HKSAR v. Yeung May Wan and Others
Read the full judgment text of HCMA 949/2002 on BabelCite. This High Court CFI judgment was delivered on 10 November 2004.
1. The present appeal arises from the conviction on 15 August 2002 of the 16 Appellants by Mr Symon Wong, Permanent Magistrate at Western Magistracy of the following charges : -
Cited by 5 cases · Cites 8 cases
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Judgment Summary (English Version) Judgment Summary (Chinese Version) HCMA 949/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MAGISTRACY APPEAL NO. 949 OF 2002 (ON APPEAL FROM WSCC NO. 548 of 2002) _________________________ BETWEEN
_________________________ Before : Hon Ma CJHC, Woo V-P & Stock JA in Court Dates of Hearing : 3, 4 & 5 September 2003 Date of Handing Down Judgment : 10 November 2004 _______________ J U D G M E N T _______________ Hon Ma CJHC : 1.The present appeal arises from the conviction on 15 August 2002 of the 16 Appellants by Mr Symon Wong, Permanent Magistrate at Western Magistracy of the following charges : -
2.Each of the Appellants has appealed against conviction. On 16 June 2003, Pang J transferred the hearing of the appeals to this Court. At the hearing of the appeals, Mr John Haynes represented the 1st, 5th, 6th, 9th, 10th and 14th Appellants, Mr Paul Harris represented the 2nd, 4th, 7th, 12th and 13th Appellants and Mr Andrew Bruce SC represented the 8th, 11th, 15th and 16th Appellants. Mr Gerard McCoy SC and Mr Kevin Zervos SC represented the Respondent. The 3rd Appellant was at one stage represented by the same solicitors as the other Appellants but as no instructions could be obtained from her, the solicitors ceased to act. She was not present at the appeal but we have treated the submissions made on behalf of the other Appellants as also being applicable to her. 3.It has taken over a year for the present judgment to be handed down. While this is to be regretted, I wanted this Court to have in mind such principles as were likely to emerge from the important issues concerning freedom of expression and peaceful assembly and the limits to their exercise after this Court (differently constituted) had heard arguments in another Magistracy Appeal (HCMA 16/2003), which touched upon these issues. The judgment of that case is being handed down at the same time as the present. Facts 4.The Appellants belong to an entity known as the Falun Gong. It is not necessary to determine just what type of entity or organization the Falun Gong is nor its legal personality. By using the terms ‘Falun Gong’ or ‘Falun Gong activists’, I use these terms neutrally and for convenience only. The Central People’s Government and the Falun Gong hold directly contrary views to one another. 5.The members or practitioners of the Falun Gong enjoy the same freedoms as other persons in Hong Kong. Its supporters regularly demonstrate in Hong Kong and are permitted to do so. The present case involves the Falun Gong demonstration that took place on 14 March 2002 outside a building located at 160, Connaught Road West, in the Western District. This building, a 42-storey commercial building (“the Building”) contains the Liaison Office of the Central People’s Government (“the Liaison Office”). 6.I now describe the area outside of the Building on the day in question (the position may now be different). The main entrance of the Building faces Connaught Road West and is separated from this road by a pedestrian pavement. Immediately outside the entrance was a vehicle driveway with entrance and exit points to the side of the Building leading to and from Connaught Road West. In front of the Building on the other side of the driveway, on the pavement abutting Connaught Road West, was a flag podium flanked by two stone pillars. The base of the flag podium measured 1.7 metres by 2.4 metres, the base of the stone pillars 1.75 metres by 2.55 metres. On the flag podium was hoisted the Chinese National flag. The gaps between the flagstand and the stone pillars on either side measured 3.1 metres and was thus sufficiently wide to enable pedestrians to enter the Building from the pavement using this route. People wishing to enter the Building could also do so using the vehicle driveway entrance and exit, which were, as noted above, towards the front sides of the Building. The distance from the entrance of the Building to the outer extremities of the flag podium and stone pillars was 9.5 metres. From these points to the road, the pavement measured 9.5 metres. The length of the pavement outside the Building measured some 13.7 metres. It can therefore be seen that the area of pavement outside the Building on the day in question can fairly be described as being a large one by Hong Kong standards. 7.I have described the area outside the Building in some detail because the Falun Gong demonstration that took place on 14 March 2002 was located in that area of the pavement immediately in front of the flag podium. 8.Prior to that day, Falun Gong activists had been demonstrating in the area of the pavement outside 162, Connaught Road West. On 14 March 2002, the activists decided to move their demonstration to the Building where, as I have stated above, the Liaison Office was located. There is little doubt that any demonstration on the part of Falun Gong activists would have a greater impact there. 9.The Statement of Findings by the Magistrate states that at 8:50 am on the day, a number of Falun Gong members, including 4 Swiss nationals (the 7th, 11th, 12th and 14th Appellants), conducted a demonstration at the area of the pavement in front of the flag podium. The 7th, 11th, 12th and 14th Appellants sat on the pavement, at first facing the Building and then later facing the road. They wore sashes bearing the words “Hunger Strike”. About 3 other members of the group stood behind them. The group carried a 5 x 10 foot banner with words of protest written on it. 10.Shortly after the start of this demonstration, security guards of the Building contacted the police who arrived at the scene. At about 9:20 am, barriers were erected by the police behind the demonstrators in front of the flag podium and stone pillars so that this effectively blocked the route into the Building from the pavement past the flag podium. 11.According to the prosecution, the size of the demonstration grew. Eventually, all 16 of the Appellants were present at the said area demonstrating. As the number of demonstrators increased, a crowd developed to watch them. Included in the crowd, apart from passers-by were journalists and other members of the media. There was a police presence as well. 12.A number of warnings were given by the police to the demonstrators between 10:00 am and 1:00 pm. Specifically, 5 warnings were given at 10:07 am, 10:50 am, 11:35 am, 12:07 pm and 1:01 pm. Eventually, at about 1:15 pm, arrests of the Appellants were effected. The Appellants strongly resisted the attempts by the police to remove them. It took about 28 minutes for the arrests to be completed. The Appellants were then taken in 2 police vehicles to Western Police Station. Further resistance was met there the female Appellants were asked to leave the vehicle in which they had traveled. The 1st, 3rd, 5th, 6th, 8th, 9th, 10th, 13th and 16th Appellants all strongly resisted leaving the vehicle and, as they were being forcibly evicted from the vehicle, some violence occurred which continued in the briefing room of the police station. Injuries were caused to various police officers. 13.The above facts provide a brief (and I hope, uncontentious) description of the events that occurred on 14 March 2002. It is now necessary to deal in more detail with each of the charges and the facts surrounding them. Obstruction of a public place : section 4A of the Summary Offences Ordinance (Charge 1) 14.Section 4A states : -
15.This charge related only to the banner that was displayed by the Appellants. I have already described the banner in paragraph 9 above. In his Statement of Findings, however, the Magistrate did not deal separately with this charge, instead dealing with it alongside the section 4(28) charge as if both charges involved the same facts. In my view, he fell into error in treating the charge in this way. Perhaps it was assumed that in dealing with the particulars of this charge, not only did the banner in question have to be considered but also the demonstrators themselves as well. This, as Mr McCoy acknowledged, was wrong : only the banner ought to have been considered. 16.That apart and for the reasons that appear in Stock JA’s judgment as well, I would allow the appeal on the charge and accordingly quash the conviction of the Appellants thereunder. The section 4(28) charge (Charge 2) 17.The argument on this charge constituted the main focus of the present appeal. Section 4 of SOO contains a number of quite diverse and disparate offences under the heading “Nuisances committed in public places etc”. 18.Section 4(28) states : -
19.We are on the facts of this appeal concerned with that subsection in the particular context of the freedom of assembly, demonstration and expression : the Appellants were staging a demonstration outside the Building to protest their beliefs. These fundamental freedoms are contained in Article 27 of the Basic Law, and Articles 19 and 21 of the International Covenant on Civil and Political Rights (“ICCPR”) (which apply in Hong Kong through Article 39 of the Basic Law). They are also contained in Articles 16 and 17 of the Hong Kong Bill of Rights Ordinance, Cap.383. These provisions can conveniently be set out : -
20.In analyzing the law that has to be applied to the facts, I believe it useful first to identify other relevant statutory provisions which touch upon these fundamental freedoms in the particular context with which we are involved. Though I have identified 3 freedoms, for present purposes, they are to be treated in the same way. Mr Bruce was similarly content to adopt this approach. 21.The Public Order Ordinance, Cap.245 (“POO”) contains detailed provisions specifically dealing with the right to demonstrate by means of public gatherings or meetings. In brief, the scheme under that Ordinance is as follows : -
22.How then does this affect the consideration of section 4(28) of SOO in the context of a public demonstration? As a general rule, in construing legislation, it is necessary to take into account applicable provisions of the Basic Law, the ICCPR and Bill of Rights. This follows from Articles 8, 18, 39, 84 and 160 of the Basic Law and the spirit behind the Bill of Rights. Wherever possible, all legislation ought to be read consistently with the Basic Law, the ICCPR and the Bill of Rights. Where they cannot, the legislation in question may be declared invalid or unconstitutional. See here : - Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415, at 448A-B (paragraph 101). Accordingly, in construing section 4(28) in the context of demonstrations, one must by necessity take into account those provisions in the Basic Law, the ICCPR and Bill of Rights set out above. In my judgment, it is extremely helpful therefore in the consideration of the offence under that provision when seen against the various freedoms (of assembly, demonstration and expression) to bear in mind the said provisions (and their limits) in POO. The following represents what I believe to be the applicable principles when considering section 4(28) of SOO in the context of public demonstrations : -
23.It will be seen from this analysis of the legal principles that in many cases, what will confront the police in the first instance (and later the Court when charges are laid) is a balancing exercise. The balance is of course basically between the fundamental rights of persons to exercise the freedoms of assembly, demonstration and expression on the one hand, and those of the rest of the community on the other. This approach is recognized by numerous authorities. 24.In Brown v Stott (Procurator Fiscal, Dunfermline) and another [2003] 1 AC 681, at 704F-G, Lord Bingham of Cornhill, in referring to the jurisprudence of the European Court of Human Rights, said this : -
