R. v. To Kwan Hang and Another
Read the full judgment text of HCMA 945/1993 on BabelCite. This High Court CFI judgment was delivered on 9 September 1994.
1. The appellants were convicted after trial before Mr A.R. Wright at Eastern Magistracy of the offence of taking part in an unlawful assembly contrary to section 18(1) of the Public Order Ordinance, Cap.245.
|
HCMA000945/1993 IN THE COURT OF APPEAL 1993, No. 945 Magistracy Appeal _________________
_________________ Coram: Hon. Macdougall, V-P, Litton and Bokhary, JJ.A. Date of hearing: 24 August 1994 Date of delivering judgment: 9 September 1994 _________ JUDGMENT _________ Macdougall, V-P: 1. The appellants were convicted after trial before Mr A.R. Wright at Eastern Magistracy of the offence of taking part in an unlawful assembly contrary to section 18(1) of the Public Order Ordinance, Cap.245. 2. They appealed against their convictions. On the date set down for the hearing Jones J ordered, pursuant to section 118(1)(d) of the Magistrates Ordinance, Cap.227, that the appeal be reserved for the consideration of this Court. 3. The convictions arose out of an incident which occurred in the early hours of the morning of 5 June 1992, when, after having held a protest meeting in Victoria Park, some 200 students marched through the streets to Queen's Road East for the purpose of demonstrating outside the New China News Agency building. 4. Senior Superintendent Lam Kin, the District Commander, Wanchai Division, who had been informed at about 9.50 pm that evening that it was expected that there would be a march to and demonstration outside the New China News Agency building, made arrangements for groups of police officers to be present at or nearby the building. 5. Shortly after 11 pm he saw some 40 demonstrators arrive on the pavement outside QE Stadium on the northern side of Queen's Road East and opposite the New China News Agency building. In anticipation that they would cross Queen's Road further to the west, where there was no central divider in the dual carriageway, and then approach the building from that direction, he ordered that Mills barriers be erected across both the southern footpath and the southern carriageway of Queen's Road East at a point where a permanent footpath railing outside the building ended. This was approximately at the western end of the New China News Agency building. 6. When the demonstrators arrived at the Mills barriers they requested permission to enter that area on the southern side of the carriageway and immediately in front of the building which, because of the placement of the Mills barriers and the location of the carriageway divider, had effectively been cut off to all traffic, vehicular or pedestrian, that might seek to approach from the west. They were told that it was police policy to allow only small groups of 19 or less at one time to enter the controlled area in order to make their demonstration. However, they refused to accept this restriction and, after some chanting and protestation, left the scene. The barriers were then removed and traffic flow restored. 7. At about 12.30 am some 200 demonstrators arrived by taking the same route as that used by the earlier group. The Mills barriers were then erected in the same place as before. The demonstrators demanded access to the controlled area. Again the police policy was explained to them. On hearing this the demonstrators became agitated. Some of them became rowdy and emotional. 8. After repeated warnings that they were assembling unlawfully and should disperse, the protesters sat down in the southern carriageway of Queen's Road East to the west of the Mills barriers and began discussing what course of action they should adopt. They eventually fell into three groups, the first of which favoured compliance with the police policy, the second, which favoured staging a 'sit-in' until the police took action to remove them, and the third, which favoured rushing the police line. 9. At about 2 am a demonstrator surnamed Yeung approached the District Commander and told him that the first group would comply with police policy. As a result, 41 demonstrators in three separate groups were allowed to enter the controlled area. Having assembled on the carriageway immediately outside the front entrance to the New China News Agency building, they made their protest and left the scene. 10. It became apparent to the District Commander, however, that the remaining demonstrators, most of whom had by now risen to their feet, were in an emotional state. Sensing from their behaviour that they were preparing to rush the police line, he summoned police reinforcements from nearby. 