HKSAR v. Leung Kwok Hung and Others

HCMA335/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.335 OF 2006

(ON APPEAL FROM ESCC 4516 OF 2005)

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BETWEEN

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Before : Hon Nguyen J in Court

Dates of Hearing : 29 September, 3 and 4 October 2006

Date of Judgment : 5 January 2007

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J U D G M E N T

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The trial

1.On 21 March 2006 the five appellants were convicted after the trial by Mr Josiah Lam sitting at Eastern Magistracy of two charges : First charge, obstruction of a public place, contrary to section 4A of the Summary Offences Ordinance, Cap.228 which allege that on the 29 April 2005 at the entrance of the south bound (Hong Kong bound) tunnel of the Eastern Harbour Tunnel, without lawful authority or excuse, they left four vehicles which obstructed, inconvenienced or endangered persons or vehicles in the said public place.  Second charge, doing an act whereby obstruction may accrue to a public place, contrary to section 4(28) of the Summary Offences Ordinance.  The particulars of the charge were that on the same day at the same place the five appellants without lawful authority or excuse did an act, namely assembling together and displaying a banner of 5.9 metres x 1 metre outside the entrance of the tunnel whereby obstruction, whether directly or consequentially might accrue to a public place.  The magistrate sentenced the 1^st to 3^rd appellants to concurrent terms of 12 days’ imprisonment on each charge and the 4^th and the 5^th appellants to concurrent terms of 12 days on each charge suspended for 12 months.  At the trial the 1^st appellant was unrepresented and the others were represented by counsel.  The five appellants now appeal against both their convictions and sentence.  The first three appellants were granted bail by the magistrate pending appeal.

The prosecution’s case

2.The prosecution’s case as summarised by Mr Robert Lee, junior counsel for the respondent, was that on the day in question the five appellants arrived at the entrance of the Eastern Harbour Tunnel at 12.45 p.m. in four vehicles to demonstrate against the increase in toll charges which was to take effect on the 1 May 2005.  They left the vehicles blocking the two lanes to the south bound tunnel and they assembled and stood in a line straddling the two lanes of the Hong Kong bound tunnel.  They displayed the banner mentioned in the 2^nd charge to the on-coming traffic and chanted slogans with the assistance of loud hailers.  The appellants stayed at the location and continued with their demonstration until 13:11 hours when they were arrested and taken away by the police.  According to the prosecution, the acts of the appellants caused a total blockage of the Hong Kong bound tunnel resulting in the tunnel company having to convert one lane of the Kowloon bound tunnel for use by vehicles heading for Hong Kong.

The problems

3.The trial was beset with the following problems :

(i) The whole of the prosecution’s case was formally admitted by all five appellants who made the admissions set out in the 17 paragraphs of the document entitled Summary of Facts.  This was despite the fact that the 1^st appellant was unrepresented.

(ii) The order of the speeches which represented the parties’ closing addresses was reversed.

(iii) Because of an apparent discrepancy between two paragraphs of the admitted facts, the magistrate had to engage in a long exchange with the 1^st appellant and the counsel for the other appellants and also with prosecuting counsel.  The exchange resulted in the prosecution applying for leave which was granted by the magistrate to re-open the prosecution’s case by calling two witnesses despite the fact that by that stage the defence case had closed and all speeches by all the parties had been completed.  This event caused the 2^nd to the 5^th appellants represented by Mr Martin Lee, SC, and Mr Eric Shum to rely on one of their grounds of appeal which was that justice had not manifestly and undoubtedly been seen to be done.

(iv) There was no evidence adduced whatsoever as to whether or not the members of the public who were caught up in the procession of vehicles which could not go through the tunnel because of the demonstration, actually tolerated the demonstration.

