Read the full judgment text of FACC 000019/2004 on BabelCite. This FACC judgment was delivered on 5 May 2005 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ.
Criminal law – public place obstruction – constitutional right to demonstrate – freedom of assembly – freedom of expression – Basic Law Article 27 – Basic Law Article 28 – Hong Kong Bill of Rights Articles 5, 11 – Summary Offences Ordinance Cap 228 s.4(28) and s.4A – Police Force Ordinance Cap 232 s.50(1) and s.63 – Offences Against the Person Ordinance Cap 212 s.36(b) – peaceful demonstration by Falun Gong members outside Liaison Office of the Central People's Government on 14 March 2002 – four Swiss practitioners conducting hunger strike, 16 demonstrators in total, static and peaceful – wide pavement of about 9.5 metres – demonstrators displaying banner 'Jiang Zemin: Stop Killing!' – police erected barriers and arrested demonstrators for obstruction – magistrate's convictions on first to sixth charges including public place obstruction, wilful obstruction of police officer and assault on police officer – Court of Appeal quashed the public place obstruction convictions but upheld the wilful obstruction and assault convictions on basis arrests for obstruction were lawful – present appeal concerning wilful obstruction and assault convictions only – whether unlawful arrests vitiate subsequent custody such that police are not acting in due execution of duty – held yes – Article 28 of Basic Law and common law (Christie v Leachinsky, Griffin v Coleman) establish that continued detention pursuant to unlawful arrest perpetuates the unlawfulness – 'no nexus' argument rejected – whether s.50(1) of PFO 'reasonably believes will be charged' limb permits arrest without reasonable suspicion – held no – limb must be read consistently with constitutional guarantees against arbitrary arrest to require reasonable suspicion of guilt (Fox, Campbell and Hartley v UK, O'Hara v UK applied) – whether arresting officers had reasonable suspicion of public place obstruction without lawful excuse – held no – briefings and observations at scene addressed fact of obstruction but not material element of unreasonableness in context of constitutional right to demonstrate – arresting officer must personally have reasonable suspicion of all material elements of offence – four-officer team (Sergeant Ma, WPC Wong, WPC Chan, WPC Chan Hoi-lei) were the actual arresting officers – whether convictions for common assault should be substituted – held no – question of excessive force by demonstrators was never examined below – not appropriate at final appellate level – whether 14-month delay between hearing and Court of Appeal judgment violated Article 11(2)(c) – not decided as convictions quashed on other grounds – Chief Judge's stated reason (waiting for Leung Kwok Hung) not objectively justified – duty to give judgments within reasonable time reiterated – appeal allowed – convictions on third to sixth charges quashed – no substitution of common assault – costs of appeal to appellants with legal aid taxation – liberty to apply for costs below
Legal issues: Effect of unlawful arrest on subsequent police action maintaining custody · Construction of 'reasonably believes will be charged' limb of s.50(1) Police Force Ordinance · Whether arresting officers had reasonable suspicion of public place obstruction · Whether common assault convictions should be substituted
Outcome: Appeal allowed; convictions on the 3rd to 6th charges (wilful obstruction of police officer and assault on police officer) quashed; no substitution of common assault convictions
Cited by 2 cases · Cites 1 case