11. The demonstrators then began pushing at the Mills barriers. Following a fruitless police warning to the demonstrators that they should disperse, there was increased agitation and pushing at the barriers as a result of which some of the barriers were lifted up and part of the iron railing on the permanent carriageway divider was broken down. Some of the demonstrators began throwing various articles. Then, amidst chanting and shouting, there was a concerted rush on the police line. In the course of the ensuing confrontation 31 police officers sustained injury, and damage was done to police uniforms and items of police equipment. Four protesters managed to force their way through the barriers and the police line that had formed immediately behind them and ran towards the entrance of the New China News Agency, while two others approached from the east. All six were apprehended and taken to a nearby police post. 12. After this unruly behaviour had continued for about ten minutes, a young woman, who ultimately became a defendant but was acquitted, and the 1st appellant approached the District Commander and demanded that the six persons be released. Both were taken to the police post to see the six and were told that once the situation came under control they would be released. The District Commander requested the young woman and the 1st appellant to assist them in calming the crowd of demonstrators. 13. Shortly afterwards the situation became less tense and the Mills barriers were reset. The six apprehended persons were released and allowed to rejoin the other demonstrators who then held a meeting and finally dispersed at about 3.45 am without further incident. No notification had been given to the Commissioner of Police of the intention to hold a public meeting outside the New China News Agency building nor had any application been made to him for a licence to hold a procession. Indeed no formal notification was given to the police that a procession was to be held. 14. Evidence was given concerning the roles played by the appellants during the course of the incident, and that they had both participated in the rush on the police line in an attempt to break through the cordon. This was not disputed at the hearing of this appeal. 15. The relevant part of section 18(1) of the Public Order Ordinance reads as follows:
I at once observe that, in my view, it is clear that where three or more persons conduct themselves in one of the manners described in the sub-section, it is they, not other members of their group who do not so conduct themselves, who become an unlawful assembly. 16. The submissions made in this Court by Mr Martin Lee, who also appeared for the appellants in the court below, may be reduced to these: 17. First, the magistrate erred in law in holding that section 18 of the Public Order Ordinance was consistent with Article 17 of the Bill of Rights. 18. Second, assuming that the first submission is wrong, the magistrate erred in holding that the police had the legal power to cordon off the area outside the New China News Agency at the material time and that in doing so were not acting contrary to the Bill of Rights. 19. Third, the magistrate erred in finding that the conduct of the appellants was such as would "cause any person reasonably to fear that the persons so assembled will commit a breach of the peace" or provoke others into doing so, but that, even if their conduct was provocative or disorderly, there was no evidence that, in the circumstances of the case, it was likely to cause any person in the vicinity reasonably to fear that a breach of the peace would be committed. There was a degree of overlapping of the arguments that were addressed in support of these grounds. 20. ` Mr Lee sought to support his first submission by a number of decisions in other jurisdictions. These all related to entirely different factual situations which occurred in the context of statutory provisions different from those of section 18 of the Public Order Ordinance. 21. I readily accept, as was stated in R v Sin Yau-ming [1992]1 HKLR 127, that the Hong Kong Bill of Rights Ordinance is a constitutional instrument and that, in particular, that part of it which entrenches fundamental rights and freedoms must be given a generous and purposive interpretation. Moreover, in interpreting the Ordinance, this Court must have regard to the aims of the International Covenant of Civil and Political Rights and give full recognition and effect to the preamble in that Covenant. 22. However, I think it pertinent to refer to the following passages at page 9 of the judgment of the Privy Council delivered by Lord Woolf in the subsequent case of AG of Hong Kong v Lee Kwong-kut, Privy Council appeal No.59 of 1992:
and
Article 17 of the Hong Kong Bill of Rights Ordinance provides:
23. I can find nothing in section 18 of the Public Order Ordinance which is inconsistent with Article 17. Giving Article 17 a wide and purposive interpretation, it is impossible to say that it was intended to confer a right of assembly on those who conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that those so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace. The opening words of Article 17 speak for themselves, "The right of peaceful assembly shall be recognised." (Emphasis supplied) As is to be expected in a democratic society, it is only the right of peaceful assembly that is protected. I think that the position is so clear that no further comment is necessary. 24. I now turn to Mr Lee's second submission that the police acted illegally in erecting the Mills barriers and cordoning off the area to which I have referred and that, in doing so, they provoked the demonstrators, who hitherto had been behaving in a peaceable manner, to take action to exercise their right of peaceful assembly immediately outside the front entrance to the New China News Agency and chant their slogans and wave their fists. 25. I emphatically reject this contention. The duties of the police are clearly set out in section 10 of the Police Force Ordinance, Cap.232, the relevant parts of which are as follows:
26. Every duty carries with it the power to perform that duty. Section 39(1) of the Interpretation and General Clauses Ordinance, Cap.1 provides:
27. The protesters had assembled initially in Victoria Park and later in Queen's Road East outside the New China News Agency building to protest against the action taken by the government of the People's Republic of China in Tiananmen Square on 4 June 1989. It need hardly be stated that the events at which the protest was directed gave rise to very strong emotions. Although the assembly had been conducted in a peaceable manner at Victoria Park and during the course of the procession to Queen's Road East, it requires little imagination to realise that emotions would be further intensified when the demonstrators had assembled outside the New China News Agency building, which houses the de facto representatives and their staff of the very government which the protesters fervently believed had committed atrocities in Tiananmen Square. 28. I think it important to observe that the District Commander did not prevent protesters from demonstrating outside the front entrance of the building. It is plain that Mr Yeung's party of protesters had been permitted to enter the controlled area in groups of no more than 19 at one time to make their protests outside the front entrance. Had the other protesters been willing to carry out their protests in similar groups they would have been permitted to do so. They were not prevented from making their protests. They were merely prevented from demonstrating in one large group in the precise location at which they wished to protest. 29. The District Commander acted entirely within the powers conferred on him by section 10 of the Police Force Ordinance. No valid criticism can be made of his decision to limit the number of protesters demonstrating at any one time directly outside the front entrance to the building. A balance had to be achieved between allowing a protest to be made on the one hand and ensuring safety to persons and property on the other. 30. Mr Lee complains that the behaviour of the protesters had been peaceable until they found their way obstructed by the Mills barriers and were met with the refusal of the District Commander to permit them to demonstrate in one large body directly outside the main entrance. He contended that had they been allowed to protest in the manner and place which they wished there would have been no violent incident. That, of course, was entirely possible. But it must also be remembered that no application had been made, as it should have been, for this procession to take place. The organisers had already demonstrated that they were prepared to conduct the procession and hold the assembly without first giving the notice of intention and obtaining the licence required under sections 8 and 13 respectively of the Public Order Ordinance. Putting the most favourable interpretation on their actions, it seems that they had taken it upon themselves to decide that these sections had been repealed by the Hong Kong Bill of Rights Ordinance. The emotional climate that undoubtedly exists when protesters assemble in large numbers inherently has a potential for generating an outbreak of violence. The risk that unruly elements may be present with the very object of fomenting violence cannot be overlooked. Mr Lee, himself, readily admitted that this was so. Indeed, one of his central submissions was that it was incumbent on the police to ensure that trouble-makers did not disrupt the orderly conduct of a procession or assembly. 31. Had the entire body of protesters been permitted to congregate on the footpath and carriageway at the very threshold of the main entrance to the building, as Mr Lee submitted they should have been allowed to do, and had a violent incident then been sparked off, either by over-emotional protesters or unruly elements bent on creating a disturbance, the police would have been gravely handicapped in their efforts to restore order. 32. I find no merit in the contentions that the protesters were provoked by the District Commander's decision into rushing the police line in order to enforce their perceived right to assemble wherever they wished, and that they exercised only reasonable force in so doing. The protesters had no right to resort to violence. Moreover, the fact that 31 police officers were injured in the rush on the police line clearly refutes any suggestion that reasonable force was exercised by the protesters. 