4.Apart from item 3 above which was a ground of appeal advanced by counsel, the other three items were not relied upon specifically by the appellants.  As regards the order of speeches being reversed, I specifically, during the hearing of the appeal, asked Mr Lee, SC, if he was relying on that and he said he was not.  In this regard I take into account the case of Chou Shih Bin v. HKSAR, FACC11/2004 where the Court of Final Appeal decided that an appeal under section 113 of the Magistrates Ordinance was by way of re-hearing on the evidence before the trial court and that the appellate court should quash a conviction which it considered to be unsafe.  The CFA adopted what was said by Rigby J in Lam Kau v. R. [1962] HKLR 234 where the Full Court held that the provisions similar to section 113 created an appeal “at large” and rejected a submission that the appellate court should not form its own independent judgment.

Matter (i) above

5.Under section 65C of the Criminal Procedure Ordinance, Cap.221, formal admissions can be made by an unrepresented defendant.  See Lam Man Woo v. The Queen [1974] HKLD 331.  However, as Silke JA in The Queen v. Chan Ming Luen [1987] HKLR 1099 at 1101 noted :

“Paper trials can be frequently unsatisfactory.”

6.In the present appeal, the formal admissions indeed created a problem : in paragraph 7 it states :

“The defendants then resumed their demonstration.  At about 1249 hours, they took up the same position at the entrance of the south bound tunnel, namely assembling in a line, straddling the two lanes facing the on-coming traffic.  They displayed the banner, chanted slogans and made speeches against the rise in toll charges.  In the meantime (emphasis added) the four vehicles of the defendants were removed from the location by the staff of the EHD, one by one, by tow trucks.”

7.This paragraph immediately created the problem of what does the phrase “in the meantime” mean.  Mr Lee, SC, submitted that it must mean that by 1249 hours the four vehicles were removed.  If that were the correct interpretation of that phrase, then paragraph 7 contradicts paragraph 13 of the admitted facts which states, inter alia :

“PC 48980 also took five photographs at the location at 1302 hours showing the positions of the three vehicles and the defendants.”

This was indeed the problem which caused the magistrate to start to engage in that long exchange with the 1^st appellant and the two counsel appearing before him, because the magistrate was concerned that he should know what time it was that the obstruction by the four vehicles ceased because his view was that if he did not have that information he could not adjudicate on the first charge.

Matter (ii) above

8.What happened at the trial was that after the prosecution closed its case, the 1^st appellant gave evidence after which counsel for the 2^nd to the 5^th appellants informed the court that he would not call any evidence.  The 1^st appellant then delivered his final address and he was followed by counsel for the 2^nd to the 5^th appellants.  Mr Robert Lee, counsel for the prosecution, then delivered his final address.  In the respondent’s written submission, it was stated :

“The parties agreed that since the defence would raise legal issues in their closing addresses and the prosecution would prepare a written submission, the defence should make submissions before the prosecution.”

9.During the hearing of the appeal, I asked Mr Robert Lee why the order of speeches was reversed and what counsel told me was that the defence had indicated that they would “challenge the law” and so it was agreed that the prosecution should address last so that the prosecution could reply to the points of law raised by the defence.  I did not understand what Mr Lee meant by the defence “challenging the law”.  The law is the law and counsel make submissions on the law.  Counsel do not challenge the law.  At any rate, my view is, and I indicated this to counsel during the hearing of the appeal, that in the course of a normal trial, prosecuting counsel would have to anticipate what matters of law the defence might raise and deal with them in his own final address.  The defence always has the last say.  It is only if the defence, in the view of the prosecution, sets out the law erroneously or misinterpretes the law should the prosecution apply for leave to reply on the law which has been wrongly stated to the court.  Even then, this should occur only sparingly and only in trials where there is no jury sitting with the judge.

