Read the full judgment text of FACC 2/2021 on BabelCite. This Court of Final Appeal judgment was delivered on 16 July 2021 before 張舉能, 李義, 霍兆剛, 司徒敬, 范禮全.
Criminal law – unlawful assembly – Public Order Ordinance (Cap 245) s.18(1) and (3) – mens rea – statutory interpretation – Kulemesin v HKSAR (2013) 16 HKCFAR 195 five scenarios – Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 framework – intent limb and likely-to-cause limb – preventive public order offence – constitutional protection of peaceful assembly not engaged where violence or threats of violence involved – whether HKSAR v Leung Tin Kei [2018] HKCFI 2715 should be followed – appeal against conviction arising from appellant's attempted forcible entry into LegCo meeting room and pushing against security cordon for 20 minutes causing injuries – whether certified question of law whether first, second or fifth Kulemesin scenario applies to the "likely to cause" limb of s.18(1) – held that the fifth Kulemesin scenario applies, mens rea required for elements of three or more persons assembling and engaging in prohibited conduct, but not for the objective likely consequence of reasonably causing fear of breach of the peace – offence not properly labelled as strict or absolute liability because significant mens rea elements remain – Leung Tin Kei overruled on this point – appeal dismissed – original sentence of 4 weeks' imprisonment stands.
Legal issues: Application of Kulemesin scenarios to the "likely to cause" limb of s.18 POBO · Whether HKSAR v Leung Tin Kei should be overruled
Outcome: Appeal against conviction unanimously dismissed by the Court of Final Appeal.
Cited by 28 cases · Cites 11 cases