Magistrate found that the situation was a result of the conduct of demonstrators blocking the door. In this regard, he pointed out that there was no evidence that D1 was among those demonstrators who caused the disruption. He further submitted that in such a situation where a person was able to enter the precincts of the Chamber without intervention and found himself in an environment where there was no order to speak of, there is no reasonable or logical basis to convict him for failing to “behave in an orderly manner”. 112.In response, Mr Lai pointed out that this submission ignores the clear finding of the Magistrate that the security staff had never permitted the protestors to enter the Lobby for demonstration, it was that the system of issuing of visitor’s pass could not be implemented at the material time due to the protestors’ disorderly acts. He submitted that the fact that the order in the Lobby had already been jeopardized by the demonstration of the other protesters simply did not provide an excuse for D1 to fail to behave in an orderly manner within the precincts of the Chamber. If this argument is sound, it would mean that so long as the order in the precincts of the Chamber has been disrupted, people no longer need to behave orderly and may create further disturbance there without legal consequence. 113.I entirely agree to the view of Mr Lai. Whilst I accept that in deciding whether the conduct amounts to failure to “behave in an orderly manner”, the circumstances should be taken into account, it cannot be right to say as a matter of course that where there was no order in existence or that the proper order had been disturbed or disrupted, the duty of behaving in an orderly manner no longer exists. As to whether the conduct amounts to failure to “behave in an orderly manner”, it depends on whether what the prosecution has to prove, as stated in paragraph 76 above, is sufficiently proved by evidence. Ground 9 114.Mr Lee SC submitted that the Magistrate did not give sufficient reasons for the conviction and the reasons he gave were flaw. 115.Obviously the Magistrate did give reasons for the conviction. Whether the Magistrate had given sufficient reasons depends on the circumstances of each individual case. In the present case, I am of the view that the Magistrate cannot be said to have given insufficient reasons for the conviction. 116.The flaw which Mr Lee SC accused of were:
117.I cannot agree that the above matters are flaw. These are matters which the Magistrate was entitled to take into account in deciding whether the entirety of the evidence proved D1 had failed to “behave in an orderly manner”. Ground 10 118.It was submitted that the Administrative Instructions do not, and are not intended to, apply to such persons (like D1) who were not “admitted” to the LegCo precincts of the Chamber pursuant to the Administrative Instructions. 119.Mr Lee SC referred to section 8(3) of the LCPPO which enables the President to make administrative instructions:
and argued that the regulations in the Administrative Instructions apply only to the people admitted into the precincts of the Chamber and not people like D1 who had not been officially admitted as visitors. 120.I do not agree to this view. In my judgment, the words “conduct of such persons” refer to “persons (other than members or officers of the Council)”. Section 8(3) enables the President for the specified purposes to make Administrative Instructions to:
121.Section 11 of the Administrative Instructions expressly applies to “persons entering or within the precincts of the Chamber” and section 20(b) of the LCPPO, the offence creating provision, expressly applies to “persons within the Chambers and the precincts of the Chamber”. Apart from the Chinese version of the title (see next paragraph), there is no reference to anything like persons being lawfully or officially admitted. 122.Mr Lee SC argued that the Chinese title of the Administrative Instruction supports his view. Whereas the English version is “Administrative Instructions for Regulating Admittance and Conduct of Persons”, the Chinese version is 《規限獲准進入立法會大樓的人士及其行為的行政指令》, he highlighted the expression “獲准進入” which literally does carry the meaning of having been permitted to enter. 123.He also referred to several provisions in the Administrative Instructions and submitted that the intention of the rules is to regulate admission into the Chambers or precincts of the Chamber. 124.He also pointed out that this suggested interpretation would not bring about the absurd consequence that the conduct of persons not officially admitted being unregulated as there are regulations to cover their conduct, for instance:
125.The title of a statutory provision is only one of many matters which the court may take into account in interpretation. Where the statutory provisions are set out in both the English and Chinese versions, Section 10B of the Interpretation and General Clauses Ordinance[64] is relevant:
126.In construing the provisions, the presumption that each authentic text has the same meaning should be borne in mind, and if there is a difference of meaning which cannot be resolved by the rules of statutory interpretation, the meaning which best reconciles the texts, having regard to the object and purposes of the ordinance should be adopted. 127.The Administrative Instructions obviously do not only target at persons officially permitted into the various places in the precincts of the Chamber as stipulated. Part II provides for regulation governing access and restriction on access. Part III, in which section 11 is a part, concerns conduct of people at specified place in the precincts of the Chamber. Part IV provides for facilities for the press as well as restriction of specified people of access and use of such facilities and taking of photographs. Part V provides for situation where evacuation is required. In many provisions, such as sections 4 and 5, the words “no person shall” are used. In section 11, the provision in question, the words used are “persons entering or within the precincts of the Chamber”. Having regard to the object and purposes of the Ordinance, I do not find the argument of Mr Lee SC sound. I do not find the Administrative Instructions, and in any case section 11, are meant to confine to people officially permitted into the precincts of the Chamber. 128.I accept that other statutory provisions or power may be applicable to regulate and control the conduct of people inside the LegCo, however it must be noted that different provisions cater for different situation and require different elements of offence to prove. 129.In the course of submission, Mr Lee SC pointed out that whilst there existed a mechanism say for example under section 8(2) of the LCPPO to take step to restrict or regulate behaviour of people, including trespassers, within the precincts of the Chamber, no such power had been invoked at the material time whereas the mechanism under section 8(3) and section 20 (b) of the LCPPO was erroneously invoked. 130.Section 8(2) of the LCPPO provides:
131.Whilst separate power may exist to deal with the like situations, I do not agree that it is erroneous to invoke a power existing at the same time (issuing Administrative Instructions pursuant to section 8(3) of the LCPPO) when the circumstances and evidence justified taking such step. 132.This ground fails. Ground 11 133.This is not a separate ground as such. Having considered submission and the whole circumstances, I do not consider the conviction of D1 unsafe or unsatisfactory as alleged by Mr Lee SC. I therefore dismiss the appeal of D1 against her conviction. D3 134.As Counsel for D3, Mr Shek, adopted the submission of the other Counsel and in the light of my decision in relation to the argument on legal issues put forward by them, all of D3’s grounds of appeal so far as they relate to legal issues fail. 135.As far as the finding of facts by the Magistrate is concerned, Mr Shek was unable to convince me that it is unsafe or unsatisfactory. 136.As mentioned in paragraph 23 above, D3 blocked the door together with D2. When staff at around 9:17pm asked them to leave, D2 left but D3 continued to obstruct the doors until 9:57pm. To suggest, as Mr Shek did, the conduct of D3 as passive is not an apt description of what he did in the situation. Conduct of this crowd of people who stopped closing of the door caused injuries to a number of LegCo security staff. 137.The Magistrate was fully justified in finding D3 guilty of the offence. I therefore also dismiss the appeal of D3 against his conviction. D4 138.Grounds 1 and 2 were not pursued. Ground 3 concerns the constitutional issue and has been dealt with. Ground 4 139.Mr Tam alleged in Ground 4 that the Magistrate applied the wrong test and erred in finding that D4’s conduct amounted to not “behaving in an orderly manner”. He submitted that, as the conduct of D4 hanging the banners on the canopy could not have caused disruption and / or disturbance to the meeting then in progress, the conduct was consistent with “behaving in an orderly manner” or in any case not amounted to failure to “behave in an orderly manner”. 