10.That the practice in our courts is that the defence in a criminal case always has the last word is incontrovertible.  In Archbold Hong Kong 2007 at page 274, the table of order of speeches is set out and table No.1 is applicable to the instant case :“When the accused is not defended by counsel and calls no witnesses to the facts except himself :” it is stated that after the defence evidence the defendant addresses the jury in his defence, thereby clearly implying that the prosecution does not address the jury.  When the accused is defended by counsel, it is also stated that it is counsel for the defence who sums up the case following the speech by counsel for the prosecution.  In Criminal Procedure (Trial on Indictment), by A. Bruce, at paragraph 1053, Chapter 6, the learned author states :

“The closing submission for the prosecution is given immediately after the close of the defence case and before the closing submissions (if any) of the defence.  The last word is given to the accused or his counsel.  If the accused has given evidence, but called no other witnesses, the prosecutor may sum up his case after the close of the case for the defence.  He may comment on the testimony of the accused.  Such right must be used sparingly and with becoming brevity.  The right to give a closing submission extends to cases where the accused does not give or call evidence and may be given even if the accused is not represented by counsel.  However, such a speech, if made at all, should be restrained and brief.”

The author mentions section 56(2)(a) of the Criminal Procedure Ordinance and states that that section abrogates the traditional right of reply granted where the Secretary for Justice or the Solicitor General appear to prosecute the case.  Section 56 of the Criminal Procedure Ordinance admittedly only applies to trials in the High Court, but in my view the same practice should be adopted for lower courts.  Section 56 states :

“(1) The fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.

(2)   Upon the trial of any person charged with an offence (a) the prosecution shall not be entitled to the right of reply on the ground only that the Secretary for Justice or the Solicitor General appears for the HKSAR at the trial and (b) the time at which the prosecution is entitled to exercise the right shall, notwithstanding any rule of law, be after the close of the evidence for the defence and before the closing speech (if any) by or on behalf of the person charged.”

11.After the 1^st appellant finished his address, the court adjourned and on the following day the court questioned the 1^st appellant about a discrepancy between his evidence and a paragraph in the formal admission, namely during the demonstration did anyone ask the appellants to leave the location.

12.The magistrate raised with the 1^st appellant Article 105 of the Basic Law which protects the rights of property owners on their use of their property.

13.The magistrate asked the 1^st appellant how many cars were obstructed.

14.The magistrate invited the 1^st appellant to address him on how many cars were obstructed.

15.The 1^st appellant replied that this was a matter of evidence for the prosecution to adduce.

16.The magistrate invited the 1^st appellant to address him on this and on the extent of the obstruction caused.

17.The magistrate invited the 1^st appellant to estimate and state the number of vehicles obstructed.

18.The 1^st appellant said if he said 10,000 cars would the magistrate accept it.  The magistrate then chided the 1^st appellant for being impertinent.  The 1^st appellant said it was not his duty to adduce evidence.  The magistrate then said everyone had to assist the court on the extent of the inconvenience caused to the public.

19.The 1^st appellant then asked for time to calculate the number of cars obstructed.  After the adjournment the 1^st appellant submitted that according to his observation of the video clips, he estimated that the number of cars was a few tens of cars.

20.Counsel for the 2^nd to 5^th appellants then made his final address.

21.Prosecuting counsel Mr Robert Lee then made his final address.

22.After he finished, the magistrate asked prosecuting counsel when the cars causing the obstruction were removed.  He then invited both sides to tell him.  Counsel for the 2^nd to 5^th appellants objected and said it would be unfair.  The magistrate then rebuked him and, in a raised voice, said that counsel as a lawyer had a duty, together with his clients to tell him whether clarifying the admitted facts which did not accord with the video tapes, the photographs or the sketches was consistent with the benefit of all parties or whether not seeking to clarify the discrepancy was consistent.  Again in a raised voice the magistrate asked both parties to make more clear the time [when the cars were removed] and if they could not, they had a duty to call witnesses to clarify the matter.  The magistrate finished by saying that unless this matter was clarified, the case could not be considered as at an end because the court could not fully appreciate a factual basis which seriously affected the 1^st charge and so the court could not adjudicate.  There then followed a fairly long exchange between the magistrate and the 1^st appellant and the two counsel.  During the exchange, defence counsel was again chided for not appearing to be willing to do anything to assist.  The magistrate finished the session by saying that the ambiguous words in the admitted facts could be deleted and if necessary, the prosecution could re-open the case and summon witnesses to testify clearly about this point.

