HKSAR v. Chow Hang Tung (鄒幸彤)

FAMC No. 2 of 2023

[2023] HKCFA 14

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2023 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 51 OF 2022)

________________________

________________________

________________________

DETERMINATION

________________________

The Appeal Committee :

1.The Commissioner of Police prohibited the holding of a 4 June meeting at Victoria Park in 2021 on grounds relating to public health during the COVID pandemic. The organisers’ appeal to the Appeal Board was dismissed. Those decisions were made public.

2.The respondent then published posts on her Facebook and Twitter accounts as well as a newspaper article in Ming Pao criticising the decisions and, so the court found, encouraging attendance at the prohibited meeting. She was convicted by the magistrate of incitement to knowingly take part in an unauthorised assembly and sentenced to 15 months’ imprisonment.

3.Her appeal was allowed by Barnes J on the basis that the lawfulness of the decision of the Commissioner was an essential element of the offence and that it was open to the respondent to challenge its legality by way of defence. Her Ladyship accepted the defence argument that the decision was an unlawful and disproportionate interference with the respondent’s fundamental rights to freedom of expression and assembly, the Commissioner and the Appeal Board not having given proper consideration to the feasibility of permitting the meeting to take place while imposing appropriate conditions. The Judge accordingly quashed the conviction and sentence.

4.On the application by the Secretary for Justice (not resisted by the respondent), the Judge certified the following points of law for the purposes of an appeal to this Court:

“(1) In a prosecution for an offence of incitement to knowingly take part in an unauthorized assembly contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221, is it open to a defendant to raise by way of defence the legality of the police’s prohibition of the subject public meeting which was subsequently upheld by the Appeal Board on Public Meetings and Processions (‘the Appeal Board’)?

(2) In the event that the answer to the above question is in the affirmative, what is the correct approach that the court should take in considering a defendant’s challenge to the legality of the police’s prohibition and of the subsequent determination by the Appeal Board?”

5.Leave to appeal is not resisted by the respondent save in respect of the application made on the substantial and grave injustice basis. At the hearing, Mr Tam SC did not press that aspect of the application.

6.We are satisfied that the questions certified are of the requisite public importance and grant leave to appeal on that basis. We refuse leave to appeal on the substantial and grave injustice ground.

7.The appeal will be listed for hearing on 22 November 2023.

Mr William Tam SC, DDPP and Mr Edward Lau, SPP, of the Department of Justice, for the Respondent (Applicant)

Mr Robert Pang SC and Mr Chris Ng, instructed by Cheng & Co., for the Appellant (Respondent)