“T” v. Commissioner of Police
Read the full judgment text of HCAL 102/2011 on BabelCite. This High Court CFI judgment was delivered on 16 July 2012.
1. Hong Kong citizens are familiar with public demonstrations. Our right to express views in such manner is protected as one of the fundamental rights under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights. However, such right is not absolute. It is subject to restrictions prescribed by law and such law must comply with the criteria set out in Article 16(3) of the Bill of Rights. Do such restrictions include compliance with requirements under the Place of Public Enterta
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HCAL 102/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 102 OF 2011 ____________ BETWEEN
____________ Before: Hon Lam J in Court Date of Hearing: 4 June 2012 Date of Judgment: 16 July 2012 _______________ J U D G M E N T _______________ 1.Hong Kong citizens are familiar with public demonstrations. Our right to express views in such manner is protected as one of the fundamental rights under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights. However, such right is not absolute. It is subject to restrictions prescribed by law and such law must comply with the criteria set out in Article 16(3) of the Bill of Rights. Do such restrictions include compliance with requirements under the Place of Public Entertainment Ordinance Cap 172 [“PPEO”]? Can public demonstration also at the same time be regarded as public entertainment if the event in question embodies programme which comes within the definition of entertainment under the PPEO? Under what circumstances (if any) would an organizer of a political demonstration at public place be obliged to obtain a licence under that ordinance? These are the main issues in this judicial review. The Applicant says that public demonstration should not be within the scope of the PPEO. In the Amended Originating Summons, the Applicant seeks the following relief,
Two different lines of argument are advanced on behalf of the Applicant:
2.Parties have agreed on the relevant facts. They are set out in the Statement of Agreed Facts [“the Agreed Facts”]. I shall attach the Statement to this judgment and it would be incorporated as part of the judgment. 3.As stated in the Agreed Facts, initially the responsible person in the organizers of IDAHO applied for a licence under the PPEO and notified the Commissioner of Police under the Public Order Ordinance Cap 245 [“POO”] of the intention to hold a public meeting. Two different statutory regimes processed by two different authorities were involved. I shall start with an introduction of the two regimes. The PPEO regime 4.The Secretary for Home Affairs authorized the Director of Food and Environmental Hygiene under Section 3B of the PPEO to be the licensing authority under that ordinance. The Principal Assistant Secretary for Home Affairs accounted in her affidavit the background and legislative history of the PPEO. She traced its origin back to the Theatres Regulation Ordinance 1908. As she said at para 3 of her Affidavit, that ordinance regulated theatres and other places of public resort. Section 3 of that ordinance reads,
5.She described the matters regulated by that ordinance, as set out in Section 6 of it, at para 6 of her Affidavit,
6.In 1919, the 1908 ordinance was replaced by the Places of Public Entertainment Regulation Ordinance 1919. The statutory concepts of “entertainment” and “public entertainment” were first introduced into our statute books. Under section 2 of the 1919 Ordinance, these concepts were defined as follows,
7.Matters regulated under the 1919 Ordinance were similar to those regulated under the 1908 Ordinance though the 1919 Ordinance also provided for censorship of cinematograph films and posters which is not relevant for present purposes. 8.The 1919 Ordinance was amended in 1951. The definition for “entertainment” was amended and a definition for “place of public entertainment” was introduced. There was no amendment in respect of the definition for “public entertainment”. The new definitions were as follows,
9.The objects and reasons of the material amendments were stated in the Gazette,
10.When the 1951 amendments were moved in the First Reading of the Bill in the Legislative Council, the Acting Attorney General said,
11.The ordinance was further amended in 1970. The amendments were to implement some recommendations by the Commission of Inquiry investigating the collapse of a stand at a tattoo held in Sek Kong in November 1968. Moving for the seconding reading of the bill, the Attorney General said, amongst other things,
12.The definition for “place of public entertainment” was amended to the following in 1970,
13.The first part of the definition was narrowed down to a place on which there is either building or erection or structure which is capable of accommodating the public. Therefore, the definition would not cover a place where there was simply a structure for the use of the performers without any accommodation for the public. On the other hand, if there was a temporary stand providing seating for members of the public (as in the case of Sek Kong tattoo), it would come within the definition. 14.In 1980, the definition was amended again. The driving force behind the amendment was the need to cater for mini-cinemas within buildings which have other usages as well. Sub-paragraph (a) was deleted and substituted by the following,