140.In the Amended Perfected Ground of Appeal, the Magistrate was criticized for refusing to regard the New Zealand cases of Brooker v Police[65] and Morse v Police[66] applicable in the current scenario and as a result erred in finding D4’s conduct amounted to not behave in an orderly manner. 141.In his written submission and during the appeal hearing, the focus of Mr Tam was that the Magistrate failed to take into account the impacts of D4’s actions and therefore erred in making his conclusion. 142.Mr Tam pointed out that the Court of Final Appeal held in HKSAR v Chow Nok Hang[67] that in deciding whether an accused was behaving in an orderly manner, the Court must look at the time, place and circumstances of the conduct in question. 143.He also pointed out that the Court of Final Appeal observed in HKSAR v Fong Kwok Shan[68]that “the orderly behavior is demanded only of persons who enter or are within precincts of the LegCo complex” and “the section is … self-evidently concerned with keeping order in those precincts”[69]. He also quoted the passage as set out in paragraph 49 above. 144.Mr Tam submitted that whilst anyone will appreciate that disrupting and / or disturbing meeting(s) of the LegCo or its committee(s) within the precincts of the Chamber, or disrupting and / or disturbing the right of other members of the public in observing such proceedings would be regarded as failing to “behave in an orderly manner”, it is not the same if the conduct took place in the car park, as it was in the present case, which only became part of the precincts of the Chamber by operation of section 2 of the LCPPO which provides:
145.Mr Tam said the court has to take into account the following matters:
146.Mr Tam stressed that even though the car park was by definition part of the precincts of the Chamber, at the same time it was a DPAA, his submission was that the area was not intended to be, nor was it actually in use, by any LegCo members and / or staff for the purpose of any LegCo meeting at the material time. It was only an area for members of the public to express their opinions and grievances. Indeed, that was the reason why D4 went to the car park at that time. 147.Mr Tam submitted that a proper consideration of these matters should have led to the conclusion that the actions could not have caused disruption and / or disturbance to the meeting at the material time. As the Magistrate had failed to duly take into account the impact of D4’s action, he erred in finding that D4 failed to “behave in an orderly manner”. As a result, the conviction is unsafe and unsatisfactory. 148.Mr Lai submitted that the purpose of extending the definition of “precincts of the Chamber” on the day of meeting accords with the legislative objective of section 11, and indeed the LCPPO, to create a secure and dignified environment for LegCo members and officers to carry out their constitutional duties without fear, while permitting members of the public to observe safely the proceedings as an open legislative process. The whole of the precincts of the Chamber under the extended definition are places where all people having a legitimate purpose in attending the LegCo may have to pass through. I agree to this view. 149.The Magistrate held that the hanging of banners by D4 and D5 posed danger to other persons near the canopy, including the LegCo security staff performing duties there as well as other members of the public taking part in the demonstration in the designated protest area. 150.Having regard to the whole of the relevant circumstances, I am of the view that the Magistrate was entitled to find the conduct of D4 amounted to failing to “behave in an orderly manner”. Not only did his conduct pose danger to other persons near the canopy, he consciously placed himself in a dangerous situation by climbing up a high place where he ought to have known he should not go, and ought to have contemplated that staff would take step to stop him and sentiment of the people nearby would be aroused. He insisted to carry on when staff intervened and took action which was reasonable in the circumstances. Ground 5 151.This is indeed Ground 10 put forward by Mr Lee SC on behalf of D1. Mr Tam adopted the submission of Mr Lee SC and submitted that D4 was indeed in a better position as he was outside the LegCo complex at the material time and therefore was not even required to obtain a visitor’s pass for his presence. 