HKSAR v. Leung Tin Kei and Others
Read the full judgment text of HCCC 408/2016 on BabelCite. This High Court CFI judgment was delivered on 22 November 2018.
1. The charges involved in this case include:
Cited by 10 cases · Cites 4 cases
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[English Translation - 英譯本] HCCC 408/2016 & HCCC 408A/2016 [2018] HKCFI 2715
IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NOS. 408 AND 408A OF 2016 ____________________
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REASONS FOR RULING ON THE ISSUES OF THE ELEMENTS OF THE OFFENCES AND UNCONSTITUTIONALITY 1.The charges involved in this case include:
2.The prosecution and each of the defendants held different views on the elements of the offences in respect of the two charges. It is therefore necessary for the court to decide on this issue. 3.The two offences are created by sections 18 and 19 of the Public Order Ordinance[1] respectively. 4.Section 18(3) provides that any person who takes part in an unlawful assembly shall be guilty of the offence of unlawful assembly. 5.What is an unlawful assembly? According to section 18(1):
6.As for the offence of riot, according to section 19(1):
7.Regarding the offence of unlawful assembly, on the face of the provisions, there are the following 3 aspects of the elements of the offence:
Prosecution’s submission 8.Citing the English case of R v Jones[2], the prosecution submitted that: the ingredients of the offence of unlawful assembly are: (1) the actus reus of being or coming together, namely the act of assembly, and (2) the mens rea involved in the intention of fulfilling a common purpose in such a manner as to endanger public peace. Those ingredients have to be co-existent. 9.The prosecution took the view that in respect of element 3(b) (“causing the stipulated fear by an objective standard”) set out in para 7 above, proof of mens rea is not required, nor will the defence[3] that defence counsel Mr Kwok has raised by citing Kulemesin v HKSAR exist.Mr Kwok SC for the prosecution pointed out that regarding the matters required to be proved by the prosecution in relation to the charge, particularly “taking part”, proof of the intention to take part is required, as well as proof of the “corporate nature / common purpose” of the assembly in which the defendant is “taking part”. This matter also requires proof of mens rea, and therefore there is no absolute liability or strict liability imposed. 10.As to “taking part”, if the defendant commits the “prescribed act or acts” personally, that can be used as the basis of proof. Besides, the principle of joint enterprise can also be relied on for proving it. 11.Regarding the offence of riot, the essential actus reus is also “taking part”. Proof of mens rea is required. 12.The prosecution also submitted that even if the considerations set out in Kulemesin[4]are applicable in the present case, on the proper construction of the relevant provisions, the presumption of mens rea ought to be displaced. The prosecution made reference to the offence of assault occasioning actual bodily harm[5] to support this argument. 13.The prosecution also urged the court to take into account that: even if the “causing the stipulated fear by an objective standard” limb is of absolute liability, it does not undermine the other safeguards provided in the elements of the offence, and the reasons why the defendant committed a certain “prescribed act” and why he and other persons assembled do cover to a large extent the defence of honest and reasonable belief raised by the defence. Furthermore, the displacement of the presumption of mens rea is conducive to ensuring the effect of the provisions. 14.Taking together the prosecution’s written submission and Mr Kwok SC’s oral submission at the hearing, it was the prosecution’s view that the elements of the offences in respect of the two charges are as follows:
The defence’s submissions 15.The main points of the submission of Mr Ma, counsel for D1, are as follows:
16.He was of the view that the prosecution has to prove the matters set out in items (1) to (5) below in order to prove that there was an unlawful assembly, and go on to prove the matters set out in items (6) to (8) in order to prove that he committed the offence of riot:
17.Mr Iu and Mr Wong, counsel for D2 and D3 respectively, submitted that the relevant directions given by Pang J in another case ought to be adopted, however, as far as the “causing the stipulated fear by a subjective standard” limb is concerned, the wording used in the Ordinance ought to be adopted, namely intended to cause “any person reasonably to fear that the persons so assembled will commit a breach of the peace”, and not intended to cause “a breach of the peace”. Besides, they also submitted on how to direct the jury on the matter of “common purpose”. The directions given by Pang J are as follows:
18.It was the submission of Mr Kwok, counsel for D4, that the prosecution’s interpretation of the elements of the offences is unconstitutional because:
19.In support of his argument, Mr Kwok cited Article 28 of the Basic Law, which reads:
20.He also cited a passage from Bokhary PJ’s judgment in HKSAR v Hin Lin Yee[8] and submitted that freedom of the person engages constitutional protection. A law may be unconstitutional if it is arbitrary. The imposition of absolute liability may be unconstitutional for arbitrariness where the imposition of such liability would have no deterrent effect. 21.He took the view that in the course of analysis and consideration, the considerations in R v Jones[9] cited by the prosecution ought not to be adopted as what was examined in that case is the offence of unlawful assembly under the common law, and not the offence of unlawful assembly under the Public Order Ordinance. 22.He was of the view that in order to determine what has to be proved in respect of the relevant charge, the approach and the considerations that the Court of Final Appeal set out in the case of Kulemesin[10] ought to be followed. 23.It was his submission that it is most appropriate to adopt the second alternative in Kulemesin for the purpose of interpretation, namely, in respect of the element of offence of “causing the stipulated fear by an objective standard”, the prosecution is not required to prove mens rea, however, the defence ought to be allowed to raise the argument that even if the defendant did “the prescribed act”, given that it was his honest belief that that act would not be likely to cause “the stipulated fear”, he should not be found guilty of the offence. In respect of this belief, the defence bears only an evidential burden. 24.Although Mr Iu and Mr Wong, counsel for D2 and D3, took the stance as set out in para 17 above, they also indicated that should the court agree with the submission of defence counsel Mr Kwok, they would welcome that. Discussion and Consideration 25.It was pointed out in cases such as Hin Lin Yee[11] and Kulemesin[12] that under the established principle of statutory interpretation, proof of mens rea in relation to each element of the offence, which is not related to the offender’s state of mind[13], is required. This applies even where the statute is silent on mens rea. That is the presumed legislative intent. 26.However, this presumption may be displaced. Where the court ascertains that the legislative intent was to create an absolute liability, it may do so. 27.The court would be slow to come to the conclusion that absolute liability has been imposed. Particularly, where the relevant offence is serious, it should be more cautious. 28.Unlawful assembly and riot are both serious offences. 29.All parties accepted that in order to prove the charge of unlawful assembly, the prosecution has to prove 3 aspects of the elements of the offence (see para 7 above). 30.The main issue in dispute lies in element (3)(b), which is the third aspect of the elements. The prosecution submitted that in respect of proof of the first and second aspects of the elements, the prosecution has to prove the mens rea that the defendant and other persons had a common purpose. As for the third aspect of the elements, the Ordinance expressly provides that in respect of element 3(a) (“causing the stipulated fear by a subjective standard”), the prosecution has to prove intention, however, in respect of element 3(b) (“causing the stipulated fear by an objective standard”), the provision does not expressly require proof of mens rea. It was the prosecution’s submission that this shows that the legislative intent was to displace the presumption of mens rea. 31.The prosecution cited the judgment of the House of Lords on the elements of the offence of assault occasioning actual bodily harm in DPP v Parameter[14] to support its submission. 32.The prosecution also submitted that the displacement of the relevant presumption is for ensuring the effect of the Ordinance. The main purpose of the Public Order Ordinance is to safeguard public order and safety and prevent social order from deteriorating. The displacement of the relevant presumption is rationally connected with this lawful purpose and is also necessary. 33.The Court of Final Appeal pointed out in Hin Lin Yee[15] that what is to be determined by the court is:
34.As far as the subject matter is concerned, it is necessary for the court to have regard to the social context in which the Ordinance was enacted. This includes:
35.The Court of Final Appeal also pointed out that in deciding whether the presumption of mens rea has been displaced expressly or by necessary implication, the first (and possibly most crucial) consideration is the statutory language, including the use of words carrying a connotation of knowledge or intention. Second, the nature and subject matter of the offence are also of great importance. The more serious the offence in terms of penalty and social obloquy, the less likely it is that the presumption will be held to have been supplanted, although this is not impossible. Third, the legislative purpose, and its possible frustration by insisting on full mens rea, is obviously an important consideration. 36.Where the consequences are severe, an absolute liability should only be found to arise where such a conclusion is compelling. It is necessary to justify absolute liability on the basis that it serves some useful purpose, i.e. it can affect observance of the law. Further, the court has to be satisfied that the statutory purpose cannot sufficiently be met by making the offence subject to the common law defence. 