15.With such amendment, the definition was also widened to cover a place which could accommodate the public though the accommodation was not provided at a building, erection or structure. 16.In 1995, PPEO was amended to remove features and provisions which were perceived as being inconsistent with the HKBoR. The definition for “entertainment” was up-dated. Clause 8 of the Bill empowered the licensing authority to impose conditions, including conditions as regard crowd control measures and the provision of first aid services by way of giving effect to the recommendations of the Report of Mr Justice Bokhary on the Lan Kwai Fong incident. 17.In order to strengthen the power of enforcement, amendments were made in 1997 to the PPEO to empower the licensing authority to apply to a magistrate for a Prohibition Order and a Closure Order. 18.The Principal Assistant Secretary stated at para 31 of her Affidavit that the licensing regime under the PPEO is to provide a means of effectively ensuring public safety and order, and to protect the participants to entertainment from the hazards and dangers associated with the gathering of crowds at places of public entertainment. The requirements of the statutory scheme and how the scheme is operated in practice were described by her at paras 34 and 35,
19.Section 4 of the current version of the PPEO provides that no person shall keep or use any place of public entertainment without a licence. There is a three-tier definition under Section 2 defining “entertainment”, “public entertainment” and “place of public entertainment”.
20.Schedule 1 of the PPEO gives a very wide meaning to the word “entertainment”,
21.As we shall see, the construction issue revolved around these definitions. The POO regime 22.The POO regime has been extensively reviewed by the Court of Final Appeal in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229. The Commissioner of Police [“the Commissioner”] is empowered to regulate public gatherings and public meetings under the POO. In respect of public meetings, an organizer is required by Section 7 of the POO to notify the Commissioner in advance and he may prohibit the holding of such meeting if he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others. But he shall not exercise such power of prohibition if such concerns can be addressed by the imposition of conditions governing the holding of such meeting. 23.For present purposes, the following concepts defined under Section 2 of the POO should be noted.
24.In Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, the Court of Final Appeal held that the concept of “public order” under the POO should be narrower than the concept of “ordre public” under Article 16(3)(b) of the HKBoR. In the context of the POO, the Commissioner should only be concerned with public order in the law and order sense of the expression. 25.The notification procedure under the POO requires less information to be given by the organizer than the application procedure under the PPEO. The respective time frame laid down in the ordinances for processing the matter is also different: the POO only requires notification to be given 7 days in advance whilst an application under the PPEO has to be made 42 days before the event. There are powers to process the matter within a shorter duration under both regimes. According to information published by the licensing authority, for functions not requiring erection of any temporary structure, the application could be submitted 18 days in advance. 26.As mentioned in the Agreed Facts, on 11 May 2011 the Commissioner issued a Notice of No Objection to the IDAHO being held subject to compliance with certain conditions. The conditions were,
The right to demonstrate at public place 27.The right of a citizen to demonstrate at public place was considered in Yeung May Wan v HKSAR (2005) 8 HKCFAR 137. In its judgment, the Court of Final Appeal discussed how the constitutional right to demonstrate (protected by Article 27 BL and Article 16 HKBoR) impacted upon the offence of obstruction of a public place under Section 4(28) of the Summary Offences Ordinance Cap 228. The court analysed the offence in terms of two limbs,
28.The second limb was important in relation to the exercise of freedom of demonstration at public place. At paras 42 to 44, the majority discussed what constituted reasonable and usual use for the highway and the need to strike a balance between possibly conflicting interests of different users based on a requirement of reasonableness which is a matter of degree depending on all the circumstances, including the extent and duration of a particular event which causes obstruction, the time and place where it occurs and the purpose for which it is done. At para 44, the following was said in respect of demonstration,
29.For an instance where the exercise of right to demonstrate was held to be unreasonable, see Secretary for Justice v Matt James Pearce HCMA 1078 of 2008, 11 June 2009, Hartmann JA. 30.In the present case, the organizer of IDAHO did not have any exclusive right to occupy the pedestrian precinct. When that portion of the street was used for the event, the organizer only exercised her right to demonstrate at public place. There is no suggestion that such a use exceed the bounds of reasonableness. As such, the holding of the event at Lockhart Road would not be an offence of obstruction. The issue of Notice of No Objection by the Commissioner implies that the obstruction occasioned by the demonstration was done with lawful authority. 31.However, since the organizer did not have any exclusive right of occupation, she did not have the power to exclude other citizens from that portion of the street. But as discussed further below, the police did have the duty and power to maintain law and order including proper crowd control. Such duty and power should be exercised with due regard to the positive duty to facilitate peaceful demonstration. This positive duty was highlighted by the Court of Final Appeal in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at paras 22 to 24. At para 22, it is said,