23.This led to the prosecution on the following day applying to re-open the case by calling two witnesses.  The application was granted.  The two witnesses gave evidence about when each car was towed away.  After the two witnesses were called, the prosecution again closed its case.  The 1^st appellant elected not to give evidence again.  The 2^nd to 5^th appellants again elected not to give evidence.

24.Both counsel and the 1^st appellant indicated they did not wish to address the court further.

25.The above events led to Mr M. Lee, SC, relying on Ground 1 which was to the effect that the magistrate erred in allowing the prosecution to re-open its case and Ground 2 which was to the effect that justice had not manifestly and undoubtedly been seen to be done.

The authorities

26.Mr Lee, SC, relies, inter alia, on the following cases :

(i) HKSAR v. Chan Wai Man [1998] 4 HKC 76 where Pang J held that in criminal proceedings, the prosecution’s case could not normally be re-opened after it had been closed save in exceptional circumstances.  If it was the omission on the part of the prosecution that a witness was not called or an exhibit not produced, the court should not allow the prosecution to re-open its case.

(ii) R. v. Yiu Lai Kuen [1993] 1 HKCLR 215 where the Court of Appeal quoted and relied on the case of R. v. Pilcher where the Lord Chief Justice said :

“We do not say that in cases like the present where the matter has not arisen ex improviso the judge had no kind of discretion at all, but we are firmly of the opinion that in cases where the matter does not arise ex improviso the judge’s discretion should not be exercised to allow the late introduction of an additional witness called for the prosecution whose evidence was available before the case for the prosecution closed.”

Mr M. Lee’s submission was that the two witnesses were all along available to give evidence.

(iii) HKSAR v. Wong Siu Kan and others, CACC482/2001, where the Court of Appeal said :

“A judge should have the absolute discretion to request either party to clarify evidence at any stage of the trial so as to assist the judge in making a proper verdict.  It must, of course, be subject to the principle, the such an act would not cause the defendant any injustice.”

Mr Lee’s submission in this respect is that, in the instant case, allowing the prosecution to re-open its case did cause the appellants injustice.

(iv) R. v. Cheung Ping Kei [1985] HKLR 57 where the Court of Appeal quoted Lord Hewart, CJ in Rex v. Sussex Justices [1974] 1 KB 256 at page 259 :

“      ... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly been seen to be done ...”

(v)     R. v. Lo Shu Keung & Ors [1992] 1 HKC 71 where the Court of Appeal held that :

“... [A] judge must strive to so conduct himself during a trial that a neutral observer would be left in no doubt that the trial was conducted fairly before a judge who stood above the conflict and retained his air of impartiality throughout.”

The Court of Appeal held that the judge in that case :

“ ... had not only descended into the arena of dispute and departed from the position of neutrality which her proper role demanded of her but she clearly revealed the view that she had prematurely formed of the case.  The conduct of the judge did not display the neutrality that would have led any right-minded observer to conclude that the proceedings were being conducted fairly and impartially.”

The court allowed the appeal.  The court, at page 76, quoted from Lord Parker in R. v. Hamilton [1969] Crim. L.R. 486 :

“Nevertheless we administer an adversarial and not an inquisitorial system.  Until the law is changed, as we hope it will not be, we must seek to preserve it.  One of its most important rules is that the judge must continue to preserve an appearance of neutrality throughout a trial.”

(vi) R. v. Eastman (1995) 84 A. Crim. R. 118 where the Supreme Court of the Australian Capital Territory quoted from the case of Whitehorn (1983) 153 CLR 657 at 682, where Dawson J said :

“A trial does not involve the pursuit of truth by any means.  The adversary system is the means adopted and the judge’s role in that system is to hold the balance between the contending parties without himself taking part in their disputations.  It is not an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side.”