37.There are two situations, among others, where absolute liability may in principle be imposed. The first is where the law does not consider the conduct in question to be essential or even necessarily acceptable from a societal point of view, as in the case of certain sexual offences. Another example is where the policy of the law is that a person should abstain from certain conduct unless that conduct is plainly lawful and acceptable in the relevant circumstances. The second involves the statutory imposition of a duty on a person where the conduct or task being the subject of the duty is in practice likely to be carried out or performed by someone else, such as an employee or a contractor. Many regulatory offences may fall within the second situation. 38.The offence of unlawful assembly was originally a common law offence. In accordance with the English case of R v Jones[16]，the elements of the offence are as set out in para 8 above. 39.Since the enactment of the Public Order Ordinance, the elements of the offence have had to be ascertained by reference to its provisions. 40.The two essential elements of the offence of unlawful assembly can be seen in section 18(3) of the Ordinance[17], namely “taking part” and “unlawful assembly”. 41.These two essential elements are, on its language, both actus reus. 42.In order to understand the requisite mens rea, one has to construe the Ordinance. 43.In SJ v Leung Kwok Wah[18]，Lam JA[19] pointed out that the concerns with the 3 aspects of the offence of unlawful assembly are as follows:
44.As far as “assembled together” is concerned, because of the corporate nature, it entails a joint responsibility, which is directed against the persons who did “the prescribed act or acts” amongst those assembled together, and for those who did “the prescribed act or acts”, there have to be at least 3 persons. Furthermore, for those who did “the prescribed act or acts”, apart from the requirement that there have to be at least 3 persons, it is also necessary to prove that they did so for a common purpose. 45.Although it was stated in the legislative documents when the Ordinance was amended in 1967 that proof of a common purpose would no longer be required, both the prosecution and the defence took the view that given the development of case law[20], it has now been established that that has to be proved. I agree with this view. 46.Lam JA cited R v Jones[21]in the judgment, the main purpose of which seemed to be to analyse the first concern. He expressly stated that those words[22] he had quoted were concerned with the common law offence. In the context of an offence created by section 18, there is a need to adjust the mens rea aspect to take account of the objective limb of the third aspect of the elements. Since the issue of mens rea in this regard was not an issue in dispute in that case, Lam JA did not explore any further in that regard. However, it could not be said that he agreed that the legislative intent was to impose an absolute liability. 47.In respect of “the prescribed acts” aspect, Lam JA was of the view that the focus should be on the character of the conduct rather than the legality of the purpose behind the conduct. There are authorities to support this view, with which I also agree. In To Kwan Hang[23], Macdougall VP stressed that even if the protesters were exercising their right of assembly, they had no right to resort to violence. This view is confirmed in a series of authorities. 48.As to what the nature of element 3(b) of the offence of unlawful assembly (i.e. “causing the stipulated fear by an objective standard”) is, the parties differed. The defence was of the view that it is the consequences of “the prescribed acts”, whereas the prosecution was of the view that it is merely a criterion for regulating “the prescribed acts”. 49.There is no authority to support the prosecution’s view, whereas the defence’s view falls within the literal meaning of the words. Defence counsel Mr Kwok also submitted that when so construed, it is no different from authorities such as SJ v Leung Kwok Wah[24]. He pointed out that Lam JA, in that case, described this element as “the third ingredient” rather than categorizing it as the criterion for the second ingredient (“the prescribed acts”). 50.In my view, the defence’s view is desirable. 51.Even if the prosecution’s view is correct, I do not consider that consideration of the presumption of mens rea as aforesaid can be avoided. If the effect of the “causing the stipulated fear by an objective standard” limb were to regulate by criterion “the prescribed acts”, it would be all the more necessary to prove mens rea because if the prosecution’s argument were correct, a complete concept would be doing “the prescribed acts” which conform to that criterion, and the corresponding mens rea would have to be directed at such acts. What can be considered would be “intended to”, “deliberately” or “wilfully” do a “prescribed act” which is of such a “criterion”, and not just having the mens rea in respect of “doing the prescribed act”. 52.Since I am of the view that the defence’s view is desirable, I have considered the matter on the basis that the nature of element 3(b) of the offence (“causing the stipulated fear by an objective standard”) is the possible consequences of “the “prescribed acts”. In accordance with the directions in Hin Lin Yee[25], in considering the matter, I have taken into account the 5 alternatives set out in Kulemesin[26]. 53.Defence counsel Mr Kwok submitted that if proof of mens rea were not required in respect of this limb of the elements of the offence, it would be tantamount to the imposition of absolute liability. 54.Imposition of absolute liability is not necessarily unconstitutional. 55.In Sweet v Parsley[27], the House of Lords pointed out that whether the legislative intent was to impose absolute liability is a matter of statutory interpretation. If it is ascertained through interpretation that this is the legislative intent, the statute ought to be held to have imposed absolute liability. Such an approach was also endorsed by the Court of Final Appeal in Hin Lin Yee[28]. 56.In Kulemesin, the Court of Final Appeal stressed[29] that if the offence is serious, the conclusion that the presumption of mens rea is displaced should not be lightly reached, especially where the situation is one of the following:
57.The court has to consider whether the imposition of absolute liability is conducive to achieving the legislative purpose and whether it is appropriate and adequate to impose less stern measures. 58.The purpose of creating the two relevant offences is concerned with public safety. According to the preamble of the Ordinance, the purpose of its enactment is “to consolidate and amend the law relating to the maintenance of public order, the control of organizations, meetings, processions, places, … unlawful assemblies and riots and matters incidental thereto or connected therewith.” 59.It is beyond doubt that the two offences are both serious. 60.Would it be the legislative intent that proof of mens rea is not required?This is something to which I have to give careful consideration. 61.It can be seen from the legislative documents that at the time of the enactment of the Ordinance, one of the main concerns was to ensure that innocent persons are not made criminally liable when something untoward happens in the assembly. Having regard to the constitutional rights of assembly, procession and petition, I am of the view that weight has to be given to this concern. 62.On the other hand, it is clear that the creation of this offence is a preventive measure which aims at safeguarding against the breach of the peace. 63.Creating an element of the offence with a simple objective test is relevant. However, regard has to be had to whether it is in line with the principles of statutory interpretation set out above and assessment has to be made as to whether requiring no proof of mens rea is conducive to achieving the legislative purpose and whether it is proportionate to what is necessary. 64.In the course of consideration, I have taken into account the above considerations as well as the following matters:
65.Besides, I am also concerned with whether requiring no proof of mens rea is a prerequisite for achieving the legislative purpose and whether this will be disproportionate to what is necessary. 66.Upon careful consideration, I am of the view that as far as the “causing the stipulated fear by an objective standard” limb is concerned, the presumption of mens rea ought not to be displaced. I am also of the view that “knowledge” or “recklessness” is the appropriate mens rea in relation to the “causing the stipulated fear by an objective standard” limb of the elements. 67.In Hin Lin Yee[31], the Court of Final Appeal endorsed the following views articulated in the English case of He Kaw Teh v R[32]:
68.In the prosecution’s submission, Mr Kwok SC made it clear that the prosecution took the view that proof of mens rea is not required in respect of this aspect of the elements of the offence, but if the presumption of mens rea applies, then “knowledge” or “recklessness” would be the appropriate mens rea for consideration. 69.Defence counsel Mr Kwok took the view that it has to be demonstrated that the presumption of mens rea ought to be displaced and that only by adopting the second alternative set out in Kulemesin[33] will it be consistent with the approach and the principles articulated in that case. 70.The second alternative reads: the prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted … in the honest and reasonable belief that the circumstances of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves “beyond reasonable doubt” the absence of such exculpatory belief or that there were no reasonable grounds for such belief. 71.He also pointed out that if the legislative intent was to include mens rea, why is it that it was not written down expressly in the same manner as the “causing the stipulated fear by a subjective standard” limb; and what is more, in the context of this offence, the demarcation between “intention” and “knowledge” or “recklessness” is blurred. On the one hand, the “causing the stipulated fear by a subjective standard” limb requires mens rea in the form of “intention”, but on the other, “knowledge” or “recklessness” is adopted as mens rea in the objective limb; that is not appropriate. 72.The two types of “causing fear” are aimed at different situations. What the subjective limb is aimed at is the situation where when those persons did “the prescribed act or acts”, they intended to cause fear; and what the objective limb is aimed at is the situation where those persons’ performance of “the prescribed act or acts”, objectively speaking, would have that sort of prescribed consequences. The question is whether it ought to be presumed that proof of mens rea is required in respect of the consequences. One of the relevant considerations is whether the displacement of this presumption is conducive to achieving the legislative purpose and not disproportionate to what is necessary. 