32.In Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797, A Cheung J (as he then was) applied these principles alongside with the police’s duty to keep the peace in assessing the legality of police action to remove demonstrators in the wake of imminent breach of the peace in terms of the behavior of counter-demonstrators. His Lordship referred to the recent English authorities on the topic: R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 and Austin v Commissioner of Police of the Metropolis [2008] QB 660 and [2009] 1 AC 564. For present purposes, it is relevant to pay regard to the emphasis on proper and advance preparations to deal with a potential situation where breach of peace may occur. At para 32, A Cheung J said,
33.This proposition was derived from para 35 of the judgment of the English Court of Appeal in Austin v Commissioner of Police of the Metropolis [2008] QB 660,
34.The present case does not concern with any breach of the peace. However, in my judgment, one can still derive valuable guidance from these propositions, stemming as they were from the concepts of necessity and proportionality which are equally applicable in the context of permissible restrictions on the freedom of demonstration. In particular, when there are potential issues of public safety being involved in respect of a public demonstration, the duty to facilitate such demonstration has to be exercised with regard to the need to protect the safety and well-being of every citizen who might be present at the scene including those not participating and those not interested at all in the demonstration. Whilst the police does have the necessary powers to deal with different contingencies with regard to the maintenance of law and order and the keeping of public safety, including the power to take actions which might affect innocent third parties in the vicinity, the concepts of necessity and proportionality demand proper and reasonable preparations and precautions to be made in advance at the stage when a public demonstration is planned and when the necessary licence is granted or no objection is given. Thus, the duty to make proper and reasonable advance preparation and precautions does not fall upon the police alone. It is a duty shared between the organizer of the demonstration and the relevant public authorities who as part of the executive arm of the government, as we have seen, have a positive duty to facilitate a peaceful demonstration. The power and duty of the police in crowd control in public place 35.Section 10 of the Police Force Ordinance Cap 232 [“PFO”] provides that the duties of the police force include the taking of lawful measures for, amongst other things,
36.The performance of such duties necessitated the police being empowered to restrict access to a public place where there are reasonable grounds to believe there is a danger of over-crowding. This power is reinforced by Section 17(2) and (3) of the POO in respect of police power over public gatherings. This was the conclusion reached by Justice Bokhary (as he then was) in his Final Report on the Lan Kwai Fong Disaster published in Feb 1993, see paras 7.4 to 7.14 of the Report. At para 7.15, Justice Bokhary said the test is whether something is reasonably necessary for safety. 37.As we have seen above, the powers of the police can also be exercised to prevent a breach of the peace. In this connection, section 17(2) of the POO gives a police officer of or above the rank of inspector to stop, dispense or vary the place or route of a public gathering which he reasonably believes likely to cause or lead to a breach of the peace. 38.Under Section 9 of the POO, the Commissioner of Police may prohibit the holding of a public meeting where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others. But he should only do so when these concerns cannot be addressed by imposition of conditions under Section 11(2). Concerns addressed by the PPEO 39.Though public safety is one of the issues which the police must have regards to in the exercise of the power under the POO and PFO, it is also addressed by the licensing application procedures laid down by the PPEO in respect of occasions coming within the scope of this ordinance. 40.I have referred to the description by the Principal Assistant Secretary of the matters for which regulations could be made under the predecessor of the PPEO. Over the years, the list has expanded. As regards places of public entertainment other than theatres and cinemas, Regulation 162 of the Places of Public Entertainment Regulations [“PPER”] set out how an application for a PPEO licence would be processed. In particular, I will set out sub-paras (2), (3), (7) and (8) of that regulation to give a fair idea as to the extent of details that the licensing authority need to examine in order to ensure public safety is not compromised.