27.Mr John Reading, SC, leading Mr Robert Lee who prosecuted in the court below relies on :

(i) the CFA case of HKSAR v. Lam Tat Ming [2000] 2 HKLRD 431 where Li CJ said at page 441 :

“The test of unfairness is not that of a game governed by a sportsman’s code of fair play. ... Unfairness in this respect is to be judged against and only against what is required to secure a fair trial for the accused. ... However, it is important to observe that in a just society, the conviction of the guilty is in the public interest, as is the acquittal of the innocent.”

(ii) HKSAR v. Wong Siu Kan and others, CACC482/2001, where the Court of Appeal expressed the view that :

“… a judge should have the absolute discretion to request either party to clarify evidence at any stage of the trial so as to assist the judge in making a proper verdict ... subject to the principle that such an act would not cause the defendant any injustice.”

(iii) Leeson v. Director of Public Prosecutions [2000] RTR 385 where it was said that :

“... Justice will not be done if defendants are acquitted purely because of an oversight which was capable of being corrected there and then.”

(iv) Jolly v. Director of Public Prosecutions [2000] CLR 471 where the Divisional Court said that there was a general discretion in the court to permit the calling of evidence at a stage later than the close of the prosecution’s case but before exercising that discretion, the court would look carefully at the interests of justice overall, and in particular, the risk of any prejudice whatsoever to the defendant.

(v) In the case of HKSAR v. Lui Kin Hong Jerry, CACC378/1998, the Court of Appeal quoted from the English case of R. v. Saville, Criminal Appeal 4181/91, unreported, where the Court of Appeal in England said :

“... Rather it is the duty of the judge to ensure that criminal proceedings are tried fairly and efficiently, and to intervene as necessary to ensure that that goal is achieved.”

28.Mr Reading submits that this was not a discrepancy in the admitted facts but a misunderstanding between counsel as to what a fact meant and that the misunderstanding only arose after the close of the prosecution’s case.  Mr Reading’s submission was that the magistrate was just being robust and because of the uncertainty, he had to cure the dilemma.  Counsel submits that the appellants suffered no prejudice whatsoever by the calling of the evidence.

The grounds of appeal

29.To summarise the grounds of appeal put forward by Mr Lee, they are :

(1) Ground 1 : The magistrate erred in allowing the prosecution to re-open its case.

(2) Ground 2 : Justice had not manifestly and undoubtedly been seen to be done and therefore there was a material irregularity.

(3) Ground 3 : The magistrate erred in failing to recognize and uphold the right of silence of the appellants and unduly attaching adverse effect against the appellants who exercised the said right.

(4) Ground 4 : The magistrate erred in finding that the public could not be reasonably expected to tolerate the subject obstruction.

Mr Lee’s submission was that Ground 1 could only assist him on the 1^st charge and the same applies to Ground 4.  He submits that Ground 2, taken in conjunction with Ground 3, helps the appellants on both charges.

Conclusions

30.Taking the overall scenario of the trial as outlined above, I am troubled by the fact that the order of speeches was reversed and that this was done in a case where a defendant was appearing in person.  To my mind, and in my judgment, there was no justification whatsoever for the order of speeches to be reversed.

31.As I pointed out in the course of the hearing of the appeal, prosecuting counsel should and could have anticipated what legal points would be made by the defence in their final addresses and could have dealt with them in his final address which should have been made before the defence speeches.

32.The problem of making the 1^st appellant, who was the 1^st defendant, speak first before everybody else, was highlighted by the fact that in the course of that address, the magistrate found it necessary to ask the 1^st appellant a number of things including asking him to estimate the number of cars which had been obstructed or inconvenienced by the protest.

