Read the full judgment text of DCCC 536/2020 on BabelCite. This District Court judgment was delivered on 1 April 2021 before A J Woodcock.
Criminal law – Public Order Ordinance – sections 13, 17, 17A(2)(a), 17A(3)(a) and 17A(3)(b)(i) – organising an unauthorised assembly – knowingly taking part in an unauthorised assembly – CHRF public assembly in Victoria Park and proposed public procession to Chater Road on 18 August 2019 – Letter of No Objection granted for Victoria Park assembly only – objection to procession upheld by Appeal Board on 16 August 2019 – defendants' procession along same route at same time as banned procession – whether defendants organised the public procession – 'organise' as the person who directs the route of a procession following Flockhart v Robinson (1950) 2 KB 498 – banner party leading procession from Gate 17 of Victoria Park to Chater Road – whether defendants knowingly participated in an unauthorised assembly – wide press coverage of police objection and warning that participation would be a criminal offence – whether defendants had lawful authority or reasonable excuse – police's conscious decision not to deploy visible officers on the day for public safety reasons – whether police tacitly consented to the procession – whether the procession was a 'water flow' dispersal plan or a planned defiance of the ban – whether defence of necessity/duress of circumstances available – no imminent risk of death or serious physical injury – necessity not available – constitutional challenges – systemic challenge to s.17A(3) POO – binding precedent of Court of Final Appeal in Leung Kwok Hung 2005 – stare decisis – operational proportionality challenge – Leung Kwok Hung (No 2) 2020 – operational proportionality applies only to concrete enforcement actions on the day that restrict the exercise of rights of assembly – decision to prosecute governed by Basic Law Article 63 – judicial review of prosecutorial decisions only in extremely limited circumstances (RV v Director of Immigration) – trial court's function is to try the case on the evidence – disruption to traffic and public transport in densely populated Hong Kong relevant – Kudrevicius v Lithuania – Hysan Development four-step proportionality test – Yeung May Wan & Ors v HKSAR – DPP v Ziegler – James v DPP – In the Matter of the Application of Mr David Perry, QC (2021) HKCFI 113 – Li Defan v HKSAR on good character and burden of proof – all defendants (D1, D2, D3, D4, D5, D6 and D8) convicted of both charges – constitutional challenges dismissed – systemic challenge precluded by Court of Final Appeal authority – operational challenge fails as no arguable ground raised.
Legal issues: Whether defendants organised an unauthorised public assembly · Whether defendants knowingly took part in an unauthorised assembly · Whether defendants had lawful authority or reasonable excuse · Whether defence of necessity/duress of circumstances is available · Whether s.17A(3) POO is unconstitutional (systemic proportionality challenge) · Whether arrest, prosecution and conviction are disproportionate (operational proportionality challenge)
Outcome: All defendants (D1, D2, D3, D4, D5, D6 and D8) found guilty of both Charge 1 (organising an unauthorised assembly) and Charge 2 (knowingly taking part in an unauthorised assembly) contrary to sections 17A(3)(b)(i) and 17A(3)(a) of the Public Order Ordinance. The systemic and operational constitutional challenges were both rejected.
Cited by 51 cases · Cites 1 case