33. Lastly, there was evidence, which the magistrate accepted, that both appellants took part in the rush on the police line. I reject the contention that he erred in finding that their conduct was such as would cause any person reasonably to fear that the persons so assembled would commit a breach of the peace or provoke others into doing so. Equally I do not accept the submission that, even if their conduct was provocative or disorderly, there was no evidence that, in the circumstances that then prevailed, it was such as to cause any person in the vicinity reasonably to fear that there would be a breach of the peace. 34. It was not necessary for the prosecution to call civilian bystanders to testify that they had been in fear that there would be a breach of the peace. The evidence given by the police was sufficient to establish that the events which they described were likely to cause not only bystanders who were not participants in the assembly but also those in the assembly who were not in favour of a rush on the police line and wanted to stage a sit-in, to have a reasonable fear that a breach of the peace would be committed. I would therefore dismiss these appeals. Litton, J.A.: 35. I agree with the judgment delivered by my Lord the Vice-President and have nothing to add. The appeals must be dismissed. Bokhary, J.A.: 36. I begin by thanking counsel on both sides for their assistance. The cordon 37. A group of demonstrators faced a police cordon. The cordon consisted of a line of Mills barriers manned by uniformed police officers. 38. There is nothing to suggest that the demonstrators' ability to make their point was diminished by their remaining outside the cordoned-off area. Nevertheless, they wished to enter that area. And the argument advanced on their behalf is that there was no justification in law for preventing them from entering it. In a free society, such an argument demands careful consideration. Indeed, it demands benevolent consideration. 39. It is not suggested that the police can never lawfully establish any cordon. Rather, it is argued that this one was unlawful. The duties and powers of the police 40. The police force in Hong Kong is a creature of statute. Its duties are set out in section 10 of its statute, the Police Force Ordinance, Cap. 232. The opening words of the section are: "The duties of the police force shall be to take lawful measures for -". Then follows a long list of things set out in 18 items designated (a) to (r). Must be Bill consistent 41. Before coming to any of those items, two things should be said about those opening words. First, the duty to take any lawful measure must by necessary implication import the power to take such measure. The police force is not there to have its duty. It is there to do its duty. Secondly, the meaning of the word "lawful" includes being consistent with the Bill of Rights. Carefully defined 42. While police officers are required to exercise judgment, it is necessary that the powers within the ambit of which they are to exercise that judgment be carefully defined. What is not permissible under our constitutional set-up is that police powers take on the character of what Mr Justice Harlan of the United States Supreme Court described in his concurring judgment in Gregory v. Chicago 394 US 111 at p. 129 as an "ambulatory sweep". I proceed with that at the forefront of my thinking. Section 10 43. Three items of section 10 are relevant to the lawfulness or otherwise of the cordon here in question. They are:
Article 17 44. All of that is to be read subject to article 17 of the Bill of Rights. The article provides that:
Peaceful 45. The right is of peaceful assembly. No one can begin to suggest that items (a) or (c) of section 10 are Bill inconsistent. A right of peaceful assembly is not infringed by the police doing their duty to preserve the public peace and to prevent injury to life and property. On the contrary, the right would be put in peril if the police were to refrain from doing that duty. 46. Item (e) is also Bill consistent. Section 3(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383, provides that all pre-existing legislation which admits of a Bill consistent construction shall be given such a construction. Item (e) certainly admits of such a construction. Indeed, it admits of none other. By its nature and context, the duty and power in item (e) to regulate processions and assemblies is necessarily confined to regulating them only to the extent necessary to keep them peaceful and reasonably safe. Peaceful and reasonably safe 47. Keeping an assembly peaceful is, by definition, no restriction on the right of peaceful assembly. And keeping it reasonably safe is a permitted restriction, if it be in truth a restriction at all. Good faith 48. Upon a fair reading of the evidence, it is clear that the police established the cordon with a view to carrying out their duties under items (a), (c) and (e) of section 10. There is no basis for impeaching the police's good faith. Two things 49. Is there any basis for impeaching their judgment? In answering such a question, two things have to be borne in mind. One is that, freedom being involved, the courts must scrutinize the conduct of the police with care. The other is that, careful as such scrutiny must be, the courts should not carry it to the length of "second-guessing" the police on operational matters. 