25.We were also referred to the decision of the House of Lords in D.P.P. v Jones [1998] 2 AC 240. This case raised the important issue of the limits of the right of peaceful assembly on a public highway. There, the defendants had gathered on a road to demonstrate (in that case about Stonehenge). There was in force in respect of the highway an order under section 14A of the Public Order Act 1986 prohibiting the holding of trespassory assemblies. On the broad issue of the limits to the right of peaceful assembly, the House of Lords adopted a reasonableness test, namely, that as long as an activity (such as a demonstration) did not amount to a public or private nuisance and did not obstruct the highway by “unreasonably” impeding the public’s primary right to pass and re-pass, there was a right of peaceful assembly that could be enjoyed : see the speech of Lord Irvine of Lairg LC at 254H and 257D-E. Quite clearly, this test involves the carrying out of a balancing exercise. As Lord Slynn of Hadley put it in his dissenting speech at 263G : -
The need to strike a balance between the right to free speech and to demonstration on the one hand and the need for “peace and good order” on the other was also emphasized in the speech of Lord Hope of Craighead at 274D-E and at 276H-277A (referring to the Otton LJ’s judgment in Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr.App.R. 143). 26.In relation to the right of assembly, the Lord Chancellor continued at 257F-G : -
The test adopted by the House of Lords was made in the absence of any legislation governing the freedom of assembly such as those contained in the Basic Law, the ICCPR and the Bill of Rights. Although reference was made to Article 11 of the European Convention for the Protection of Human Rights (dealing with the freedom of peaceful assembly), it would appear that none of their Lordships regarded it as either necessary or desirable to modify the test earlier stated : - see 259B-G, 265D-F. 27.In my judgment, while it is helpful to refer to cases like Jones for the proposition that a balancing exercise is involved, care must be taken not to ignore the constitutional and statutory framework that exists in Hong Kong. By this I mean of course those provisions in the Basic Law, the ICCPR and Bill of Rights earlier discussed. It is also important to bear firmly in mind the particular statutory provisions with which we are concerned. In the analysis undertaken at paragraph 22 above, I have endeavoured to show that the causing of an obstruction is but one ingredient (albeit an essential one) of the offence under that provision. In Jones, the House of Lords were not dealing with such a provision, although it is clear that a mere obstruction of the highway would not be sufficient to render impermissible an activity such as a demonstration. An obstruction was impermissible where there was an unreasonable impeding of the public’s right to pass and re-pass : - see 254H and 257D-E. In a jurisdiction like the United Kingdom where there does not exist the same constitutional and statutory provisions as we have in Hong Kong, I have no doubt that the test of reasonableness is appropriate. In Hong Kong, however, I find it more helpful to state the balancing exercise that has to be carried out by reference to the constitutional and statutory provisions applicable here. This provides in my view a more precise and focused test than just reasonableness. 28.The Magistrate recorded in the Statement of Findings the Appellants’ position that section 4(28) had to be construed so as not to be inconsistent with the Basic Law. In my view, this was for the reasons already gone into, a correct analysis. In his own conclusions on the law, the Magistrate recognized the need to view any obstruction against the fact that the Appellants were exercising their constitutional rights. 29.Where, however, I think the Magistrate erred was in his treatment of the facts. I have read in draft the judgment of Stock JA and find myself in complete agreement with his analysis of the facts and the way the Magistrate treated the evidence before him. Based on Stock JA’s analysis, I wish, though, to emphasize the following facts and matters : -
30.For the above reasons, the convictions under this charge were unsafe and unsatisfactory. I would therefore allow the appeal on the section 4(28) charge as well. The obstruction and assault charges (Charges 3 to 7) 31.These charges can conveniently be dealt with together. 32.Section 36(b) of the Offences against the Person Ordinance states : -
33.Section 63 of the Police Force Ordinance states : -
34.The facts surrounding these charges were not really in dispute in the appeal. While in a police vehicle at Western Police Station after their arrest, the relevant Appellants steadfastly refused to leave the vehicle when asked to, instead remaining in the vehicle, chanting and shouting abuse. They were told twice by an Inspector Ho to leave the vehicle and go into the police station. As the police then tried forcibly to remove them, assaults took place in and out of the police van and then later in the briefing room of the police station. The Magistrate has described the details of this in the Statement of Findings and as I have said, there is really no dispute on these factual findings. The video and photographic evidence before us strongly support the findings. 35.The crucial point in this part of the appeal was over the question whether the obstruction or assaults to the police took place in the due execution of their duty. 36.It was submitted on behalf of the Appellants who were convicted under these charges that if the 1st and 2nd charges could not be sustained (which I have held to be the case), it must then follow that charges 3 to 7 had similarly to be dismissed. The argument essentially runs along these lines : since the offences for which these Appellants were arrested cannot be sustained, their arrests were unlawful and it must therefore follow that the police could not have been in the due execution of their duty when the obstruction and assaults took place. Since a reasonable doubt exists (as I have found) as to whether the police had reasonable grounds to curtail the demonstration on 14 March 2002, there were therefore insufficient grounds to arrest the Appellants for the purposes of sections 10(d) and 50 of the Police Force Ordinance. 37.I cannot agree with these submissions. Sections 50(1) and (1A) of the Police Force Ordinance state in part as follows : -
38.Insofar as the focus should be on the validity of the arrests, while doubt exists as to whether the police had reasonable grounds to stop the demonstration when they did, there was never any doubt that the police had reason to believe that an offence had been committed. Both Senior Inspector Wong and Superintendent Chiu gave evidence not only as to the obstruction, but also to the potential dangers caused by the demonstration. These dangers may have been given a prominence that, on a careful balancing exercise, might not have been merited, but to say that the police did not have any reasonable grounds to believe that an offence had been committed, is simply not supported by the facts. The test of reasonable suspicion is both a subjective and objective one : subjective in that the police officer must have genuinely formed a suspicion; objective in that he must have reasonable grounds for the suspicion he formed. See : - O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286. 39.Sight should not be lost either of the other limb of section 50(1), namely, a reasonable belief that the relevant Appellants would be charged (the Appellants were of course eventually charged). 40.In any event, I doubt whether the focus ought to be on the validity of the arrests in the first place. Section 36(b) of the Offences against the Person Ordinance does not just concentrate on the aspect of arrest. It refers more generally to the position of police officers in the due execution of their duty. Some of the relevant officers who were obstructed and assaulted were not even the arresting officers. In any event, all those present at the police station were trying to persuade the Appellants to leave the police vehicle and be questioned or undergo some other formality in the police station. In the circumstances, I am of the view that the relevant police officers were without doubt in the due execution of their duty at the time of the obstruction and assaults. 41.For the above reasons, I would dismiss the appeals under these charges and would make the following orders. 42.The appeals of all the Appellants on charges 1 and 2 are allowed and their convictions thereunder are quashed. 43.The appeals of the 1st, 3rd, 5th, 6th, 8th, 9th, 10th, 13th and 16th Appellants under the 3rd charge are dismissed. 44.The appeals of the 3rd, 5th and 10th Appellants under charges 4 to 7 are likewise dismissed. Hon Woo V-P : 45.I have had the advantage of reading the detailed judgments of the CJHC and Stock JA in draft. I will briefly state my views. 46.I agree that the convictions on the obstruction charges based on the banner and the demonstration on the pavement outside 160 Connaught Road West should be quashed for the reasons that the magistrate when evaluating the evidence wrongly failed to undertake a balancing exercise between the enshrined freedoms of expression, assembly and demonstration on the one hand and “the Permitted Restrictions” referred to in the CJHC’s judgment on the other and that the magistrate also erred in disregarding the photographic evidence adduced by the appellants. I am of the view that the convictions on the obstruction charges are therefore unsafe and unsatisfactory. 47.On the convictions on the obstruction and assault charges affecting the person of the police officers, I entirely agree with the CJHC and Stock JA that they should be upheld. 48.Factually and logically, there can be no nexus between the arrests of the appellants by the police on the pavement outside 160 Connaught Road West and the conduct of the appellants after the vehicle carrying them had arrived at the Western Police Station. 49.Even though three officers (PW13, PW15 and PW17), the complainants of the obstruction and assault charges 3, 4, 5 and 6, took part in the arrest of the appellants, their asking the appellants to alight from the vehicle at the police station had nothing to do with the arrest. The obstruction under charge 3 did not occur on the pavement outside 160 Connaught Road West when the appellants were arrested; it occurred after the appellants had arrived at the Western Police Station when the three complainants and their colleagues requested the appellants to leave the vehicle. Whether the appellants had been lawfully arrested, the requesting police officers must be executing their lawful duties when requesting the appellants to alight (see section 51 of the Police Force Ordinance). Even if the appellants had been unlawfully arrested, they had no right to remain on the vehicle. PW15 and PW17, who were assaulted as charged in charges 4, 5 and 6, were lawfully executing their duties in using reasonable force to carry the appellants concerned out of the vehicle, but they were bitten, scratched and grabbed on the neck by these appellants. 50.Charge 7 is even stronger. Woman Inspector Chan (PW14) was the victim of the assault in charge 7. She was not one of the arresting officers. To her, the appellants had been arrested and they were waiting in the briefing room of the police station for going through with the formalities normally and usually required after any arrest. There cannot be any requirement that Inspector Chan should know under what circumstances these persons had been arrested, let alone whether they had been lawfully arrested. Her duty was to maintain order while these persons were to go through with the formalities. There can be no doubt that she was executing her lawful duties. She was suddenly grabbed on the neck from behind and fell. 51.In both of the situations described above, the appellants’ acts, including refusing to alight from the vehicle, biting, grabbing and scratching the officers, were obstructing and assaulting the officers in the due execution of their police duties and were utterly unjustified even if the appellants believed that they had been unlawfully arrested. 52.I agree with the orders proposed in the conclusions of the judgments of both of my brethren. Hon Stock JA : Introduction 53.Whilst I agree with the conclusions of the Chief Judge and Woo V-P as to the disposal of these appeals, there are certain aspects of their approach to that result with which I am, respectfully, not able to agree. In particular, I take the view that the suggested application of the Public Order Ordinance to this case is inappropriate; and I take that view quite independently of the issue of the constitutionality of key provisions of the Public Order Ordinance, which issue is the subject of my judgment in HKSAR v Leung Kwok Hung and others, HCMA 16 of 2003. It is, I think, desirable for me briefly to describe the broad scope of that disagreement at the outset, for in so doing I may better set the somewhat different framework in which my judgment is presented and the route by which my conclusions are reached. 54.The two public place obstruction charges in this case (I use ‘public place obstruction’ to distinguish the first two charges from the obstruction of police charge, charge 3) were laid under sections 4A and 4(28) of the Summary Offences Ordinance, Cap 228. They were worded as follows:
55.Those charges alleged obstruction. They did not assert the holding of a meeting for which notice had not been given, or the holding of a meeting which had been prohibited, or the holding of a meeting in breach of any police-imposed conditions or indeed any other offence under the Public Order Ordinance. Nor did the police, either at the time they gave warnings to those demonstrating outside the Liaison Office, or at the time they stopped the demonstration and arrested the appellants, or when they gave evidence, suggest that in taking any of those steps they were exercising a power under the Public Order Ordinance. Nor were powers under that Ordinance prayed in aid by the prosecutor in the court below. The police acted as they did because the appellants were, so it was suggested, causing an actual or potential unlawful obstruction contrary to the Summary Offences Ordinance. 56.The restrictions which are referred to by my Lords as ‘Permitted Restrictions’ – to prohibit or control or impose conditions on meetings, processions and gatherings ‘in the interests of national security or public safety, public order (ordre public) or the protection of the freedom or rights of others’ – are those available under the Public Order Ordinance, sections 6, 9, 11, 14, and 15 (see para [21(4)] above). Sections 9 and 11 do not apply to the present case because the meeting of these appellants was smaller than contemplated by those sections; and sections 14 and 15 do not apply because this was not a procession contemplated by the terms of those sections. As for section 6, it is suggested at paragraph [21(4)] above that section 6 empowers the Commissioner to prohibit a meeting. I do not, with respect, agree. Section 6 is by its terms restricted to the control and direction of gatherings and processions, not to their prohibition. In any event, the police in this case did not purport to be acting pursuant to that section. 57.It follows that I must depart from my colleagues in their suggestion that in considering the offence created by section 4(28) of the Summary Offences Ordinance, it is helpful to bear in mind the provisions of the Public Order Ordinance or the restrictions in them. The questions of ‘necessity to curtail the demonstration by reason of one or more of the Permitted Restrictions’ (para [29(5) above], or of awareness of ‘ overstepp[ing] the mark so that the Permitted Restrictions became relevant’ (para [29(3)] above) do not, in my respectful judgment, arise. 58.I accept that the Basic Law permits restrictions upon the freedom of expression and on the right of peaceful assembly where such restriction is necessary for the protection of national security, or of public order (ordre public), of public health or morals and, in relation to the freedom of expression, the rights and reputations of others. Those restrictions are permitted by the terms of articles 19 and 21 of the International Covenant on Civil and Political Rights (‘ICCPR’) to which effect is given by article 39 of the Basic Law. Yet the sole restriction which is relevant in this case is the restriction constituted by the terms of sections 4(28) and 4A of the Summary Offences Ordinance themselves. The effect of those sections is this: that they impose a restriction on the citizen who expresses himself in Hong Kong by holding up a banner in that he may not do so if his act unreasonably obstructs, inconveniences or endangers another, or may do so (section 4A); and they impose a restriction upon individuals who gather in a public place to express themselves by saying that they may do so but only in so far as in all the circumstances an unreasonable obstruction is not occasioned. It is no longer suggested in argument in this appeal that those restrictions, constituted by the very sections themselves, are other than restrictions permitted by the relevant articles of the ICCPR and, therefore, by the Basic Law. So the limits of the permissible restriction in a case under either of the two sections with which we are concerned are provided by the sections themselves, and cannot be widened by the police where they act pursuant to those sections, or by the terms of the Public Order Ordinance or indeed by any other statutory provision not expressly applicable to those two sections. Since the police stopped this demonstration because, so they said, they suspected obstruction offences and since there is no other ordinance applicable to the sections of the Summary Offences Ordinance under which the charges are laid and pursuant to which the police acted, it is the law of obstruction as that has developed, and to which I shall later return in some detail, that applies. Where the Basic Law is relevant in the present context is that, first, it permits some restriction upon freedom of assembly by the enactment of reasonably necessary, proportionate and clear laws that prohibit actual or threatened unreasonable obstructions – these we find in sections 4(28) and 4A; and secondly, and importantly in this context, it enshrines the right of assembly and freedom of expression, so that those rights must be given their proper weight when the defence of lawful excuse which expressly applies under both sections 4(28) and 4A are considered. 59.As for the suggested impact of our constitutional provisions upon the approach or test of reasonableness emphasized in Jones and in the obstruction decisions which the majority in that case endorse, I deal with this at paragraphs [90] to [92] below. It will be seen that in my opinion the provisions of the Basic Law should be taken to reaffirm the approach in Jones and in the obstruction decisions there endorsed. The first charge 60.The obstruction charges against these appellants fell under sections 4A and 4(28) of the Summary offences Ordinance, Cap. 228. The first charge was that the appellants set out a banner which might obstruct, inconvenience or endanger persons in the public place. That charge was otiose because it could not on any reasonable view survive an acquittal on the second charge which was directed at the congregation of the demonstrators. In any event, it could not on any view of the facts succeed, for the suggestion that the banner itself caused an unreasonable obstruction or might do so was nonsensical. Counsel for the respondent pointed out that both sections 4(28) and 4A include the word ‘may’ as in ‘whereby.. obstruction… may accrue…’ (section 4(28)) and ‘ …any matter or thing which obstructs or may obstruct…’ (section 4A), and it is said that this enables the commission of an offence to be demonstrated without the need to prove actual obstruction. That is true. But the reason for the inclusion of the word ‘may’ in both subsections is obvious, so it seems to me, in a city such as Hong Kong, riddled as it is with narrow streets and passages. If, for example, a barrier is placed across a narrow access path, there is then no need to wait until obstruction is in fact caused or someone is in fact endangered or injured. Its removal can be demanded at once, and the offender prosecuted. Yet the appearance of the word ‘may’ in the sections is not an invitation to abandon common sense. The facts which attend assertions of obstruction in a public place will differ widely from case to case, and in a case such as the present where a banner of the size and type used on 14 March 2002 is exhibited on its own, as is postulated by the first charge, in a space as large and open as that outside the Liaison Office, and in the position in which it was placed, far from the entrance, the notion that of itself it might, had one waited long enough, have unreasonably obstructed a person or a vehicle is fanciful. I would allow the appeal of each appellant on the first charge and quash that conviction. The second charge 61.Section 4(28) provides that:
62.The testimony of the prosecution witnesses was firm in its assertion of repeated actual, as opposed to potential, obstruction; and actual rather than potential obstruction was the gravamen of the prosecution case. The wording of the charge, however, asserts that the appellants so assembled themselves and so displayed their banner that obstruction ‘might accrue’ to a public place. That wording is no doubt no more than a reflection of the act proscribed by the section. Be that as it may, the fact that proof of the offence was complete once a potential obstruction was shown was a matter which formed part of the respondent’s submissions in this appeal. In the event, neither approach matters to my conclusion, for I am satisfied that, on either approach, the conviction in relation to the obstruction charge, which is charge 2, should not stand. The reasons, to which I now turn, are somewhat more complex than in the case of the first charge. The Defence 63.The prosecution evidence of obstruction was not accepted by the defence. The defence case was that evidence of actual and potential obstruction was unreliable and materially exaggerated. 64.The defence in this case was that no actual or potential obstruction occurred but that if it did, there was a lawful excuse for it. The lawful excuse was reasonable use of the space outside the Liaison Office. It was reasonable, it was said, having regard to the purpose of the occupation (the exercise of a fundamental right), the smallness of the area occupied in relation to the area available for pedestrians and for office workers, and the fact that few if any were or were likely to be inconvenienced by the demonstration. The Key Questions 65.The first question in this case, as it was presented, was whether the presence of the group obstructed anyone (or, though not thus presented, might have obstructed anyone) in the sense that persons who might otherwise have crossed the very space occupied by the group could not by reason of its presence, cross that very space (or might not be able to do so). I am prepared to assume that that was proved. 66.But that was not what this case was about. The case was about whether the use of that space by the group was an unreasonable use of the pavement outside the Liaison Offices; for if the use was lawful and reasonable, lawful excuse is made out :
per Lord Parker CJ in Nagy v Weston [1965] 1WLR 280, 284. Given our statutory provision, one needs to substitute for the last phrase the test: whether either an actual or potential obstruction is occasioned. 67.How was the question of reasonableness to be answered in this case? It could only properly be answered if, first, due recognition was accorded to the fact that the activity in which these appellants were engaged was inherently lawful, and was an exercise of a fundamental right to which the Basic Law gives specific protection. If the use to which the area has been put is inherently lawful, as in the present case it was, then the answer to the question is provided, or should have been provided, by reference to the importance of the right which was exercised in occupying the space and to the impact or likely impact upon the use of the same facility by others. Context 68.Any tribunal of fact faced with a material dispute of fact will need to test conflicting contentions with regard to the context in which the central events take place. That was of particular importance in this case. 69.In one sense this case was not at all about the identity or nature of the protesting group, or about the political environment in which the protest was conducted; but in another sense it very much was. 70.The rights to demonstrate, to assemble and freely to express one’s views are rights belonging to all regardless of political or religious or philosophical allegiance. Popularity of the views which are sought to be expressed is not a condition precedent to the exercise of those rights. Were it so, the test of reasonableness underpinning the concept of lawful excuse, with which we are in this case concerned, would vary according to the political or social or religious colour of the accused, a notion at once recognizable as inimical to the essence of the rule of law. 71.This is not to say that an assembly is lawful no matter the manner of its conduct and regardless of such threat to public order as may be inherent in the circumstances of a particular demonstration. But a peaceful non–obstructive user of a public place for the exercise of the fundamental right of expression is a lawful act, and is not transformed into an unlawful act by reason only of the identity of the demonstrator. 72.It was said in HKSAR v Ng Kung Siu [2000] 1 HKC 117, 135 that:
73.It is in that sense that this case is not, and never was, about the Falun Gong. If their views or practices are unpalatable to some, or indeed to many, whether to officials or sections of the public, their rights in law are not thereby diminished. That group, the Falun Gong, is no more or less immune from such restrictions as are reasonably imposed by law on the exercise of fundamental freedoms as is any other group. By the same token, members of that group are no less free lawfully to assemble or to demonstrate. 74.But in this case there is a sense in which the identity of the demonstrators was relevant, and it is a sense, as the testimony showed, that had to be addressed. Those who were demonstrating were members of a sect which had fallen foul of the Central authorities; and it did not need the oral testimony to which I shall shortly refer to bring home the fact that a demonstration by followers of this sect was likely to be distasteful to those whose entrance to the Liaison Office was said to be obstructed. Yet that evidence was vivid in underscoring not only that fact, but also the likelihood that those walking in and about that area viewed the group with disapproval or disdain. Not one office employee was called to testify. No member of the public gave evidence. Nor did the official who saw the demonstration from its outset and who made repeated complaints to the police alleging obstruction, testify about the obstructions that were said to have motivated such apparent anxiety on his part. It should be obvious that a real question arose in this case as to the cause of such detours as were said to have been made: whether, on the one hand, the location and space occupied by the appellants, or whether, on the other, the choice of the employees and other pedestrians, not forced upon them other than by their disapproval of the identity of the group, or of such cause as the group espoused or were perceived to espouse. That question arises purely on the facts of this case; and it arises because there was significant oral testimony suggestive of self-imposed detours, and it arises further because the photographic evidence of the space left by the applicants to office workers and to other pedestrians to pass and re-pass and to gain access to the Liaison Office building through the front entrance, was not on its face suggestive of any appreciable obstruction. There is nothing in the Statement of Findings that recognizes this dimension to the case. 75.The identity of the group and the enmity between it and the Central authorities was relevant also to the issue of credibility of certain prosecution witnesses. It is clear beyond question that cross-examination by those acting for the appellants was almost wholly designed to illustrate an incongruity between, on the one hand, the geography and scope of the entire area available to pedestrians and the place within it of the space occupied by the demonstration as shown by plans and photographs and video-film and, on the other, the oral testimony asserting actual obstruction; a theme which invited the court to view that oral evidence with considerable skepticism. The contention was that behind the action taken by the security guards in calling the police, and the action taken by the police themselves, was an anxious desire to accommodate the urgent and frequent requests, if not demands, of Liaison Office officials to clear the square of the actual and political eyesore to them that was constituted by the demonstration and to relegate the demonstrators to a place which was less directly offensive; that the assertions of obstruction were at least grossly exaggerated; and that the warnings and arrests for obstruction were the only perceived tool by which to resolve the impasse occasioned by the hostility of the Liaison Office on the one hand, and the determination of the demonstrating group to demonstrate at the place of their choosing, on the other. It was a contention said by the appellants at trial to be supported by the photographs and videos taken from the outset of the demonstration, and by other objective indicia; and I am not satisfied that the magistrate paid sufficient regard to those indicia which gave credence to that contention. The evidence asserting obstruction 76.Senior Inspector Wong seems to have been the first officer of senior rank to have arrived at the scene. He arrived at 8.55am. There were then four demonstrators sitting outside the building: ‘Quite far away,’ as he described it (page 1790 appeal bundle). He took the view, he said in evidence, that if the group attracted the attention of drivers who passed by, a danger to traffic might well be caused; and he also saw one or two persons pushing handcarts who ‘had to move’ in the sense that ‘they did not push the hand carts in a straight line’ (page 1791). Those intending to enter the building had to do so ‘at an angle’ (page 1793). He spoke to the group and told them that they were causing an obstruction and asked them to go to the adjacent area, outside No. 162 Connaught Road, where there was space allotted for the Falun Gong; but they did not reply (pages 1793K and 1083)(Emphasis added). 77.I pause to comment that it is not without significance that the view that an obstruction had been occasioned was formed already then, when there were but four demonstrators. 78.What then transpired was that the officer gave instructions for metal barriers to be erected behind the group of four; and barriers were erected at 9.20am. He said that he did so to prevent the demonstrators from dashing into the building and also because there were a great number of reporters and in order to maintain order (page 1794). There was no suggestion that the demonstrators were other than peaceful or that they made any threat or move to dash into the building. But, said the officer, ‘if the people wanted to enter the building from their front, then this group of people had already caused obstruction’ (page 1808) (Emphasis added). 79.We have seen photographs of the barriers and of the places at which they were installed. There can be no question but that once they were in place, pedestrian access to the building through the front podium was blocked. The demonstrators were, from that moment on, cordoned off. 80.Superintendent Chiu arrived at about 9am. At that stage there were ten demonstrators in two rows: four in front and six at the back. By 9.15am he had determined that the demonstrators were causing an obstruction (page 1292), so he gave instructions to other officers that they be told to move. A complaint had already been received by the police from Mr Deng of the Liaison Office. This was the complaint that first prompted the police visit to the scene. The Superintendent’s evidence was that there were people blocked from entering or exiting the building; and that local residents had to make detours to avoid the group. With his own eyes, so he said, he saw members of the staff who could not enter via the main entrance (page 1256) (My emphasis). The group, the demonstrating appellants, were ‘…. depriving the right of those people who want to enter the Liaison Office by the front entrance.’ (page 1258). There were people who simply could not get in (page 1290). There were those who could not walk in straight lines because of the group (page 1291). And in the meantime Mr Deng made further complaints at 9.15; 9.30; and 9.45am. 81.Let it be noted that the time by which the office workers had in general entered the building was 9am. The first warning given to the group was at 10.07am. That is also the time at which the police commenced taking their videos. The only photographs taken of the demonstration before then was a video taken by those acting on behalf of the demonstrators. It is not suggested that those photographs do not show the scene of the alleged offence as it was before 10.07am; though there was some suggestion of distorted angles. The first warning – the very first one – told them that they had already caused an obstruction. That was the sole subject matter, or the sole alleged offence, to which the warning was directed. 82.Mr Fung the security guard spoke of the events as they occurred at 8.50am when people were coming to work. ‘When some people saw that there was a demonstration being carried out, they were not able to get through the main entrance’ (page 1689)(Emphasis added). About thirty people were thus affected. Later, reporters came. People were not able to gain any access to the main entrance, he said; and that at about 10am there were about 40 to 50 people consisting of Falun Gong members and reporters gathered at the pavement outside the main entrance (page 1692). Mr Wong, a senior security officer, said that the demonstration and attendant gatherers blocked the vehicular passage (page 1737). 83.The phrases that I have emphasized are intended to highlight two matters: first, the apparent occupation of the witnesses with the assumed importance of office workers and pedestrians being able to walk or to gain access in a straight line and, secondly, the assertions that the obstruction was such that people were entirely precluded from access to the building through its front entrance. 84.Subject only to the suggestion made that the diversions taken caused those diverted a degree of danger because they had therefore to cross vehicular traffic, a point in respect of which I make later comment, that was the essence of the case. Whether that testimony was credible and even if so it demonstrated appreciable inconvenience to others, is a matter to be discussed. But first, the law. A balance of rights, and the law of give and take 85.If one is to reduce to its essence the law relating to the user of highways, one is unlikely to manage a more succinct encapsulation than that of Romer LJ in Harper v G N Haden and Sons Limited [1933] 1 Ch. 298, 320, that:
86.In this context, it was and is fundamental to a proper approach to this case to appreciate that the law of the highway does not assume that reasonable use of the highway is restricted to its use for passing and re-passing or to uses incidental to that function. Whilst the paramount use of the highway is for the public as a place for passage:
per Collins LJ in Hickman v Maisey [1900] 1 QB 752, 757-758. 87.Similarly in DPP v Jones [1999] 2 AC 240, a decision of particular interest to our deliberations in that it addresses the relationship between rights of passage and rights of public assembly, Lord Irvine said, at page 256A, that:
88.Thus it is that modern democratic society accepts as normal the use of pedestrian areas, such as pavements and squares and plazas, for the handing out of leaflets, for collections, for passing time, for electioneering, for sitting to enjoy lunch or the company of friends and, amongst a host of other acceptable activities, for carrying placards and for protesting and exercising the right of assembly. Though recognizing that the right of passage is the prime object of a highway and should not unreasonably be impeded, so that these other activities accommodate the right of passage, nonetheless the right of passage must reasonably accommodate the exercise of other rights. That accommodation is part of the give and take of any modern city that purports to be tolerant and cognizant of the plurality of rights to be enjoyed by, and indeed protected for the benefit of, the variety of its residents and the manifold interests and views that they espouse at any given time. This same variety of interest and views necessarily means that what is important to one man may be unimportant or perhaps even irksome to the next; but if there is to be true respect for the rights of all, then some must occasionally put up with a degree of inconvenience. It is always a question of what is reasonable, of the effect of the one upon the other, a question to be addressed with maturity and objectivity but realizing all the while that fundamental rights are rights, not to be begrudged as some necessary nuisance, but to be promoted, let alone protected. These notions are not merely recognitions of intrinsic values and the product of developed human rights law, but are pronounced and enshrined by the Basic Law, and it therefore behoves the courts of this jurisdiction all the more to ensure that the right is not mouthed as a platitude, but is accorded full effect in the application of our laws to everyday situations. I do not, with respect, think that the court below sufficiently appreciated the accommodation required as between these rights or that it struck the balance between them that the particular facts allowed and demanded. 89.It is clear from Jones to which no reference is made in the Statement of Findings (because, I assume, it was not drawn to the court’s attention), and from those dicta in obstruction case decisions endorsed by the majority:
Referring to Lord Esher’s approach in Harrison v Duke of Rutland [1893] 1 QB 142, the Lord Chancellor said, at page 255C:
Then this at page 254H-255A:
90.I do not share such sentiments as have been expressed by my Lords about the need to qualify or adapt the approach suggested by Jones with its emphasis on, or test of, reasonableness. I acknowledge that the statutory provision with which their Lordships in Jones were directly concerned was different from the obstruction provisions which we are here addressing. But the ratio of that decision is properly applicable in our case:
91.Neither do I see (save in two aspects to which I shall presently refer), in the context of obstruction offences, that the test of reasonableness suggested by Nagy, and Hirst, and Jones requires modification by reason of our constitutional provisions or because at the time those cases were decided similar constitutional or human rights provisions were not in place in England. It seems to me (and these are the ‘two aspects’ to which I refer) that the effect of the constitutional provisions make only these changes, that they put beyond doubt that use of a public place for assembly or for expression of opinion is prima facie lawful notwithstanding that that use is not in the exercise of the right of passage and, further, that they require, in the assessment of reasonableness, significant weight to be attributed to the exercise of the rights entrenched by the constitutional provisions. In other words, the constitutional provisions enhance the defence of reasonableness, a view for which there is support in Freedman ‘Civil Liberties and Human Rights in England and Wales’ 2002, pages 1057-1058:
A failure to appreciate the true issue. 92.There can be no question but that the appellants had a right to use the pavement for a reasonable purpose. There is no question but that the use of a pavement for the purpose of a peaceful assembly is prima facie lawful. And, further, there is no question but that the assembly in this case was peaceful. So the true question in this case is and was whether this lawful use of the highway unreasonably (see Jones above) impeded the primary right of the public, including those wishing to gain access to the Liaison Offices, to pass and re-pass and to gain access; and as I suggested at [67] above the prime considerations to be ‘keyed in’ when answering that question were the fact that the appellants were exercising a fundamental and protected right and, as against that – but bearing in mind all the time the concept of give and take – the impact at the material time of the demonstration on the use of the square or area as a whole and, as to impact, whether the obstruction was appreciable (see R v Bartholomew [1908] 1 KB 554); or unduly obstructive (see Hubbard v Pitt [1976] 1 QB 142, 150). 93.One of the several matters that has troubled me in this case is whether the facets to which I have referred at the outset of paragraph [92] above – matters about which there could have been no question – were recognized, and whether the fact and the centrality of the requirement of showing an unreasonable impediment to the primary right of passage, was appreciated by the police officers who on 14 March 2002 asserted that an offence had been committed, or by the prosecutor in the presentation of the case; and whether the true issues were addressed by the magistrate. There is much in the transcript of the proceedings which suggests to me that these dimensions of the case were not appreciated either at all or sufficiently. There is much that suggests to me that when coming to the view that an offence of obstruction had been committed, the police - particularly the police superintendent who ordered the erection and deployment of barriers, who ordered warnings to be given, and who ordered the arrests - never addressed the requirement of give and take that is inherent in the law of the highway; and that they failed sufficiently or at all to appreciate that the right to use a highway to demonstrate or protest was part, a significant part at that, of the dimension of reasonableness. There is much in the evidence, as well as in the comments that were made in the course of the hearing below both by the prosecutor and by the court, which suggests that an unduly narrow view was taken of what constituted an unlawful obstruction, that the question of overall reasonableness was ignored, as was the fact that within the equation true substance had to be given to the right to demonstrate and to the distinction between causing undue inconvenience, on the one hand, and some inconvenience on the other. Thus we see for example:
94.In the light of the factual matrix which presented itself to the learned magistrate, the precept of give and take was fundamental to a properly informed conclusion in this case. But I believe that a full study of the transcript in this case reveals an assumption on the part of the prosecution witnesses who alleged obstruction, and also on the part of prosecuting counsel, that all that had to be shown was that pedestrians were diverted from the path which but for the presence of the demonstrators they would have taken; and that since there was a space available down the road for the Falun Gong to demonstrate, an obstruction contrary to section 28(4) of the Summary offences Ordinance was proved. I see little in the evidence of those who apparently decided that there was unlawful obstruction occasioned by the appellants, and little in the approach of prosecuting counsel in the frequent objections he took to what appears to me to have been perfectly acceptable cross-examination, that was imbued with a recognition of the give and take to be accorded to use of the highway; and little that recognized the important right to meaningful demonstration as part of the equation that had to be addressed. With respect to the magistrate, whose task was not made easier by some unhappy exchanges between counsel, I find scant assurance from the Statement of Findings that give and take as between two rights was accorded adequate consideration: indeed, there is a strong assertion in that Statement that the demonstrators were disrespectful of the rights of those seeking access to the offices – a conclusion against which the testimony tended - with no concomitant recognition of the tolerance and respect demanded by the right to assemble and protest guaranteed in terms by the Basic Law. Conversely, if the magistrate did seek to balance the two rights, then I take the view, based upon the testimony that I have studied, that no reasonable tribunal properly directing itself could on the facts of this case have convicted of charge(s 1 and) 2. Pointers 95.That there was testimony which called into question the accuracy of the evidence of actual obstruction, and the magistrate’s approach to that testimony, is a later and important question. For the moment, however, I wish to turn to the evidence which gave rise to the question whether the space occupied by the demonstrators was such as truly impeded convenient access to the main entrance of the office block; whether such detours as were taken to avoid the group were necessary and, even if so, were significant; whether there was a peculiar sensitivity by those who would access the building to the identity of the demonstrators such that the wide berth which they may have accorded to those demonstrators did not in the event mean that the demonstrators were using the space unreasonably but, rather, that give and take was viewed by those who decided that there was an obstruction in too narrow or one-sided a fashion. These were questions which the magistrate had in the circumstances of this case to address, and the Statement of Findings gives me scant assurance that they were addressed. 96.The evidence to which I allude came from prosecution witnesses themselves, and it tended to undermine the case of actual obstruction; and was evidence which hints that such detours as took place may well have been self imposed in the sense to which I have earlier referred:
Issues of credibility; and relevance of issues 97.One notes from the evidence that the conclusion that there was an obstruction was a conclusion formed at an early stage of the demonstration (see, for example, appeal bundle page 1292L), and that the suggestion was that there were those who simply could not enter through the front doors of the building. The Superintendent said, for example, that:
He first described the gap between the demonstrators and the flag podium as one of about two to three feet, changing that, after he was shown defence photographs, to about six feet. One would have thought in the context of this case – and it seems to me clear that the demonstrators chose the size and place of their demonstration with care (perhaps because of the legal advice they had apparently sought) – that the actual size of that gap was relevant, relevant to issues of credibility as well as to the central issue of reasonableness. It is a little surprising therefore to see the court’s comments in the following exchange between Bench and Bar:
And then this:
98.When the police officer was shown the photograph marked PD11, a photograph taken before the erection of the barriers, of ten demonstrators holding the banner and occupying the position they occupied throughout the morning (and showing, in my judgment, the ample room for those who wished to pass to do so, and for those who wished to gain access to the main building to gain access, easily, to the main building), it was put to the Superintendent by counsel:
and the officer replied:
In my opinion, however, these statements, and statements like them from this and other witnesses, did not sit well with the objective or non-contentious indicia. 99.The probable truth of the matter, so it seems to me, was revealed by other testimony; and it suffices for this purpose to concentrate on the testimony of the Superintendent who accepted that in the first hour of this demonstration he received repeated complaints from Mr Deng of the Liaison Office (page 1238). He gave evidence that the demonstrators were advised to go, as early as 9.15am, to the space designated for the Falun Gong outside No. 162 Connaught Road. The pavement outside No. 162 was certainly no wider than that outside No.160 and it was not as unencumbered in that there were trees planted intermittently within that stretch of pavement, and it was, of course, not outside the Liaison Office itself. Yet the Superintendent did not accept, when it was put to him, that to require the demonstrators to move from in front of that which he had described as a de facto embassy (page 1254) was a requirement that, if successful, would deprive the demonstrators of ‘their most visible demonstration position’. That was a strange denial, for it seems to me as obvious as can be that such a move would clearly deprive them of just that. Indeed, there was evidence from the officer himself, the Superintendent, that as far as he was concerned no demonstration in that location (that is outside the Liaison Office) was acceptable, and in context I take him to have meant no demonstration by that group. He was asked about counter proposals to the suggestion that they were to move to outside No. 162 and he said it was not ‘appropriate for any demonstration to take place at that particular location’ since obstruction would be caused and he feared a breach of the peace (page 1293)(Emphasis added). The object of the exercise he said (page 1296) was not to stop them from demonstrating but just to ‘move them to a location where inconvenience is minimal.’ 100.These comments are remarkable. The place to which they were to be removed was, so it seems to me, no less convenient to the pedestrian, and there was much to suggest little or no substantial physical inconvenience to the workers at the Liaison Office building, unless one interprets inconvenience to be that occasioned by the presence of those with whose ideas or habits one disapproves. Conversely, there was no question but that the disadvantage to the efficacy of the demonstration would, by such a move, have been material, evidencing inadequate consideration to the countervailing rights at play. The right to demonstrate and the right to protest are rights to be exercised:
As one so often sees in newscasts from around the world, pavements or plazas outside government buildings or embassies are regularly used for protests, and the reason for the choice of site is clear, namely, that they are the natural or most obvious sites for demonstrations, precisely because demonstrating ‘down the road’ is less likely to bring home the intended message either to government or embassy officials or to passers-by. It is no answer to say, as was said in terms by the Superintendent:
101.In the court below, counsel for the appellants pursued the suggestion that the police were according to the Liaison Office special treatment, in the sense of being overly sensitive to the complaints emanating from that Office without proper regard to the facts or to the importance of the right to demonstrate. This line of questioning was the subject of objection by prosecuting counsel on the basis of irrelevance. But since the facts were in dispute and the credibility and motives of the police were at the heart of the case, the questioning was entirely relevant, and I am surprised that the court below thought that ‘most of the questions put to various prosecution witnesses are totally irrelevant and in fact not sensible at all’, an assessment with which I cannot agree. The following exchange in the context of the same line of cross-examination is noteworthy:
102.Persecution was not the lawful excuse upon which the defence rested. The lawful excuse advanced was the reasonable exercise of the right of protest. Counsel for the appellants was evidently concerned that the point was being missed, a concern which in the course of the transcript we see repeated in other contexts. Shortly after the passage just recited, Mr Haynes appeared concerned that neither the prosecution nor, more importantly, the court seemed to appreciate valid reasons for pursuing various lines of questioning. One such line was to illustrate that no action had been taken when the pavement had been littered with vehicles. The objection to this line was that failure to charge previous obstructions was irrelevant, whereas the defence point was that neither the vehicles nor the demonstrators had caused any unreasonable obstruction. The same point was made about the police barriers left in place for several days. There followed this exchange:
It must, surely, be a matter of concern that the tribunal thought at that relatively advanced stage of the case that the defence were construing persecution as the lawful excuse which provided their defence. The defence photographs and films 103.Between the time the handful of demonstrators first took up their position outside the Liaison Offices and the time the demonstrators were first ordered to move, a period less than one hour, a series of complaints was made to the police by an official of the Liaison Office about the demonstrators. After the first complaint, the complaint was repeated at 9.15am; then again at 9.30am; and then yet again at 9.45am, well after the bulk of workers arrived at that building. Barriers started to go up at about 9.20am around the demonstrators sealing them off from the building; and at 10.07am the first warning was issued to the demonstrators. The reason given was that they were causing an obstruction (and not, let it be noted, that their demonstration might have that effect). As we have seen, testimony of the security guards and of police officers was directed at the period between the formation of the demonstration and the putting up of the barriers, though not exclusively so. A reading of the extensive cross-examination, which cross-examination was, I regret to have to say, not facilitated by some unnecessarily strident interruptions by prosecuting counsel, shows a constant theme, namely, that the testimony of these witnesses was not to be believed. In support of that contention, counsel for the appellants sought to highlight certain indicia which, they asserted, undermined the credibility of the testimony. Those suggested indicia included:
104.For reasons I have advanced, the suggestions that the complaints to the police were not motivated by true concern about obstruction, and that the police approach to the whole affair was coloured by the identity of the complainants, were not suggestions to be avoided. They constituted an issue that was a recurrent theme of the cross-examination and emerged from the facts themselves and, as we have seen, there was a stage when counsel for the appellants suggested in terms that the Liaison Office had been accorded ‘special treatment’ by the police; and there was a suggestion too that the area of pavement outside the Liaison Office had in effect been declared a ‘sort of unofficial “no demonstration” area’ (page 1296). Counsel for the appellants sought regularly to refer to other instances where the pavement in question was occupied either by vehicles or by the barriers themselves. None of this was irrelevant, for it went to suggest that whereas other obstacles were not viewed as unlawful or unreasonable obstructions, the demonstration, occupying a smaller space, was; so that that could only be accounted for (so ran the argument) by the identity of the sect to which the appellants adhered and the identity of the place outside which they were ensconced. There were thus raised two contentions – that there was in fact no unreasonable obstruction, and that the allegation to the contrary was disingenuous. 105.This issue of the bona fides of the allegations was an issue that had to be faced squarely and there was in my opinion much which ought to have caused the magistrate to pause and to look for uncontroversial indicia as to the truth. In a case imbued as was this case with political overtones, with strong opposing sensitivities, and with hotly contested issues of fact, it is the evidence which is not in dispute, or that cannot be gainsaid, that is likely to resolve the contested testimony. Such evidence was available in this case, and we have seen it. It took the form of photographs and of videos which showed the scene between the time the demonstration was formed to beyond the stage of the erection of the barriers. That was the vital period in this case. In so far as those photographs show the area occupied by the demonstrators, and by the banner they held, the position of the demonstrators in relation to the flag podium, the spaces left available for pedestrian traffic, the tightness of the group, the attitude assumed by the demonstrators: such matters were not suggested to be falsified by those photographs or by the video. 106.This is evidence which was shown to this Court in the appeal and in my judgment it substantially undermined the case for the prosecution. It is instructive therefore to see how the magistrate approached this evidence. 107.But the magistrate took the view that the defence exhibits were of no value. That assessment cannot, with respect, withstand an examination of the exhibits themselves. These photographs were persistently, and understandably, used in the course of the case by counsel for the appellants in order to illustrate the exaggeration of some witnesses – and exaggeration there clearly was – and to support assertions that there was ample space for a demonstration of the size of this demonstration; that there was less space outside No. 162 Connaught Road; and that occupation of the same space on other occasions suggested a motive behind the objections in this case that had little to do, in reality, with obstruction:
108.Against this background, there are two comments in the Statement of Findings which deserve particular attention:
I view this latter finding as one that is impossible to support. These defence exhibits were of considerable significance to the issues which the magistrate had to decide. They were relevant to the issue of credibility; to the issue of the manner in which the appellants were conducting themselves; to the space occupied; to the space available for others; to whether there could have been an obstruction in fact and, if so, whether an appreciable or unreasonable one by or at the time the police concluded that the law had been breached; to whether the complaints made before and after the police arrived could conceivably have been related to any appreciable obstruction to those wanting access to the Office whether by the frontal route or at an angle; to whether it mattered two hoots that one or more persons could not approach the main entrance at a 90° angle from the road; to whether the space available and the space occupied outside the Office was greater or smaller than outside No. 162 Connaught Road; and to whether the demonstrators were so grouped as to show a deliberate attempt to keep to a small and specific area, thus demonstrating the probability, as they contended, that they had received legal advice by which they were seeking to abide. The dismissal of these photographs in this manner was an echo, I regret to conclude, of the failure, evident elsewhere in the proceedings, of the court below to appreciate the essential issues which it was incumbent upon the court to determine. 109.In the course of this appeal, it was suggested that the defence photographs hardly showed an accurate or complete picture, taken as they were at a particular time or from a particular angle and that once this Court was shown the prosecution videos, a reality would be revealed that would readily demonstrate the obstruction caused. The reality did not in the event match the promise. I saw little, certainly insufficient, in the prosecution videos that supported a conclusion that this demonstration occasioned an unreasonable obstruction. Looking at the photographs and films as a whole, I have considerable difficulty in accepting that this small and tightly knit group caused obstruction of the kind to which the prosecution witnesses attested. It may be said there were onlookers swelling the ranks of those occupying the square; but that suggestion does not accord with the visual evidence we have seen, save in respect of those kept to the very sides, behind barriers and well away from the demonstrators. Contradictions 110.This was a peaceful demonstration – see the concessions to this effect at pages 1258; 1295; and 1820 – and, by any standard, a small one, and the films we have seen illustrate that a concerted attempt seems to have been made by the demonstrators to remain a tightly knit group in two perfectly straight lines with a significant space between themselves and the flag podium. The view that an obstruction was occasioned was taken when there were only four demonstrators (page 1793), a view that sits oddly with that number and the size of the pavement. The view was taken that the demonstration outside No. 162 caused no obstruction (pages 1805; 1812), a view that sat oddly with the conclusion that a smaller number, less spread out, outside No. 160 did cause an obstruction. It was conceded (page 1811) that the demonstration would have allowed for an eight-foot ladder to be carried behind the backs of the demonstrators (page 1811), yet the view was allegedly held that there was no room for people to pass (page 1259). An attempt was made to bolster the assertion of obstruction by reference to the suggested detours that the group allegedly caused pedestrians to make across the path of vehicular traffic, yet it was accepted (page 1809) that even those who gained access through the flag area had still to cross a vehicular area; and in any event the objective evidence undermines the suggestion that it was this group that caused office workers to take a diagonal route to the main door, and furthermore, the type of path across a vehicular access as was occasioned by the construction of this building and its curtilege is the type that one sees being negotiated with relative ease every day throughout this city. It was said that there arose a security risk, yet the protesters sat or stood in one spot for several hours advertising the fact that they were on a hunger strike with no hint of any other objective. Evidence was given of numbers who were said to have been diverted from their paths (as if a mere diversion sufficed), yet not one such incident was filmed nor one person thus allegedly diverted called to give evidence. The attitude of the demonstrators was said by the magistrate to be ‘nothing short of disrespecting the rights of the staff of the [Liaison Office] and members of the public’ (see page 271 appeal bundle), yet that very criticism directed at these demonstrators, who (or some of whom) had taken the trouble of seeking legal advice, carries no concomitant recognition of the respect or tolerance to be accorded to the right to protest. The findings 111.There are certain, though disparate, aspects of the Findings that merit specific comment. 112.The magistrate relied, in part at least, for his decision on Cooper v Metropolitan Police Commissioner (1986) 82 Cr. App. R. 74 and on Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr. App. R. 143. It is instructive to see to what end he relied on those authorities, and how he applied those decisions to the facts as he found them. He said, at page 267 of the appeal bundle, that:
Cooper was a strange case upon which to rely in the context of the issues in the instant case. It was a 1986 decision where the facts were very far from the facts and issues in the present case. In that case the court was concerned with a club tout who was approaching pedestrians on a four foot wide busy footway and causing them to step into the road; and in that case the court placed emphasis on the right of passage and actions incidental thereto, an emphasis that is echoed in the magistrate’s comment that the conduct of the appellants ‘was not incidental to pass and repass’. Quite apart from the fact that the law has for long moved away from regarding the permissible use of the highway as one restricted to passage and use incidental thereto, stopping pedestrians to press them to come into a club, and occasioning some obstruction when doing so, is clearly not in itself a reasonable activity. In such a situation, lawful excuse was unlikely to have a successful run as a defence. Exercising a right of protest outside an office housing governmental officials is hardly analogous, and to say in such a context that a four hour use of the pavement for such a purpose by the relatively small numbers we have in this case is ‘not a reasonable use of the pavement’ is a comment that begs the question: Why not? Of itself, it was lawful. Of itself, it was in the exercise of a fundamental right. Four hours is not an unusual time for a political protest. The numbers were smaller than those required by the Public Order Ordinance, Cap 245 to seek the permission of the Commissioner of Police to gather. The use to which the space occupied was put was self evidently, of itself, reasonable. The reference to busy office hours is, with respect, relatively meaningless without some indication of the numbers during those four hours seeking to gain access in a building at that part of town. The magistrate found that actual obstruction was caused. Be that as it may, it will seldom be difficult for the prosecution to prove a degree of obstruction; but that will hardly ever be the true issue in such a case. The true issue will be the lawfulness of the activity that causes that obstruction, whether in the exercise of a fundamental right, and whether the activity is, in context of space occupied, time taken, and most particularly the nature and degree of inconvenience caused to others, unreasonable. In the analysis found in the passage to which I have just referred, important elements of the mixture are omitted. 113.The key issue as we have seen from Jones is whether the activities of the appellants unreasonably obstructed others. The magistrate instead concentrated on whether the use of the area was ‘so unreasonable as to amount to an obstruction’, concluding that because of the size of the demonstration and the fact that it lasted over four hours it was not a reasonable use. The size and duration of the activity was of no consequence if no inconvenience to others was occasioned, or if such inconvenience as was caused was slight and of the type that has to be tolerated in a society that gives due weight to the right to demonstrate. 114.At page 271 of the appeal bundle the magistrate said:
I fail to see the relevance of the reference to their obsession with the idea of persecution. The subjective views and intentions of the demonstrators are irrelevant to the issue which the court had to determine: see Jones at page 257F. So too is it irrelevant that the demonstrators continued to demonstrate in that spot despite warnings to move elsewhere. If their use of the pavement was not an unreasonable use, it did not become unreasonable because of warnings:
Furthermore, the reference to disrespecting the rights of others begs the very question which the court had to tackle, which was whether there was a proper balance between the rights at issue. 115.At page 272, the magistrate said that ‘the police never sought to stop the demonstration’ and that the same purpose could have been achieved elsewhere. This is to fail to recognize the nature of the right in question: see my comments at [100] above. 116.At page 271 of the appeal bundle, we find the following from the magistrate:
I fail to understand what it is the court below was driving at, and I agree with the Chief Judge (paragraph 27(6) above) that it is puzzling why the issue of one country, two systems was, as a matter of law, relevant to this case. True it is that the legitimate interests of the public require protection of their right to pass along pavements and to gain access to buildings. No-one in this case ever suggested otherwise. In so far as 1997 is relevant in this case as a matter of law, it is relevant because the Basic Law then came into effect and that very Law provided constitutional protection to another right which the facts of this case put in the balance. It is significant that that right received no mention in the passage I have here reproduced. Charge 2: Conclusion 117.I am satisfied:
118.For the reasons I have provided, I would allow the appeal of those appellants convicted on the second charge, that is, the charge of obstruction under section 4(28) of the Summary Offences Ordinance, and quash those convictions. Charges 3-7: Obstruction of police and assault in the execution of an officer’s duty Introduction 119.I agree that the appeals against the convictions for obstruction of a police officer in the execution of his duty (charges 3) and for assaulting police officers in the execution of their duties (charges 4 to 7 inclusive) should be dismissed, but since, as should be clear from much of my judgment thus far, I do not share my colleagues’ view that it was established, at least as to the objective component, that Superintendent Chiu himself had reasonable grounds for suspecting a public place obstruction offence, I must provide the reasons for saying that nonetheless this aspect of the appeal must fail. The charges 120.Charges 3-7 each alleged an offence against a police officer in the execution of his or her duty. 121.Charge 3 was an allegation that the 1st, 3rd, 5th, 6th, 8th, 9th, 10th, 13th and 16th appellants obstructed a police officer, Inspector Ho, “in the due execution of his duty”, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212. This obstruction was said to have taken place on board a vehicle at the Western Police Station, and to have been constituted by the refusal of those appellants to disembark a police van into which they had been placed after their arrest and which they were required to disembark by an Inspector Ho when the van had arrived at the Western Police Station. Section 36(b) of that Ordinance provides that a person whowilfully obstructs “any police officer in the due execution of his duty … commits an offence and is liable to imprisonment for 2 years”. 122.Charge 4 was levelledagainst the 5th appellant and alleged an assault by her on board the same vehicle of a WPC Wong (No. 1453) whilst that officer was acting in the execution of her duty. The allegation here was that whilst being removed from the van she bit the officer’s arm. 123.Charge 5 asserted that the 10th appellant assaulted that same police officer on board the same vehicle by grabbing her neck and collar whilst that officer was acting in the execution of her duty, namely, seeking to remove this appellant from the van. 124.Charge 6 alleged an assault, again by the 10thappellant, but against another police officer, WPC Chan, No. 56952, in the execution of her duty, whilst in the car park of the police station. The contention here was that whilst being carried away from the van, this appellant grabbed hold of the officer’s waist and neck. 125.Charge 7, against the 3rd appellant, was an assertion that this appellant was approached by Woman Inspector Chan in the briefing room of the police station when those arrested had been asked to show proof of identity whereupon the appellant grabbed that officer’s neck from behind causing her to fall. 126.The fourth to seventh offences were said to be contrary to section 63 of the Police Force Ordinance, Cap. 232. Section 63 provides that any person who assaults a police officer acting in the execution of his duty is liable on summary conviction to a fine of $5,000 or to imprisonment for six months. The defences 127.The defences put forward at trial are summarized in the Statement of Findings. The 5th appellant denied assaulting the officer WPC Wong (Charge 4); and as for Charges 5 and 6, the 10th appellant said that she was only struggling to maintain balance when she thought she might be dropped to the ground. The 3rd appellant (Charge 7) said she was trying to prevent the 2nd appellant from being removed from the briefing room but in any event assaulted no-one. The grounds of appeal 128.In relation to these charges, Mr Haynes appeared for the 1st, 5th, 6th, 9th, and 10th appellants. Their grounds of appeal, pertaining to charges 3-7 inclusive, are broadly put. They are that “the magistrate erred in finding that the 1st, 6th, 9th and 10th appellants had been lawfully arrested”; and, further – although the point is in essence the same – that the police officers in question were not acting in the lawful execution of their duty. Of those appellants for whom Mr Harris appeared, only the 13th appellant is for present purposes relevant in that she was charged with wilful obstruction of Inspector Ho. Her ground of appeal in this connection is that “in the event that it is held that the 13th appellant was wrongly convicted of offences against sections 4(28) and 4A of the Summary Offences Ordinance, the police officers in question were not acting in the lawful execution of their duty.” 129.The issue is not that simple, and it is an issue which I confess has caused me difficulty. That is because:
The law 130.It cannot in my judgment reasonably be argued that there was insufficient evidence to support the magistrate’s conclusions that the appellants who are the subject of these charges obstructed Inspector Ho, and that the other officers named were assaulted. That such obstruction occurred, and that the assaults took place, is obvious enough from the evidence we have seen. But, however unattractive such conduct undoubtedly is, that is not wholly determinative of these charges, for each charge required proof, the burden of which lay upon the prosecution, that the officers who were obstructed and assaulted were at the material times acting in the execution of their duties. The taking hold of another, the application of force upon another, and the detention of another, are acts which are prima facie unlawful and, if it is sought to justify such acts, the burden of so doing is upon the person who applies force and who detains. Police are in no different position. A police officer is not merely by virtue of his office entitled to assault or to detain a citizen, and a citizen who is unlawfully assaulted or unlawfully detained is entitled to resist. This is a statement of law, even though any assault on an officer must be deprecated. These principles have for long been established by the common law and are enshrined in article 28 of the Basic Law as well as by article 9 of the International Covenant on Civil and Political Rights as applied by article 39 of the Basic Law. (See also article 5 of the Hong Kong Bill of Rights Ordinance; and the history of the underlying principles cogently summarized by Lord Denning in his 1949 Hamlyn Lecture entitled ‘Freedom under the Law’). There can be no question in this case but that the officers named in these five charges applied force upon, and detained, the appellants. Prima facie, their acts were unlawful and the burden lay upon the prosecution to demonstrate in the case of each officer that his or her act was lawful, thereby rendering resistance unlawful. Expression is given to this approach by the terms of section 36(b) of the Offences against the Person Ordinance and section 63 of the Police Force Ordinance, making it an offence to assault or obstruct an officer in the execution of his duty. 131.An arrest does not become unlawful merely because it subsequently transpires that the offence was not in fact committed or not committed by the suspect arrested. So much is obvious from the terms of section 50 of the Police Force Ordinance, Cap 232 which provides, in so far as is here relevant that:
It must follow that if a police officer reasonably believes an offence to have been committed and, in pursuit of that reasonable belief, effects an arrest, the arrest is lawful no matter that it subsequently turns out that the offence was not committed, or was not committed by the arrested person. I note in passing that the section is different from sections to which authorities in some other jurisdictions refer, in its additional and alternative basis for arrest which is a reasonable belief that a person is to be charged, a basis that may well have been of significance in this case had that been the basis put forward. 132.I find further comfort for the point I have just made from the judgment of the Lord Justice Clerk, Lord Wheatley, in Dryburgh v Galt 1981 J.C. 69, 72, where he said :
133.Whether in effecting arrests, the officers who actually arrested appellants were or were not acting in the execution of their duty depends in each instance whether:
134.The magistrate evidently came to the conclusion that the Superintendent who gave the original warnings and gave instructions that arrest action be taken both believed the offences to have taken place and reasonably so. It will be apparent from the text and tenor of the earlier part of this judgment that I cannot accept that finding, certainly in so far as the objective aspect goes. But that is not the end of the matter, for it is to the arresting officer’s conduct to which we must look; and there may be circumstances, so it seems to me, where such an officer’s conduct is lawful, although that of the instructing officer, had he effected the arrests himself, would not have been. 135.Section 24(6) of the Police and Criminal Evidence Act 1984 (England and Wales) provides that :
In relation to this provision, it has been said that:
136.In my opinion, the same principle applies to section 50 of the Police Force Ordinance, a section which is of the former category, that is to say, that it requires the arresting officer personally to suspect the commission of the offence and reasonably so. A mere instruction, without more, will not suffice. This is explained by Lord Steyn in O’Hara, at pages 293-294:
137.As Freedman points out, at page 338, ‘Lords Steyn and Hope (with whose speeches Lords Goff, Mustill and Hoffman agreed) stressed that the statute made the lawfulness of the arrest depend on the arresting officer having a suspicion on grounds which are present in that officer’s mind and which are objectively sufficient to provide a reasonable basis for that the suspicion.’ 138.Thus far, we see that the person who has to house the reasonable suspicion is the arresting officer himself, and that a mere request or instruction without more may well not be sufficient for the arresting officer properly to assert that he reasonably suspects the commission of the offence by the person arrested. That said, the circumstances in which an officer who is part of a team may properly so assert will vary infinitely, and there is no warrant for a suggestion that he may not rely on the information provided by others. The point was made by Lord Hope in O’Hara, at pages 301-302:
139.Mr Haynes relied on the decision in R v Yeung Ho Kwong [1991] 1 HKC 83, but that decision seems to me to be off the point. In that case, the appellant had been arrested by a police constable on the instruction of his sergeant, and the magistrate had held that the order for arrest given by the sergeant was in excess of the sergeant's power and not in the due execution of his duty with respect to the appellant. However, the appellant was convicted of an assault upon the constable on the basis that at the time of the assault, the constable was not in the course of effecting an arrest. The Court of Appeal held that on the facts it seemed relatively obvious that at the time of the assault, the appellant had indeed been arrested and that, therefore, in the light of the finding that the arrest was in excess of the sergeant's power, the assault could not be said to have taken place in the due execution of duty. The case is only authority for the proposition that however unnecessary or distasteful an assailant’s conduct upon a police officer might in a particular case be, an assailant cannot be found guilty of a charge alleging assault upon an officer in the due execution of that officer’s duty, if at the time of the assault the officer was not acting in the lawful execution of such a duty. This case 140.So much then for the principles. Their application in a particular case may be altogether more difficult, and this case is one such example. 141.There can be no doubt but that the magistrate in this case was fully aware that the persons upon whom his attention had to focus for the purpose of the second set of charges were the officers who actually arrested the appellants and took them to the vans which were to transport them to the police station, and who then later sought to take them from those vans; and that it was contended that all that those officers had done was to obey an instruction and had not themselves harboured any grounds to suspect the commission of an offence. So much is clear from argument advanced on 3 and 4 July 2002 (see, for example, the submissions made at page 1895 of the appeal bundle), and we see from those exchanges that the prosecution was to call officers to deal with the very issue. The same point was made by Mr Haynes in his closing submissions (see pages 96 and 97 of the appeal bundle). Though lacking in particularity in this regard, the Findings themselves (at page 276) illustrate that the magistrate addressed the issue of personal assessments:
142.We have not been taken to the evidence of the officers named in charges 3 to 6 (charge 7 did not involve an arresting officer) as part of any attempt to demonstrate that they could not have harboured the requisite state of mind. Indeed, we do not have the transcript of the testimony of Inspector Ho (charge 3) or of WPC Wong (charges 4 and 5), but only of WPC Chan (charge 6) and Inspector Chan (charge 7). In so far as it seems clear that the magistrate did address the question of the states of mind of the arresting officers, it seems to me to be difficult for the appellants to demonstrate, without reference to the effect of their testimony that his conclusion was erroneous. 143.This is not a case in which arresting officers were told without more to go to some household, for example, to arrest a suspect for a named offence. There was evidence that there was a briefing of the various officers and, significantly, they went to a place where the appellants were still self-evidently holding a demonstration in a public place. The evidence was (appeal bundle page 1241) that a Superintendent Hodson was in charge of arrest action and whose unit was summoned to the scene ‘to take arrest action if necessary’. The evidence of Superintendent Chiu was that ‘I was there with him [Hodson] all the time.’
144.There is reference too in the Statement of Findings to the fact that Inspector Ho was ‘briefed at about 11:25am by PW11 about the demonstration’ (see page 274 appeal bundle); and there is also in the appeal bundle the testimony of WPC Chan (PW17) to whom the magistrate makes reference as one of the arresting officers. According to her evidence, she and WPC Wong (PW15) were part of a group who were given instructions by a woman sergeant to arrest and remove female members of the demonstrating group. The question was asked (p. 1859):
Similarly in cross-examination:
145.On the evidence placed before us, I am satisfied that, despite such flaw as their may have been in the Superintendent’s approach to the issue of public place obstruction, there is enough upon which the magistrate could properly conclude that the arresting officers themselves had reasonable cause to suspect the commission of an offence under section 4(28) of the Summary Offences Ordinance. They had been briefed and they went to the very scene where the demonstration was still afoot. Mr Haynes points to the fact that at the time the arresting officers went to the scene, the situation had changed, in that barriers had been erected, and that therefore the facts upon which the original view had allegedly been formed that an obstruction had been caused were no longer the same facts. This he says is highly material. The answer is that for the purpose of section 50 of the Police Force Ordinance it might not be material at all. The question for the arresting officers was not necessarily whether they reasonably suspected that an offence was in the course of commission at the very time of arrest, but rather whether they reasonably suspected that one had been committed. I think that it can reasonably be said that an officer who is given a briefing that an obstruction has taken place, and is told that those who were obstructing are still in situ, and then himself or herself sees persons fitting the description of the described group actually occupying the described place has reasonable, even if mistaken, grounds for suspecting the earlier commission of the offence. It must follow from this that the conduct of Inspector Ho who was party to the arrests and of WPC Wong in effecting arrests was lawful; and it is therefore difficult to conclude other than that their conduct in taking the appellants to the police station, and in removing them from the van, was other than conduct in the lawful execution of their duty. Indeed, section 51 of the Police Force Ordinance provides that: “Every person taken into custody by a police officer with or without a warrant, except a person detained for the mere purpose of taking his name and residence or detained under section 54, shall be forthwith delivered into the custody of the officer in charge of a police station or a police officer authorized in that behalf by the Commissioner.” And it seems to me also that the conduct of the Inspector at the briefing room must have been conduct in the lawful execution of her duty. 146.It follows that I would dismiss the appeals against conviction in relation to charges 3 to 7 inclusive. Conclusion 147.For the reasons I have provided, I would:
Hon Ma CJHC : 148.It follows from the above judgments that : -
Mr Gerard McCoy SC on fiat and Mr Kevin Zervos SC, SADPP of the Department of Justice for HKSAR/Respondent Mr John Haynes instructed by Messrs Ho, Tse & Wai for the1st, 5th, 6th, 9th, 10th and 14th Appellants Mr Paul Harris instructed by Messrs Ho, Tse & Wai for the 2nd, 4th, 7th, 12th and 13th Appellants Mr Andrew Bruce SC instructed by Messrs Ho, Tse & Wai assigned by the Director of Legal Aid for the 8th, 11th, 15th and 16th Appellants 3rd Appellant in person (Absent) Appeal by 1st, 5th, 6th, 8th - 10th, 13th, 16th Appellants to Court of Final Appeal. Appeal allowed. Please refer to the appeal judgment of FACC19/2004. |
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