33.The magistrate also questioned the 1^st appellant about a discrepancy between his evidence and a paragraph in the formal admission, namely, during the demonstration, did anyone ask the appellants to leave the location.  This was wrong and should not have happened because, as was pointed out by Roberts CJ in R. v. Chan Chun Man [1986] HKC261 at 266 :

“... It is likely to happen, from time to time, that evidence which contradicts, or is inconsistent with, the contents of an admission, is given during a trial.  If this occurs, the admission must prevail, since it is conclusive.”

34.But that was not the end of the saga because when the 1^st appellant said 10,000 cars in answer to that question from the magistrate, the magistrate chided him for being impertinent.  In reply to the 1^st appellant’s answer that it was not his duty to adduce evidence, the magistrate then said that everyone had to assist the court on the extent of the inconvenience caused to the public.

35.Furthermore, after prosecuting counsel Mr Lee finished his final address, the magistrate asked him when the cars causing the obstruction were removed.  He then invited both sides to tell him.  As narrated above, after counsel for the 2^nd to 5^th appellants objected and said it would be unfair, the magistrate, in a raised voice, rebuked him and said that, as a lawyer he had a duty together with his clients to tell him [the magistrate] whether clarifying the admitted facts was consistent with the benefit of all parties.   Again in a raised voice, the magistrate asked both parties to make more clear the time when the cars were removed and if they could not, they had a duty to call witnesses to clarify the matter.  This was one of the matters relied upon by Mr Lee, SC, for his submission that the magistrate failed to uphold the right of silence of the appellants (Ground 3).

36.In the course of the exchange which then followed between the bench and the bar, defence counsel was again chided for not appearing to be willing to do anything to assist.  So, whether it was correct for the magistrate to allow the prosecution to re-open the case after the defence case and addresses had finished, it was a combination of that together with what happened after the 1^st appellant finished his final address which could well lead an informed neutral observer to ask the question : “Is this magistrate acting impartially and being fair to both sides?”

37.In my judgment, unfortunately, even if justice was done, it was not manifestly seen to be done.  This would constitute a material irregularity, and on this ground alone, the appeals against conviction must be allowed.

The evidence on tolerance

38.There is a further matter and that is the subject matter of Ground 4 of the grounds of appeal.  There was, in fact, no evidence adduced to show whether the members of the public who were affected by the protest in fact tolerated the inconvenience.  As Bokhary PJ said in HKSAR v. Yeung May Wan and others [2005] 8 HKCFAR 137 at 181 :

“... But public place obstruction does not consist of mere obstruction.  It consists of unreasonable obstruction in the sense of obstruction that the public cannot reasonably be expected to tolerate...”

39.Mr Reading relies on what was shown on the second tape which showed that during the time when the cars which were obstructed were waiting for the tunnel to be cleared, about 20 motorists turned around and left.  This is, in fact, mentioned in paragraph 13 of the Statement of Findings which states :

“It can be seen from the video tapes that 20 vehicles would not wait and they turned in front of the toll booths to enter the opposite carriageway to leave the tunnel.”

40.There is mention in the admitted facts of two drivers, surnamed Tsang and Ng, who were located by the police.  In the admitted facts, it was stated that the two drivers waited for about five minutes before they were able to enter one of the lanes of the Hong Kong bound tunnel.

41.Mr Lee, SC, submits that neither of the two drivers stated that they were annoyed or angry at having to wait for five minutes before being able to enter the tunnel.  Mr Lee also submits that there was no evidence adduced in the trial of the tolerance level of members of the public.

42.Mr Lee also submits that the drivers of the cars which were inconvenienced would have been more tolerant than the average motorists because these drivers, being patrons of the Eastern Harbour Tunnel, would have been affected by any increases in the toll which was what the demonstration was protesting against.