50. Looking at the whole of the evidence with those two things in mind, there is no basis for impeaching the police's judgment either. The crowd was large. Its feelings were strong. Letting it press right up against a building which was the focal point of those feelings may or may not have resulted in people being hurt. But the risk existed. It was rational and realistic for the police to take it seriously. And the establishment of the cordon in question was a proportionate response to it. The cordon was lawful 51. The cordon was, it is therefore clear, a lawful one. The conditions 52. I revert now to the time when the demonstrators faced the cordon. Some accepted the conditions laid down by the police for regulating their entry into the cordoned-off area, the essence of which was that they should do so in groups of less than 20. Others did not accept those conditions. Those who did, made their demonstration in three groups of 19, and then left. Those who did not, remained. The storming of the cordon 53. The remaining group became increasingly agitated. One of its members addressed the rest of the group by the use of a loud-hailer. The message was that they would rush the cordon. With a roar, they did so. At the height of the encounter, there was so large and determined a group attempting to break through the cordon, that the police had to man the Mills barriers in a row some four or five officers deep. That phase of the encounter lasted some two or three minutes. The whole of the attempt to break through the cordon lasted some ten minutes. 54. In the course of that attempt: some of the Mills barriers were lifted; part of the central divider of the road was broken; things were thrown at the police; there was chanting and shouting; and both police officers and demonstrators fell to the ground. Indeed, the storming of the police cordon succeeded to the extent that four demonstrators did manage to break through it. The appellants were active 55. Both appellants were active members of the group which rushed the cordon and struggled with the police to break through it. Primary facts found 56. All those primary facts the Magistrate was entitled on the evidence to find and did find. People were hurt 57. Lest it be thought that what happened was not really very serious, it should be mentioned that a lot of people were hurt. The Magistrate's note of the evidence of the senior officer present, the then District Commander of Wanchai, reads:
And, as Mr Lee for the appellants mentioned in the course of the argument, many demonstrators also were injured. Convicted 58. On those facts, the Magistrate convicted both appellants of the offence with which each of them was charged, namely, taking part in an unlawful assembly, contrary to section 18(1) of the Public Order Ordinance, Cap. 245. Section 18 59. Section 18 provides that:
A reasonable fear 60. The Magistrate was entitled to conclude beyond reasonable doubt, as he did, that the group of which the appellants were active members constituted three or more persons assembled together. That is obvious. He was likewise entitled so to conclude, as he did, that, in rushing the cordon as they did, the persons forming that assembly had conducted themselves in a disorderly manner. That, too, is obvious. 61. Was he entitled so to conclude, as he did, that the assembled persons' conduct was likely to cause a reasonable person to fear that they would commit a breach of the peace? Commit a breach of the peace 62. Before that question is answered, there is a term to be defined. The term is not simply "a breach of the peace". Rather, it is "commit a breach of the peace". In my judgment, someone commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property or which puts someone in immediate danger of injury or property in immediate danger of damage. 63. Once the demonstrators began their rush at the cordon, no reasonable person could entertain any real expectation either that the demonstrators would stop in mid-rush or that the police would abandon their cordon. So once the rush began, a violent clash and struggle between the demonstrators and the police is what any reasonable person would apprehend. And he would undoubtedly fear that personal injury and property damage would result from such clash and struggle. 64. There were onlookers present when the demonstrators rushed the police. No onlooker was called to say that, upon seeing the demonstrators began their rush at the police, he feared a breach of the peace. But it was not necessary to call any onlooker to say that. Taylor v. DPP (1973) 57 Criminal Appeal Reports 915, a case before the House of Lords, was one of affray, which offence consists in two or more persons fighting to the terror of the Queen's subjects, by which expression is meant ordinary people. At p. 928, Lord Reid said :