41.See also Regulation 164 in respect of the requirements for temporary structure. 42.Broadly speaking, the regime deals with issues arising from crowd control, structural safety, fire hazards, mechanical and electrical safety as well as sanitary hygiene. Thus, the application has to be considered by officials from different government specializing in different areas. This accounts for the longer processing time as compared with the notification procedure under the POO. 43.The need for such a detail regime cannot be doubted. In going through the legislative history concerning the PPEO, one is reminded of the lessons learnt from the tragedy of the Sek Kong Tattoo in 1968 and the Lan Kwai Fong disaster in 1993. The Sek Kong Tattoo tragedy served as a reminder that structural safety of temporary stands being used in a public event should never be overlooked. The Lan Kwai Fong disaster taught us much about crowd control. Amendments to the PPEO were made in light of the recommendations of the Commissions of Inquiry held in respect of these incidents. Over the years, a meticulous and well-designed system has been put in place to safeguard public safety in relation to events held at public place. 44.The purpose of the PPEO regime is to protect the safety of the members of the public who attend the event held at the place of public entertainment and to avoid disorder in such a place. Further, as illustrated by the Lan Kwai Fong disaster, those happened to be in the vicinity (but not actually attending the public entertainment) could also be affected in case of emergency and in taking precautions for issues of public safety this must be taken into account. 45.Though it can be said that there are some common objectives to be served by both regimes, the PPEO regime is much more sophisticated and addressed many issues which the police does not have the expertise to deal with under the POO regime. Though there is a power on the part of the Commissioner to impose conditions under Section 11(2) of the POO, the POO does not provide for a similar mechanism for the inter-departmental consideration of the safety and hygiene related issues as per the mechanism in the PPEO. The construction issues 46.Mr McCoy SC made two main points in respect of the construction of the PPEO. The first point is that for the purposes of the PPEO the expression “place of public entertainment”, properly construed, does not encompass an open space which is not being enclosed [“the first construction issue”]. The second point is that if the sole or dominant purpose of the event is not for entertainment, it does not come within the meanings of “entertainment” or “public entertainment” for the purposes of the PPEO, as such not governed by it [“the second construction issue”]. On either ground, the organizer of IDAHO was not required to apply for a licence under the PPEO. 47.On the first construction issue, Mr McCoy referred to the following provisions in the PPEO and the legislative history to support his contention,
48.With respect, I do not think arguments (b) or (c) can be of much assistance in terms of shedding light on the first issue of construction. An open space which is not enclosed is capable of accommodating the public as much as a building. As for the regulation of matters which are not apposite for an open space, it has to be considered in the context that the primary objective of the PPEO is public safety and given the variety of forms of public entertainment, there are many aspects of public safety which need to be addressed. As shown by the width of the definition for entertainment in Schedule 1 and the reference to permanent as well as temporary structures, the PPEO was drafted to cater for a large variety of contingencies. Thus, it cannot be expected that every regulatory provision in the regime is applicable to all places of public entertainment within the scope of PPEO. For example, though there are regulations providing for seating, laser equipment, vessel, permanent structures and temporary structures, sanitary fitments, fire service installations and equipment, electrical installation, I do not think it is envisaged by the legislature that the PPEO would only be engaged if the place in question has all these features. 49.In the definition for “structure” in Regulation 2, there are references to matshed, grandstand and tent. In Regulation 164(d), there is a requirement that a temporary structure shall not exceed one storey in height. These are indicia that a place of public entertainment can be an outdoor place. As a matter of actual application of the PPEO, it has never been confined to indoor premises. PPEO licences were granted for the Sek Kong Tattoo and the Lan Kwai Fong incident and these events took place in open space or ground. 