Chow Shui and Others v. The Queen

CACC000355/1979

-----------------

Coram: Cons, J.

Date of Judgment: 27 April 1979

-----------------

JUDGMENT

-----------------

1. The present appellants were among some sixty-seven persons who were, on the 13th February this year, convicted of unlawful assembly by the learned magistrate sitting in Causeway Bay Magistracy. Fifty-six of those persons were given an absolute discharge with no conviction recorded. The remaining eleven were conditionally discharged and bound over in a small sum of money to keep the peace for eighteen months. The magistrate appears to have drawn the distinction upon whether the particular person did or did not live upon a boat in Yaumati Typhoon Shelter. Persons who do so live are aggrieved by the manner in which the Government is dealing with their claim to be rehoused on land. It was the combined attempt of those sixty-seven persons and others to present a petition to His Excellency the Governor on this matter that led to the prosecution for unlawful assembly. The eleven persons who were bound over and six others have appealed against their convictions.

2. At lunch time on the 7th January this year two yellow motor coaches were seen waiting by the Tai Kok Tsui Ferry Pier in Yaumati. At about 1.25 p.m. people began to arrive, in groups of seven or eight, mostly women and children. They boarded the coaches, apparently under the direction of one particular lady. By about 2.00 p.m. the first coach was full and the second was half full. The coaches drove off, eventually passed through the Cross Harbour Tunnel and reached the tunnel exit area on the island side. There they were stopped by the police. A Chief Inspector boarded the first coach and asked who was leading the party. A young lady came from the second coach and said that she was. The Inspector asked if she had a licence for the procession. She replied that she had not. The police explained to those in the coach that without a licence the procession was unlawful and that they should disperse and leave the area; otherwise they would be breaking the law and would be liable to arrest. The Chief Inspector added to the young lady that two persons might deliver a petition to Flagstaff House but that the remainder must disperse. The same general warning was then given to those in the second coach. In that instance no person came forward as a leader. By this time it was 2.05 p.m. The persons in the coaches did not disperse. At 2.27 p.m. the Chief Inspector ordered the drivers of the two coaches to follow him to Central Police Station and he there formally arrested all the passengers.

3. The facts that I have just set out are taken directly from the evidence as it was recorded on the day of trial by the magistrate. That evidence was not challenged in any way whatsoever, although all defendants were represented by experienced counsel. I take all those facts therefore to have been established. I do not think it makes any difference that when the magistrate recited the evidence in his judgment delivered the morning after the trial he made two small factual errors. Nor that when he later prefaced that judgment with a formal introduction to provide the "Statement of Findings" required by this appeal, he limited his formal finding to the incident at the tunnel exit. For my own part I am inclined to think that such a formal introduction was not necessary. When a magistrate reserves his judgment in any particular case he will usually deal, when he delivers that judgment, with all matters that ought to be referred to in a statement of findings if one is required for appeal. The judgment will then in itself be sufficient.

4. The two small factual errors the magistrate made were that it was not the young lady from the second coach who told the Chief Inspector that they wished to deliver a petition to Flagstaff House; the Inspector knew it already and raised the subject himself. And the second was that the police did not warn the occupants of the coaches that "assembling" without a licence was unlawful; the warning related to "processing" without a licence. Neither error can possibly have or have had any effect on the substance of the case. A further complaint against the magistrate was that he relied upon inadmissible hearsay evidence to conclude that the occupants of the coaches had at one stage decided "to get out and go to Flagstaff House on foot". That complaint is misconceived. The magistrate was again slightly inaccurate. The evidence was that the occupants would first take the coaches to the Botanical Gardens and then walk. But the magistrate was quite right to admit that evidence. It explained why the Chief Inspector decided that the time had come to make an arrest.

5. I turn then to the question of whether these facts amount to unlawful assembly. I should immediately point out that I am not in this instance concerned with that kind of unlawful assembly which is proscribed by common law. That would presuppose conduct which might give rise to at least some fear of a breach of the peace. There was nothing like that here. The Crown was at great pains to emphasize that all the persons acted throughout in a quiet and orderly manner. The unlawful assembly with which I am concerned is a creature of statute and derives from the Public Order Ordinance, Cap. 245. The offence comes about in this way. Section 7 provides that no public meeting or public procession shall take place except by the previous licence of the Commissioner of Police. Certain exceptions are made by subsection (5) in respect of public entertainments and meetings held for purely social or religious purposes. Then section 12(2)(a) provides that where a public meeting or public procession which ought to be licenced takes place without a licence then the meeting or procession shall be deemed to be an unlawful assembly. Finally section 12(3) makes it an offence without lawful authority or reasonable excuse to take part in something that is so deemed to be an unlawful assembly.