If that objective test arises even in respect of the concept "to the terror of" and it is clear that it does - then it is all the more clear that it arises out of the words in section 18 "likely to cause any person reasonably to fear." The word "likely" leaves no room for argument to the contrary. 65. Accordingly, the answer to the question whether the Magistrate was entitled to conclude beyond reasonable doubt, as he did, that the assembled persons' conduct was likely to cause a reasonable person to fear that they would commit a breach of the peace, is "yes". 66. That being the case, these convictions must stand unless Mr Lee succeeds on what he puts forward as his main point. A note of caution 67. Before coming to that point, however, I sound this note of caution. The fact that I have entertained the question of whether or not the cordon in this case was lawful should not be taken as implying that I am deciding that storming an unlawful police cordon is something which can be done with legal impunity. Has section 18 been Bill repealed? 68. Mr Lee's main point is that the section under which the appellants were convicted, section 18 of the Public Order Ordinance, Cap. 245, has been repealed by section 3(2) of the Hong Kong Bill of Rights Ordinance, Cap. 383, for inconsistency with the Bill of Rights. Now that the prosecution relies solely on the police's powers under the Police Force Ordinance, Cap. 232, for the establishment of the cordon here, the question whether any other provision of the Public Order Ordinance, Cap. 245, has been so repealed no longer arises for decision in the present case. 69. The least serious conduct caught by the wording of section 18 is insulting or provocative (even though neither disorderly nor intimidating) conduct on the part of the assembled person likely (even though not intended) to cause a reasonable fear that others will be provoked to commit a breach of the peace (even though not that the assembled persons themselves will commit one). 70. But that does not mean that persons who assemble together for an innocent purpose and conduct themselves in a peaceable manner are turned into an unlawful assembly by the presence of others who take such unreasonable offence at what the assembled persons say or stand for that onlookers reasonably fear an attack by the unreasonable persons on the innocent and peaceable ones. The unlawfulness would not be that of the assembled persons. That is clear from the well-known decision of the Divisional Court in Beatty v. Gillbanks (1882) 9 QBD 308. That case concerned the Common Law offence of unlawful assembly. And it is true that, as a matter of wording, the Common Law definition of that offence appears narrower than the definition in section 18. But the principle survives the difference, and holds good for present purposes. 71. For the sake of completeness, it should be remembered that the persons assembled in Beatty v. Gillbanks (supra) were members of the Salvation Army, an organization very different from the one in an example cited by Prof. Manfred Nowak in his book U.N. Covenant on Civil and Political Rights : CCPR Commentary (at p. 374 n 19) of "a quiet, orderly march of Ku Klux Klansmen through the streets of Harlem [being] not a peaceful assembly." Where such an organization is concerned, it might be readily inferred that it intended to provoke a breach of the peace. In that case, its purpose would not be innocent. Section 18 is Bill consistent and remains in force 72. That being the position - and bearing in mind the meaning which I attribute to the term "commit a breach of the peace" - it is clear that section 18 does not purport to outlaw any peaceful assembly. The whole of section 18 is Bill consistent, and remains in force. 73. If so much of the section as pertains to what I have identified as the least serious conduct caught by its wording were Bill inconsistent, then the question would have arisen whether that part of the section could be severed from the rest of the section, leaving the same on foot. As it is, however, the question does not arise. Result 74. In the result, I, too, would dismiss these appeals. However ... 75. However, before parting with this case, I wish, for my own part, to say that, lest their convictions cause the appellants undue difficulty in later life, it is right to recognize that perhaps what carried them over to the wrong side of the law were their emotions - on an occasion when, quite clearly, emotions were running very high.
Representation: Mr S.R. Bailey for Crown Prosecutor Mr Martin Lee, QC, Mr H.L. Wong and Mr J. Chan (M/s Chui & Lau) for Appellants |