50.In his oral submissions, Mr McCoy accepted that a place of public entertainment can be an outdoor place. However counsel submitted that it has to be a place where there is some form of physical demarcation and the organizer can exercise control by way of admission or non-admission of audience. Counsel said demarcation by way of a line of rope, as in the case of Culley v Harrison [1956] 2 QB 71, will be sufficient. 51.I have already referred to the definition of “public entertainment” in Section 2. Section 6 of the PPEO provides for restrictions on authorized sale of tickets for admission to any place of admission. Section 10 provides for conditions that may be imposed in a PPEO licence. Section 10(2)(f) is a condition that “specify the maximum number of persons which may be admitted as regards entertainments taking place in the place to which the licence relates and any such term or condition may specify such a maximum as regards entertainments in general or specify 2 or more such maxima as regards specified entertainments of different classes or descriptions”. 52.By reason of the reference to the concept of “admission”, Mr McCoy submitted that the holding of an event at a place where the organizer has no control by way of admission does not come within the scope of the PPEO. Counsel cited the following dicta Griffith CJ in the Australian case of Scott v Cawsey (1907) 5 CLR 132 at p 138,
And at p 140,
53.That case was decided in the context of the Sunday Observance Act 1780. The purpose and objectives of that piece of legislation is different from the PPEO. Section 1 of that Act imposed a penalty on the keeper of a disorderly house which was “any house, room, or other place which shall be opened or used for public entertainment or amusement” on Sunday and “to which persons shall be admitted by payment of money or by tickets sold for money”. Thus admission on payment was an ingredient of the offence. 54.In that case, entertainment was provided in a large hall, the admission to which did not require any payment. However, sitting accommodation was provided at a portion of the hall and the portion was railed off. Payment had to be made for entering that portion. The majority held that the place where entertainment was provided was the hall instead of the railed off portion. Since the admission to the hall did not require any payment, there was no contravention of the Act. The key issue in that case was whether there was only one place as opposed to two separate places. 55.I was also referred to two other cases on the same Act: Williams v Wright (1897) 13 TLR 551 and Culley v Harrison [1956] 2 QB 71. Mr Mok further referred a case decided under the Betting Houses Act 1853[1] to support the proposition that a place needs not be covered in or roofed and may be an open space. Having considered these cases, given that the words “place” and “admission” were used in different contexts, they are not directly relevant in the present case. 56.Closer to the mark is the case of R v Bow Street Magistrates ex p MacDonald CO/2683/93, 14 Dec 1994. It was a decision of Dyson J (as he then was) under Schedule 12 of the London Government Act 1963. Section 52 and Schedule 12 of the Act provided for the licensing of public entertainments. Para 1(1) of Schedule 12 provided no premises (which includes any place) shall be used for public entertainment except under and in accordance with the terms of a licence. A warrant was issued against a person who always played a guitar with an amplifier in Leicester Square without licence at around the same spot. He sought judicial review against the issue of the warrant. Dyson J referred to the dictionary meaning of the word “place” which includes open space in a city and a square. With regard to counsel’s argument that control of the premises was required before one could be said to be using the place, His Lordship said,
Later he continued,
57.The legislative scheme under Schedule 12 is less detail than our PPEO. It would appear from the judgment of Dyson J that the concern under the Act was more in respect of nuisance and obstruction. This can be gathered from the following observations on which Mr Mok also placed great reliance,