152.For the reasons I have mentioned earlier, I do not accept the submission of Mr Lee SC in relation to this ground. 153.The fact that D4 was not inside the LegCo building is not relevant, he was inside the precincts of the LegCo Chamber as defined and has to “behave in an orderly manner”. 154.This ground fails. 155.All the grounds put forward for D4 fail. In my judgment, his conviction is neither unsafe nor unsatisfactory. His appeal against conviction is therefore dismissed. D5 156.Counsel for D5, Mr Shek, indicated that he adopted the submission of Mr Tam. All the grounds were framed as legal issues. I have earlier directly dealt with the legal issues in Grounds 1, 2, 4 and 5 and my conclusions are not favourable to Mr Shek. 157.For the grounds which alleged error in finding D5 guilty of the offence, I note that the Magistrate had the following findings of facts:
158.In my judgment, the Magistrate was entitled to find D5 failed to “behave in an orderly manner” on the evidence. Clearly he was acting in concert with D4. The conviction of D5 is neither unsafe nor unsatisfactory. I dismiss his appeal against conviction. Appeals against sentence 159.D1 and D3 appeal against sentence. Grounds and Submission of the Appellants D1 160.D1 was sentenced to two weeks’ imprisonment. Mr Lee SC submitted that the sentence was wrong in principle and / or manifestly excessive, as the Magistrate:
161.He submitted that the Magistrate had failed to give any or any proper weight to the following matters:
162.Mr Lee SC submitted that a fine would have properly reflected the true nature of the offence, or alternatively a CSO should be considered. He pointed out that despite D1 had previously refused to give consent to perform unpaid work under a CSO, she now consents to do such work. D3 163.Counsel for D3, Mr Shek, stressed that D3 had a clear record before this conviction and submitted that the Magistrate erred in imposing a deterrent sentence on a first-time offender. He also submitted that a sentence of three weeks’ imprisonment is manifestly excessive and inappropriate. He pointed out that the demonstration had been peaceful, there is no evidence of any premeditation, there was no evidence that D3 intended such a number of persons to involve in the acts. He submitted that the role of D3 was minor and his conduct could be described as passive: just standing there. The court is asked to consider ordering CSO on D3. Submission of the Respondent 164.In response, Mr Lai quoted the case of SJ v Wong Chi Fung[76] in which the Court of Final Appeal repeated the remarks made by Ribeiro PJ in Chow Nok Hang:
and added:
165.Mr Lai submitted that the offence committed respectively by the two Appellants in the particular circumstances of the case were not minor. The offences hampered the proper functioning of the systems of security check on visitors and issuing of passes pursuant to the Administrative Instruction. As a result, people might enter the LegCo complex freely without any verification. Security of the complex was jeopardized, and dignity of LegCo was undermined. He submitted that the law never allows a person to exercise the constitutional rights through unlawful means. Reply of the Appellants 166.In reply, Mr Lee SC emphasized that the demonstration had been peaceful, at least as far as the circumstances in which D1 was involved, and she had not involved in any violence or threat of violence, let alone breach of the peace. 167.Mr Shek emphasized that there was no evidence that the act of D3 had directly caused anyone to suffer injuries. Discussion and Consideration 168.In sentencing, the Magistrate[78] recognized the rights of each citizen to have freedom of expression and that the community should accommodate different views and opinion. He took into account the following matters:
169.He noted that the incident took place in the LegCo which has important constitutional function. It is therefore important to ensure that the members and staff can discharge their duty independently and in dignity. The regulation system is put in place to ensure this. 170.He took into account that the appellants were concerned about the matter discussed by the FC and had a strong view. 171.He also noted that the appellants chose an illegal means to achieve their aim. If everyone is to ignore the regulatory measures, there will be no order in the precincts of the Chamber. As a result, the proper and efficient functioning of the LegCo will be hampered, and this will have long term adverse effect on the development and running of the society. 172.He stressed that there were many channel for the appellants to lawfully and properly express their view. There was a demonstration area designated where people can lawfully and freely express their view. D1 chose to improperly stay in the Lobby for about five hours and did not leave despite repeated request by the staff. Her speech encouraged other demonstrators who had also entered without proper permission to stay, which seriously affected the function of the Lobby and blocked the access upstairs. Noise was created. Dignity of LegCo was affected. 173.As regards individual appellant, the Magistrate had the following observations and consideration. D1 174.He noted that D1 had over the years been enthusiastic in social affairs, she stressed that it was her intent to insert pressure on the authority and the members of the LegCo, and she also wanted to attract attention of the social media to have more concern about the matter as what she had done before did not seem to be effective. 175.He accepted that the demonstration inside the Lobby had been a peaceful one. He also accepted that there was no evidence to show that the demonstrators had obstructed the meeting of the FC or its members to attend the meeting, there was no evidence that any demonstrator had successfully run up to the upper floor, nor any one of them had used any violence. 176.However, he did not find the facts disclosed a not serious case and considered an imprisonment term was called for. He adopted two weeks as the starting point and considered there existed no grounds to justify any deduction. He therefore imposed an immediate imprisonment term of two weeks on D1. 177.Before he made the decision, the Magistrate had considered other sentencing options including CSO. CSO was not recommended not only because the reporting officer did not consider it appropriate, but also because D1 had indicated her unwillingness to perform unpaid work under a CSO. 178.In SJ v Wong Chi Fung[79], the Court of Final Appeal observed that “an offender’s motive for committing an offence is a relevant factor in a court’s decision as to the appropriate sentence to be imposed and can be a relevant mitigating factor.”[80] At the same time, the Court also delivered the passage as set out in paragraph 164 above. 179.The observation was made when the Court of Final Appeal was considering a case of unlawful assembly, a generally more serious offence. Nevertheless, I am of the view that such observation, in particular the underlying thought, has general application. 180.Even in cases of civil disobedience, which was not specifically raised by any of the Counsel as a concept applicable in the present case, where the court may take into account as motive for committing of the offence if the behavior of the offender is actuated by his conscientious objections and genuine belief of injustice, the Court of Final Appeal said: “the weight to be attached to that motive will necessarily vary depending on many other circumstances, including the facts of the offending and its consequences and the need for deterrence and punishment.”[81] The Court also said:
181.The Magistrate demonstrated that he had given careful and thorough thought of the relevant matters before he decided on the sentence. 182.At the time of sentence, the option of CSO was obviously not available as D1 indicated that she was unwilling to perform unpaid work under a CSO and her consent is a statutory pre-requisite in imposing a CSO.[83] 183.Now D1 indicated that she would be willing if a CSO is imposed and Mr Lee SC asked the court to consider making such an order. 184.Mr Lee SC reminded the court that this was the first case in which a person has been charged for contravention of section 11. It is settled law that the sentence for an offence should be in accordance with the practice prevailing at the time of the commission of the offence,[84] and the court has yet at the material time indicated any view on the offence. 185.The Court of Appeal in SJ v Wong Chi Fung[85] observed that genuine remorse has always been considered a precondition for CSO and genuine remorse means the offender acknowledges that he has committed an offence and shows remorse for what he had done and caused, and not simply saying that he is willing to accept legal responsibility and punishment. Poon JA set out the matters which the court should take into account in deciding whether the convicted accused has genuine remorse:
186.Having considered the whole of the relevant circumstances, I do not consider D1 a suitable candidate for CSO, nor do I consider CSO appropriate, for the following reasons:
187.As regards the suggestion of a fine, it is my view that such a sentence is plainly insufficient to reflect the true culpability of D1 in the case. 188.I agree to the Magistrate that it is appropriate to impose an immediate imprisonment term. Having regard to SJ v Wade[86], I do not consider it appropriate to have the sentence suspended. The Magistrate adopted a starting point of two weeks, I do not consider it wrong in principle or manifestly excessive. I also agree that there is nothing which justifies a discount. 189.I therefore dismiss the appeal against sentence of D1. D3 190.In relation to D3, the Magistrate had the following observations:
191.The Magistrate considered an imprisonment term appropriate. He adopted three weeks as the starting point and did not consider there existed any reasons for discount. He therefore imposed an immediate imprisonment term of three weeks on D3. 192.In relation to D3, despite there was no evidence to prove that any injuries had been a direct consequence of his conduct, it was the chaotic situation in which he actively took part which caused the injuries of several staff, the remark of the Court of Final Appeal as quoted in paragraph 164 above is of relevance. 193.Mr Shek challenged the assessment that the culpability of D3 was most serious. I do not consider it meaningful and helpful to compare between the appellants for the purpose of this appeal as the conduct of D1 and D3 was of different nature. The question is whether the sentence now imposed on D3 is wrong in principle and / or manifestly excessive, or in any case inappropriate. 194.What the Magistrate stated, as set out in paragraph 190 above, are what he was entitled to take into account, and should have been taken into account, in consideration of sentence. He had carefully considered whether there was other appropriate sentencing option before he decided the sentence. Even though D3 did not have any prior criminal conviction, in the circumstances of the present case, I am also of the view that immediate custodial sentence is the only appropriate sentence to impose. 195.A fine is definitely insufficient to reflect the nature and seriousness of the conduct of D3 and the consequences (which must have been within the reasonable contemplation of D3). The fact that D3 was not the person who started to block the door did not alleviate his culpability as he joined realising the chaotic situation which had been caused and he carried on for 50 minutes during which there was physical encounter. 196.As regards CSO which has not been recommended mainly on the ground of the attitude of D3, having regard to the fact that this is the first conviction of D3, I similarly do not consider it appropriate due to the lack of genuine remorse on the part of D3. Not only that he did not plead guilty and has lodged an unsuccessful appeal against conviction, what he said to the reporting officer about his conduct at the material time did not indicate remorse. There is no sign that D3 accepted what he did was unlawful. 197.In all the circumstances, I am of the view that an imprisonment term is not wrong in principle. The length of the term cannot be said to be manifestly excessive. There was an argument that, if the term was so short the court should consider whether an imprisonment term should be imposed at all. Having considered the whole circumstances of the case, in my judgment the present sentence is appropriate and sufficiently reflects the nature and seriousness of the matter. 198.I am also of the view that there exists no justification to suspend the imprisonment term. 199.For these reasons, I also dismiss the appeal against sentence by D3. I do not consider it either wrong in principle or manifestly excessive.