43.Mr Lee also submits, and this is borne out by the admitted facts, that the police and the Eastern Harbour Tunnel staff appeared to be in perfect control of the situation and were in full command of the situation.  It was submitted that the appellants wanted to protest and they were intentionally creating an obstruction.  The submission is that as long as the obstruction was not unreasonable, it was acceptable in law.  The police, it was said, were balancing the rights of the demonstrators and those of the public.

44.It is quite clear that this protest was known to the authorities and the mass media before the appellants arrived at the tunnel.  As was stated in the Statement of Findings, the video tapes showed that police officers and reporters had positioned themselves on the footbridge over the toll booths.  As was stated in the admitted facts, the staff of the tunnel company and police officers attended the scene and responded to the protest by taking certain actions mentioned in the admitted facts.

45.While the defendants were carrying out their demonstration, there was another group of protestors who were assembled at the footbridge above the toll booths to protest about the same matter.  A banner was also hung at the footbridge.  The police took no action against these protestors.

46.The appellants had arrived at the Hong Kong bound tunnel in four vehicles at 12:45 hours.  At 12:46 hours, the toll booths were suspended.  One of the four vehicles blocking the right lane of the Hong Kong bound tunnel was moved to the left lane thereby clearing the right lane for Hong Kong bound traffic.  As a result of that action, 30 odd vehicles were able to enter the Hong Kong bound tunnel and proceeded on their way to Hong Kong, and that was at 12:49 hours.

47.If the harbour tunnel company had seen fit, that right lane of the Hong Kong bound tunnel could then have been used to allow single file traffic to proceed to Hong Kong side but the tunnel company decided against that action and at 12:56 hours began to tow the four vehicles blocking the left lane through the tunnel to Hong Kong side.

48.As the cars were being towed away, the appellants stood in one line holding the banner, chanting slogans but at the same time, straddling the two lanes of the Hong Kong bound tunnel.

49.Police officers were present at the scene.  It is not clear what rank the officer in charge of the police officers at the scene was.  Whatever his rank was, he could have, on instructions, taken arrest action against the appellants but the police, for whatever reasons, declined to take such action.

50.They decided to wait until 13:05 hours when a police superintendent was dispatched to the scene and, for the first time, he warned the appellants that they might be arrested if they persisted in their action to block the tunnel.  Because the appellants refused to stop their action, they were then arrested by the police and, at 13:06 hours, were taken from the entrance of the tunnel to a police vehicle.

51.All these events show, in my view, the tolerance accorded to the appellants by the harbour tunnel company and by the police.  It was only as a result of the tolerance afforded to the demonstrators that the demonstration in fact took as long as it did.

52.The appellants were there to carry out the demonstration to protest against the proposed increase in the toll charges.  It was a symbolic action on their part and they would not have resisted any arrest action by the police if the police had decided to carry that out earlier than they did.  If the appellants had been arrested and removed from the scene as I pointed out above, the protest would not have lasted as long as it did.

53.This is, to my mind, clear evidence of tolerance, not by members of the public specifically, but by the authorities in control of the scene, namely, the harbour tunnel company staff in conjunction with the police.  Therefore, in my judgment, even if the material irregularities which occurred during the trial had not happened, on the ground of tolerance by the authorities itself, I would have allowed the appeals against convictions.

54.This was in fact the thrust of the 1^st appellant’s submission, namely that the harbour tunnel company and the police had tolerated the demonstration.  The 1^st appellant submits that theirs was a peaceful demonstration and no one from the harbour tunnel company appeared in court to testify that the appellants’ action was not tolerated by the harbour tunnel company.

55.For the reasons which I have mentioned, the appeals against convictions by all the appellants are allowed and the convictions and sentences are quashed.

Mr John Reading, SC, DDPP, leading Mr Robert K.Y. Lee, SGC, for HKSAR

The 1^st Appellant, in person

Mr Martin Lee, SC, instructed by Messrs K. M. Cheung & Co., for 2^nd to 4^th Appellants

Mr Eric Shum, instructed by Messrs K. M. Cheung & Co. (DLA), for the 5^th Appellant