Chen Noel and Others v. HKSAR

FAMC000023/2003

FAMC No. 23 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 23 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 333 OF 2002)

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 28 May 2003

Date of Determination: 28 May 2003

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.The first question which the applicants wish to pursue before the Court of Final Appeal is a question of statutory construction. It concerns the true construction of s.10 of the Police Force Ordinance, Cap. 232. This section sets out the duties of the police force. The question of its construction comes to this. Is the police force's duty to preserve order in public places limited to preserving the public peace? The applicants contend for an answer in the affirmative.

2.Now the very first duty laid down in s.10 is the duty to take lawful measures for "(a) preserving the public peace". This is followed by a number of other duties including the seventh one, which is to take lawful measures for "(g) preserving order in public places and places of public resort, at public meetings and in assemblies for public amusements". If the construction of s.10 contended for by the applicants is right, the seventh duty would be empty. In our view, the question of statutory construction put forward by the applicants is not reasonably arguable.

3.This leaves the applicants' alternative question, which comes to this. If the true construction of s.10 is not limited as they contend, would item (g) thereof then be unconstitutional? The applicants contend that it would then be unconstitutional. In our view, it is not reasonably arguable that our constitution leaves people as inadequately protected from public disorder as they would be if the police did not have the duty contained in s.10(g).

4.Under the statute people clearly have the right ? which it is clear that the constitution does not take away ? to be protected not only from breaches of the peace but also from public disorder.

5.Despite the skill with which the applicants' counsel has argued this application, we find no basis for certifying any question or giving leave to appeal in the present case. This application is therefore dismissed.

Representation:

Mr Philip Dykes SC (instructed by Messrs Tang, Wong & Cheung and assigned by the Legal Aid Department) for the applicants

Mr Kevin Zervos SC and Mr Simon Tam (of the Department of Justice) for the respondent