Mr Martin Lee SC, Ms Linda Wong and Mr Geoffrey Yeung, instructed by Ho, Tse, Wai & Partners, for the 1st appellant in HCMA 617/2015 (D1) Mr Jeffrey Tam and Mr Andrew Lau, instructed by Au Yeung, Chan & Ho, for the 1st appellant in HCMA 438/2015 (D4) Mr Randy Shek, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the the 3rd appellant in HCMA 617/2015 (D3) and 2nd appellant in HCMA 438/2015 (D5) Mr Derek Lai, SADPP(Ag), Mr Derek Lau, SPP, and Ms Karen Ng, PP, of the Department of Justice, for the respondent in both cases The 2nd appellant in HCMA 617/2015 (D2) was not represented and was not present, his case was severed, see paragraph 6 in the judgment [1] Contrary to section 20(b) of LCPPO, Cap 382, Laws of Hong Kong. [2] Mr Lee Siu Ho in ESCC 3350/2014 and Mr Colin Wong in ESCC 3406/2014. [3] The summarized facts were drawn up by reference to the Statement of Findings, and were agreed by all parties. [4] At trial, D1 was represented by Ms Linda Wong, D2 appeared in person, D3 was represented by Mr Jeffrey Tam, D4 was also represented by Mr Jeffrey Tam, and D5 was represented by Mr Randy Shek. [5] Mr Lee SC did not represent D1 at trial, only Ms Wong did. [6] The Amended Perfected Grounds of Appeal filed on 6 August 2018. [7] [2017] 20 HKCFAR 425. [8] At trial, D3 was represented by Mr Jeffrey Tam. [9] Amended Perfect Grounds dated 6 August 2018. [10] Cap 245, Laws of Hong Kong. [11] Re-Amended Perfected Grounds dated 13 August 2018. [12] Supra. [13] Mr Shek also represented D5 at trial. [14] Re-Amended Perfected Grounds dated 13 August 2018. [15] Cap 383, Laws of Hong Kong. [16] Section 8 of the Ordinance. [17] (2005) 8 HKCFAR 229. [18] See paragraph 20 in the judgment. [19] Supra. [20] See Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 and Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229. [21] See paragraph 36 above. [22] Supra. [23] Paragraph 17 in the judgment. [24] See paragraph 33 in the judgment of Leung Kwok Hung. [25] Supra. [26] Supra. [27] Mr Lai appeared together with Mr Derek Lau, SPP, and Ms Karen Ng, PP. [28] Supra. [29] Paragraph 36 in the judgment. [30] See Part E in the judgment of the case. [31] Cap 245, Laws of Hong Kong. [32] Supra. [33] Paragraph 99 in the judgment. [34] Paragraphs 80 and 82 in the judgment. [35] Quoting paragraphs 125, 139 and 129 in the Statement of Findings. [36] See paragraphs 103 ‑ 106 in this judgment. [37] Cap 245, Laws of Hong Kong. [38] Section 17B(1) of the Public Order Ordinance. [39] Section 17B(2) of the Public Order Ordinance. [40] Supra. [41] (2010) 13 HKCFAR 762. [42] [2014] AC 700. [43] (2016) 19 HKCFAR 372. [44] Paragraph 73 in the judgment. [45] See paragraph 39 above. [46] See HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, at 459 I. [47] Supra. [48] Supra. [49] HCMA 666/2015, [2017] 2 HKLRD 225, paragraphs 95 - 112. [50] See HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 [63] and Fong Kwok Shan [78]. [51] Supra. [52] (2013) 16 HKCFAR 837. [53] Section 2 of the LCPPO and section 2 in the Administrative Instruction. [54] Supra. [55] Paragraph 99 of the judgment in Fong Kwok Shan was quoted. [56] Supra. [57] What D1 said was captured on a video footage, exhibit P21. [58] Paragraphs 14 and 23 in this judgment are relevant. [59] Supra. [60] Paragraph 100 in the judgment. [61] Supra. [62] The Statement of Findings was written in Chinese, its original text is: “「遵守秩序」與否，本席認為，無異於《公安條例》「擾亂秩序」四字，可按其通常意思加以運用，視行為的性質、發生的時間、地點和情況而決定，是一個事實（而非法律）問題，由法庭審視每宗案件整體案情而定。(HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837)” [63] (2005) 8 HKCFAR 70, at 78. [64] Cap 1, Laws of Hong Kong. [65] [2007] 3 NZLR 91. [66] [2012] 2 NZLR 1. [67] Supra, see paragraph 76 above. [68] Supra. [69] Paragraph 80 in the judgment. [70] [2018] 21 HKCFAR 35. [71] Paragraph 64 in the judgment. [72] Paragraph 67 in the judgment. [73] The offence contrary to section 17B(2) of the Public Order ordinance. [74] Supra. [75] See page 105 in the judgment. [76] Supra, paragraphs 68 ‑ 69 in the judgment. [77] Paragraph 69 in the judgment. [78] Mr Lee Siu Ho. [79] Supra. [80] Paragraph 64 in the judgment. [81] See paragraph 71 in the judgment of Wong Chi Fung. [82] See paragraph 75 in the judgment of Wong Chi Fung. [83] Section 4(3)(a) of the Community Service Orders Ordinance, Cap 378, Laws of Hong Kong. [84] See paragraph 77 in the Court of Final Appeal judgment of Wong Chi Fung. [85] [2018] 2 HKLRD 699, at paragraphs 146 - 147. [86] CAAR 1/2015. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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