58.Though there was no reference to “admission to the premises” in the London Government Act, para 12 of Schedule empowers the police to “enter” such premises. 59.Having deliberated on the submissions of Mr McCoy and Mr Mok, I come to the conclusion that there is no requirement that the user of the place of public entertainment must have full and exclusive control over who can or who cannot remain at the place. In the present context, it is not necessary for me to decide whether a busker is required to obtain a PPEO licence and I shall leave the point open. However, having regard to the main purposes of the PPEO as discussed above, I am of the firm view that the definition of “public entertainment”, with its reference to the admission of general public, should not be construed as excluding the application of the PPEO to an organized public entertainment held at a public place like part of a street or other pedestrianized area where the organizer does not have exclusive right of occupation. As submitted by Mr Mok, the need to ensure public safety and to maintain public order is more pronounced when a public entertainment is held at a public place. 60.Whilst I accept that admission does connote some kind of control, such control can take many forms. In the context of an event held at public place, crowd control is exercised not only by the police but also the organizer of the events. As we have seen in respect of the No Objection letter for IDAHO, one of the conditions imposed was that the organizer must provide sufficient numbers of marshals to safeguard the good public order of the event. Such marshals exercised a degree of control as to the admission of people into the place in question. 61.As observed by A Cheung J in Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797 at para 24, every ordinary citizen has the power and duty to prevent a breach of the peace in his presence. What His Lordship said at para 25 applied as much to an ordinary citizen as a police officer,
62.Thus, even though an organizer of an event held at public place does not have the exclusive right to occupy the place, during the course of the event the marshals deployed by the organizer have the power and duty to prevent any imminent disorder which would constitute a breach of the peace. Such power can also be exercised for the purpose of crowd control. 63.Further, if necessary, the marshals can request assistance from police officers who would invariably be present on such an occasion for which either PPEO application has been made or notification under POO has been given. Special powers are given to the police under Regulation 174 of the PPER to order the closure or vacation of the place in cases of emergency or for the prevention of disorder. 64.These, in my judgment, are sufficient control to satisfy the criterion of admission. 65.As regards the demarcation of the place, the evidence shows that it could be done even though it was just a portion of the Lockhart Road. The organizer had no difficulty in identifying the area where the intended event was to be held in the original PPEO application which was subsequently withdrawn. In Hong Kong, we are familiar with street bazaars and street festivals. As mentioned, PPEO licence was applied and granted in the Lan Kwai Fong case. In this connection, given the purpose of the PPEO and the matters to which the licensing authority is to have regard, in the context of an application for a place which is part of a street, I am of the view that the demarcation can be more rough and general (as in the MacDonald case) as compared with the cases decided in the context of other legislations serving different purposes. 66.Coming to the argument based on enforcement by way Prohibition Order and Closure Order under Section 11, it is said that these orders would not be appropriate for a public place which is accessible to the public for multi-purposes. Further, Mr McCoy drew attention to the prescribed form of a prohibition order which is addressed to the occupier of the place. He submitted that the organizer of an event at the street is not an occupier. 67.I do not agree that the organizer can never be regarded as an occupier of the portion of the street when the event took place. Take the IDAHO as an example, a stage had been erected at the street for the purpose of the event. It is at least highly arguable that the organizer was, in law, the occupier of the stage. 68.In any event, I do not think one can attach too much significance to the non-applicability of these enforcement measures to the event in question. Since these measures only take effect only as from the 8th day after the relevant orders have been served[3] and the orders can only be made after giving 14 days’ notice[4], they are of little use in terms of temporary event which does not last longer than 21 days. But the inapplicability of these enforcement measures does not mean that such event is outside the scope of the PPEO. It only means that the authority needs to resort to other means of enforcement. 69.I see no reason why in the context of the PPEO and the definition for “place of public entertainment” the word “place” should not be given its ordinary meaning which includes an open space or a portion of a street which is not enclosed. I conclude that the first construction issue cannot prevail. 