73.Upon careful consideration, I rule that in respect of the “causing the stipulated fear by an objective standard” limb, the prosecution has to prove that: the defendant knew of or was reckless as to the “prescribed act or acts” being likely to cause “the stipulated fear”. In so construing the relevant Ordinance, there is no possibility of unconstitutionality as defence counsel Mr Kwok asserted. 74.Furthermore, in respect of “the prescribed act or acts”, the prosecution has to prove that the defendant wilfully did one or more of “the prescribed acts”, in other words, knowing that his act or acts would be in a disorderly, intimidating, insulting or provocative manner, he nevertheless did “the prescribed act or acts” of his own free will. The word “wilfully” carries a connotation of knowingly doing the relevant act or acts and knowing that the relevant act or acts will be committed in a “disorderly”, “intimidating”, “insulting” or “provocative” manner, and the word “knowing” carries the meanings of, inter alia, “knowledge” and “recklessness”. 75.The wording of the Ordinance is conduct themselves in a “disorderly”, “intimidating”, “insulting” or “provocative” manner, and not doing an act or acts to disrupt order, intimidate, insult or provoke. The former is looking at the effect from an objective point of view whereas the latter is doing an act or acts with a subjective intent. Thus, in my view, “wilfulness”, and not “intention” as defence counsel Mr Ma submitted, is the appropriate mens rea. This is in line with the legislative intent. 76.Where there is an evidential basis, the prosecution may prove the charge on the basis of the principle of joint enterprise. 77.Defence counsel Mr Kwok also submitted that if the prosecution proved the charge of unlawful assembly by relying on the principle of joint enterprise, then, as a matter of logic, it was also proven that the defendant had the intention or was likely to know that the persons so assembled would commit a breach of the peace. In such circumstances, the prosecution had in fact proved the charge of riot on the basis of the principle of joint enterprise as well, so that, in other words, there was no difference at all between the two sets of charges of unlawful assembly and riot D4 faced, a matter that infringed the rule against double jeopardy, which is prohibited by law. That is not the situation in the present case. The elements of the offences of unlawful assembly and riot are different. The prosecution has to adduce evidence in respect of each charge so as to make the jury sure that each and every element of the offence in respect of each charge has been proved. Where the charge of unlawful assembly has been proved, even if it has been proved on the basis of joint enterprise, it does not necessarily follow that the charge of riot has been proved. I do not think that there is any problem with the present prosecution, nor do I agree that the prosecution’s approach infringed the rule against double jeopardy as defence counsel Mr Kwok asserted. Conclusion 78.I rule that, in giving directions to the jury, the elements of the offences and the relevant directions in respect of the two relevant charges shall be as follows: The offence of unlawful assembly
79.Did “the prescribed act or acts” can mean:
80.As to whether it is necessary to give directions in this regard and the wording to be adopted, it all depends on the evidential circumstances at the trial. The offence of riot 81.The prosecution has to prove all the elements of the offence of unlawful assembly, as well as that: the defendant and the aforesaid persons assembled unlawfully actually “committed a breach of the peace”. 82.In the context of the offences of unlawful assembly and riot, “committed a breach of the peace” means:
Eric Kwok SC and Francis Cheng, instructed by the Department of Justice, for the HKSAR David Ma and Winson Yung, instructed by Ho, Tse, Wai & Partners, assigned by the Legal Aid Department, for the 1st Defendant Thomas Iu and Baltic Cheng, instructed by Fan Wong & Tso, assigned by the Legal Aid Department, for the 2nd Defendant Jon Wong and Breanne Kwok, instructed by Sanny Kwong & Co., assigned by the Legal Aid Department, for the 3rd Defendant Douglas Kwok and Marco Li, instructed by Bond Ng Solicitors, assigned by the Legal Aid Department, for the 4th Defendant Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law. [1] Cap. 245, Laws of Hong Kong. [2] [1974] 59 Cr App R 120. [3] See the 2nd alternative set out in Kulemesin v HKSAR (2013) 16 HKCFAR 195, see para 23 below. [4] (2013) 16 HKCFAR 195. [5] S. 39 of Offences against the Person Ordinance, Cap. 212, Laws of Hong Kong, see DPP v Parameter [1992] 1 AC 699. [6] [1995] 1 HKCLR 251. [7] See footnote 2. [8] [2010] 2 HKLRD 826. [9] See footnote 2. [10] See footnote 4. [11] See footnote 8. [12] See footnote 4. [13] i.e. “actus reus”. [14] [1992] 1 AC 699. [15] See footnote 8. [16] (1974) 59 Cr App R 120, 127. [17] See para 4 above. [18] [2012] 5 HKLRD 556. [19] As Lam VP then was. [20] For example, To Kwan Hang [1995] 1 HKCLR 251 and Leung Kwok Wah [2012] 5 HKLRD 556. [21] See footnote 2. [22] See para 8 above. [23] See footnote 6. [24] See footnote 18. [25] See footnote 8. [26] See footnote 4. [27] [1970] AC 132. [28] See footnote 8. [29] See footnote 4, paras 63, 92 and 93 of the judgment. [30] The original text is “deliberate and recklessly”. [31] See footnote 8, para 42 of the judgment. [32] (1985) 157 CLR 523, 568-571. [33] See footnote 4. | ||||||||||||||||||||||||||||||||||||||||||
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