6. Section 2 of the Ordinance is the usual interpretation section. By it "meeting" means "(a) any gathering or assembly of persons convened or organized for any purpose". Exceptions are made in favour of a public body and for the purpose of carrying out statutory duties or powers. "Public meeting" means any meeting held or to be held "in a public place" which is "any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, .......".

7. In the present instance the facts show a gathering or assembly of persons by the Tai Kok Tsui Ferry Pier. That I take to be a public place. It is immaterial that the persons gathered entered soon or even straightaway into the two coaches. They were still assembled and they were still in a public place. There is no suggestion that they came together by chance. It is clear from the circumstances that the assembly had been previously organized. It was thus a public meeting as defined by the Ordinance and should have been licensed by the Commissioner of Police. In the absence of that licence it was deemed to be an unlawful assembly.

8. The next stage is the movement of the assembly from Yaumati to the island. The Crown argued that this was a public procession. That is defined in the Ordinance as "any procession in, to or from a public place". Procession itself is not defined. Counsel for the appellants suggested that some extrinsic or outward manifestation of community, such as banners or painted slogans, is necessary before a succession of vehicles can properly be termed procession. I do not think I would go so far as that. There may be cases where the mere similarity, proximity or marked abundance of vehicles may in itself be sufficient. It is a question of fact to be decided according to the circumstances of each individual case. In the present instance I am not satisfied that the two coaches, whose only outward link was their similarity of colour, amounted to a procession. I might have thought otherwise if the organizers had themselves requested the motor cycle escort which the police provided or if they had notified the press in advance of their intentions.

9. I come then to the third stage, that is the position at the tunnel exit. As I see it there has been no basic change. The assembly is still the same assembly as it was in Yaumati, it has merely moved from one side of the harbour to the other. It is not uncommon for unlawful assembies to move around in this fashion. An example is the case of the flying pickets: R. v. Jones⁽¹⁾. The assembly did at this point grow very slightly larger. One more person joined in, the original Defendant No. 25. I do not see that that made any difference. An assembly of this size does not change in character merely because at some stage of its existence one or two persons leave or one or two more join. It is analogous to a long term conspiracy. The only change, as I see it, at this junction was that after the failure to heed the police order to disperse the assembly became deemed unlawful for a second time. That would be the effect of section 12(2)(c). But it took the matter no further. In my view the assembly still retained the unlawful character it had acquired at its inception.

10. It was argued that by putting its case in three stages, as counsel for the Crown did in effect in his opening before the magistrate, the Crown rendered its charge bad in law for duplicity. With respect I do not agree. The events of that day did not give rise to three separate transactions. They comprised one single continuous activity. They should therefore be charged as such: see Arch. 39th edition, para. 3573.

11. Counsel for the appellants has criticised the drastic nature of these provisions. If they are read as the magistrate read them, and as I read them, there must be, he points out, everyday hundreds of people taking part in unlawful assemblies. And in particular tourists who are taken by coaches on conducted tours. I think that must be so and that any police officer could, if he were so minded, exercise his power under section 11 to stop one of those tourist coaches and order the tourists inside to disperse. Fortunately experience shows that police officers do not in fact exercise their power in so cavalier a fashion. But the power is there. The words of the Ordinance are clear. I can see no other way in which to read them. Indeed no other way has been suggested.

12. Yet it is not in itself an offence to take part in such an unlawful assembly. It is only so if there is no lawful authority or reasonable excuse. The question of lawful authority does not arise in the present instance. Did the appellants then have reasonable excuse? The magistrate dealt with this aspect shortly. He appears to have taken the view that failure to heed the police warning disposed of any possible excuse. It was suggested that a genuine desire to present a petition does constitute a reasonable excuse. In my view, in the circumstances of this case, it does not. Firstly it is unnecessary to present the petition en masse. That could be done equally well by one or two representatives. Secondly the presence of the crowd would add nothing to the weight of the petition which would lie in the substance of its contents and the signatures attached. And thirdly there was no urgency or other reason which precluded the appellants from seeking a licence in advance. For these reasons I am satisfied that the magistrate came to a correct decision and the appeals are dismissed.

Representation:

Mr. Henry Litton, Q.C., and Mr. Patrick Chan (R.W. Young & Co.) for the Appellants.

Mr. C.N. Ingham, Counsel for the Crown/Respondent.

(1) 59 Cr. App. Rep. 120