Read the full judgment text of FACC 9/2023 on BabelCite. This Court of Final Appeal judgment was delivered on 25 January 2024 before Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ, Mr Justice Gleeson NPJ.
Criminal law – public order – incitement to knowingly take part in unauthorized assembly – common law and section 17A(3)(a) of the Public Order Ordinance (Cap 245) – appeal from HCMA 51/2022 – facts: on 4 June 2021, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China intended to hold a public meeting at Victoria Park to commemorate the 32nd anniversary of the '4 June incident' during the COVID-19 pandemic – revised notification reduced expected participants to 40,000–60,000 and shortened the meeting to 8 pm–10 pm – Commissioner of Police issued prohibition under s.9 POO on 27 May 2021 citing public safety, public order and pandemic concerns – Appeal Board on Public Meetings and Processions dismissed the Alliance's appeal on 29 May 2021 – respondent Chow Hang Tung, Vice Chairman of the Alliance, published posts on Facebook and Twitter on 29 May 2021 and a newspaper article on 4 June 2021 encouraging attendance at the prohibited meeting – charged with incitement punishable under s.101I of the Criminal Procedure Ordinance (Cap 221) – whether a defendant in a prosecution under s.17A(3)(a) POO may mount a collateral challenge to the validity of a police prohibition upheld by the Appeal Board – question of statutory construction of the offence-creating provision – whether the validity of the administrative act is an essential element of the offence or available statutory defence – no – the legislative scheme, comprising an elaborate notification regime, a Commissioner of Police power to prohibit on specified grounds, a specific right of appeal to an independent Appeal Board chaired by a retired judicial officer, the requirement under s.44A(6) that appeals be determined 'with the greatest expedition possible' before the date of the proposed meeting, and the express finality provision in s.44A(7), manifests a clear legislative intent that the only avenue for challenging the substantive validity of a prohibition is by way of judicial review – presumption against depriving a defendant of the right to challenge the validity of an administrative act on which an offence is based (per Boddington v British Transport Police [1999] 2 AC 143; Lord Hoffmann in R v Wicks [1998] AC 92) is rebutted by the strongly time-sensitive, certainty-oriented statutory scheme which would be defeated by collateral challenge – construction: 'prohibited by the Commissioner of Police under section 9' in s.7(1)(b) refers to a formally valid prohibition which has not been quashed on appeal or judicial review; 'without lawful authority or reasonable excuse' in s.17A(3)(a) does not encompass the mere fact that the prohibition may be liable to be quashed by judicial review on conventional or constitutional grounds – distinction between organisers and mere intending participants is immaterial: both may apply for judicial review and a defendant arrested or prosecuted may seek an adjournment pending the outcome – whether the analysis differs where the challenge is founded on constitutional grounds (fundamental rights to freedom of assembly, expression and demonstration under the Hong Kong Bill of Rights Ordinance (Cap 383)): no – the same principles of statutory construction apply – the POO notification regime, whose operative grounds in ss.9(1) and 9(4) closely track the language of Article 17 of the Hong Kong Bill of Rights, was upheld as a proportionate restriction on freedom of assembly in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 and is therefore inherently proportionate – the only avenue for challenging a particular prohibition's substantive validity is judicial review – fact-specific 'operational proportionality' assessments in individual criminal trials are not required (James v Director of Public Prosecutions [2016] 1 WLR 2118; In re Abortion Services (Safe Access Zones) (NI) Bill [2023] AC 505) – direct constitutional challenge against the offence-creating provisions themselves was not mounted and would, if raised, have to be determined by the criminal court – appeal allowed, conviction restored, appeal against sentence remitted to the judge for determination – original sentence of 15 months' imprisonment imposed by the magistrate had been quashed on appeal to the Court of First Instance ([2022] HKCFI 3692).
Legal issues: Collateral challenge to validity of prohibition in s.17A(3)(a) prosecution · Constitutional challenge to prohibition in criminal proceedings
Outcome: Appeal allowed by the Court of Final Appeal unanimously (Chief Justice Cheung, Ribeiro, Fok and Lam PJJ, Gleeson NPJ); the respondent's conviction is restored and her appeal against sentence is remitted to the judge for determination.
Cited by 20 cases · Cites 8 cases