70.I turn to the second construction issue. This depends on the proper construction of the definition for “entertainment”. The statutory definition in Section 2 of the PPEO refers to the event, activity or other thing specified in Schedule 1. I have commented that Schedule 1 cast a very wide net. 71.Having watched the video produced by the parties taken in respect of IDAHO, I am of the view that part of the event was an exhibition of dancing, as such coming within the meaning of “stage performance” under Schedule 1. 72.Mr McCoy submitted that a political demonstration cannot be an entertainment. He submitted that the word “entertainment” must be given its ordinary meaning and the dictionary meaning of the word is “amusement” and “a public performance or exhibition intended to interest or amuse”. In the alternative, he said “entertainment” within Schedule 1 only becomes a “public entertainment” if the sole or dominant purpose of admission is for “entertainment”. Where the sole or dominant purpose of the admission is for some other purposes such as a public meeting or a political demonstration, “entertainment” incidental to that purpose should not be regarded as “public entertainment”. 73.Since the PPEO has its own definition for “entertainment”, I do not think much insight can be gained from looking at the dictionary meanings. Whilst one can understand that in ordinary casual conversation, the word “entertainment” usually takes account of the amusement contents of the event, it would be difficult to adopt the same approach for the purpose of a regulatory regime aiming at protecting public safety. Whether an event is amusing is always a matter of subjective opinion and different people might have different assessments. This cannot be a good criterion to distinguish between events governed by the regulatory regime and those not so governed. Further, it should not be a relevant criterion in the context of the PPEO because irrespective of the degree of amusement the need to have safety precautions adopted in advance for an event which might draw attendance by members of the public is the same. This explains why there is no reference to the amusement level of the event in the statutory definition. 74.As regards the argument of dominant purpose, the same counter-argument applies. The need to have a regulatory regime in place to protect public safety does not diminish only because the event is organized with a dominant purpose not associated with amusement of the audience. I do not see any scope within the statutory language for grafting this test of dominant purpose into the definition for public entertainment in the PPEO. 75.Moreover, public demonstration and public entertainment are not necessarily mutually exclusive. A political message, like other ideas, can sometimes be more effectively conveyed in a form which is amusing and entertaining. It is up to the person who wishes to voice his or her political stance publicly to choose the mode and means of doing so. If the means chosen involves a form of expression coming within the scope of Schedule 1 of the PPEO, the law imposes an obligation to apply for a PPEO licence and, subject to the argument as to constitutionality, there is no reason why he or she should be exempted from such obligation. 76.As it were, in his oral submissions Mr McCoy told this Court that he advanced the dominant purpose argument only in the context of his constitutional challenge, but not in the context of the construction issues. 77.I therefore reject Mr McCoy’s contentions in respect of the second construction issue. The constitutional issues 78.The constitutional issues arise because in holding IDAHO the organizer was exercising her constitutional rights in freedom of public demonstration and assembly and freedom of expression. I have referred to the freedom of demonstration and assembly at public place in the earlier part of this judgment. For present purposes, I do not see any material difference if the matter is analysed in terms of freedom of expression. 79.I have alluded to the relevant constitutional provisions in the above discussion on the right to demonstrate at public place. Article 27 of the Basic Law should be read together with Article 39(2). The right to demonstrate is also guaranteed under Article 17 HKBoR. Thus, as decided by Chief Justice Li in Gurung Kesh Bahadur v Director of Immigration (2005) 5 HKCFAR 480 at para 27, whether a restriction on such right is permissible should be determined by reference to the limits set out in the relevant article of the HKBoR, viz Article 17. Therefore, I shall only set out Article 17.
80.I accept that the requirement in the PPEO amounts to a restriction to these constitutional rights. The crucial question is whether the restriction is constitutionally sustainable. 81.Mr McCoy submitted that the restriction in the PPEO is unconstitutional because,
82.Counsel said the PPEO is not “prescribed by law” because it conferred a discretionary power on public officials which does not give adequate indication of the scope of the discretion. Mr McCoy prayed in aid the principles set out at paras 26 to 29 of Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229. 83.As held by the majority of the Court of Final Appeal in that case, at para 28, the appropriate level of precision must depend on the subject matter of the law in question. 84.In this respect, I agree with Mr Mok that in the context of the scope of the PPEO and the variety of issues which may arise as regards public order and public safety, the ambit of the regulatory regime under the PPEO scheme must necessarily be a wide one. But width is not to be confused with uncertainty. The PPEO has a set of clear and precise definitions to identify the matters governed by it. I am of the view that its provisions can enable a citizen to foresee with reasonable certainty the consequences of a given action, to know what rules are applicable and how he might lawfully conduct himself in accordance with the rules. It also sets out clear criteria to enable the licensing authority to exercise the discretionary power within its legitimate limits. 85.I reject Mr McCoy’s submission on uncertainty. 86.As regards the challenge on proportionality and necessity, Mr McCoy referred to the proportionality test at para 36 of Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229,
87.Mr McCoy said the legitimate purpose of PPEO has not been made clear. I do not agree. It is quite plain from the legislative scheme that the licensing requirement under the PPEO is for ensuring public safety and public order and, in the context of public entertainment at public places like a portion of a street, to protect the rights of other members of the public who are in the vicinity. These objectives plainly fall within the scope of legitimate purposes under Article 17 HKBoR. 88.The licensing conditions and requirements, as provided by the PPEO and PPER, are rationally connected to these purposes. The need for such a regime is amply demonstrated by the Sek Kong Tattoo incident and the Lan Kwai Fong incident. In the context of IDAHO, the structural safety of the stage would impinge upon not only those participants who performed on the stage but also those pedestrian who happened to be in the vicinity in case of any mishaps. Further, there could be unforeseen emergencies (as in the case of the Lan Kwai Fong incident) which an organizer might not be able to cope with. The PPEO regime provides a sensible and effective pre-event risk assessment mechanism involving all responsible government officials to ensure proper precautionary steps are taken. 89.Coming to the question whether the regime of PPEO is within the bound of “no more than necessary to accomplish the legitimate purposes”, the observations of Chief Justice Ma in Fok Chun Wa v Hospital Authority FACV 10 of 2011, 2 April 2012 paras 75 to 79 must be borne in mind. We are not dealing with a matter within the socio-economic policy of the government. Freedom of assembly and demonstration is a fundamental right in Hong Kong. As the Chief Justice said at paras 75(6) and 79, in this area, the court will be particularly stringent or intense in the application of the justification test. 90.In this respect, Mr McCoy did not attack the proportionality of the requirements under the PPEO per se. Having regard to the safety, security and other issues which the PPEO regime legitimately deals with, the procedure and the requirements imposed on an organizer are, in my view, proportionate and necessary. 91.Rather counsel submitted that the question of public safety and order has already been addressed by the POO, including conditions which could be imposed by the Commissioner of Police under Section 11(2). Thus, the additional regime under the PPEO is unnecessary, as such it fails to meet the last limb of the test. 92.Mr McCoy also referred to the difference in the processing time in the Notification procedure under the POO and a licence application under the PPEO. I have already referred to the possibility of a shorter time frame for a PPEO application. The longer time frame is necessitated by arrangement for inspection of temporary structure by officials from the Building Authority. 93.I think counsel has not taken into account of the need for approval from the Building Authority in respect of any temporary structure or building in any event. In respect of temporary structure approved under the PPEO regime, it will be exempted from the Buildings Ordinance under Section 41(4) of the Buildings Ordinance. Otherwise, by reason of the definition for “building” and “building works”, approval for building works has to be obtained under that ordinance. 94.As I have explained above, the PPEO regime addresses some aspects relating to public safety and ordre public (in the wide sense) which the POO does not address. Though there are overlaps, the two regimes are complimentary to each other. I do not think the possibility of imposing conditions under Section 11(2) of POO can serve the same function as the well-developed regime under the PPEO. On proper appreciation as to the role and function of the two regimes, I do not think the licensing requirement under the PPEO is a more than necessary for safeguarding public safety and ordre public. 95.I hold that the constitutional challenge fails. Disposal 96.The application for judicial review is dismissed. I shall hear parties on the costs of the application on a date to be fixed in consultation with counsel’s diaries.
Mr Gerard McCoy, SC and Mr Hectar Pun, instructed by Vidler & Co, assigned by the Director of Legal Aid, for the Applicant Mr Johnny Mok, SC and Mr Abraham Chan, instructed by the Department of Justice, for the Respondent [1] Powell v The Kempton Park Racecourse [1899] AC 143 [2] In Powell v The Kempton Park Racecourse [1899] AC 143 at p 194 [3] See Section 11(1) and (7) of PPEO [4] See Section 11(5) of PPEO Please refer to CACV244/2012 for the relevant appeal(s) to the Court of Appeal. |
Cases cited in this judgment