HKSAR v. Chow Nok Hang and Another

HCMA 193/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.193 OF 2012

(ON APPEAL FROM ESCC 3256 OF 2011)

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Before : Hon Barnes J in Court

Date of Hearing : 17 August 2012

Date of Judgment: 17 August 2012

Date of Handing down Reasons for Judgment: 21 August 2012

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REASONS FOR JUDGMENT

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Background

1.The two applicants were each found guilty, after trial, of one count of “Behaving in a disorderly manner in a public place”, contrary to section 17B(2) of the Public Order Ordinance, Cap 245.  They were each sentenced to 14 days imprisonment.  They appealed against their respective conviction and sentence before me.  I allowed their appeal against conviction and found them each guilty of the alternative charge of “Acting in a disorderly manner at a public gathering”, contrary to section 17B(1) of the said Public Order Ordinance.  I also allowed their appeal against sentence, substituting the 14‑day imprisonment with a fine.  The 1^st applicant was fined $2,000 whereas 2^nd applicant was fined $3,000.  I have given full reasons when I delivered my judgment on 20 July 2012.

The Applicants’ application

2.By a Notice of Motion dated 1 August 2012, the applicants applied under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate to certify three points of law involved in my decision are of great and general importance.

3.The three points of law are said to be:

“(1) Whether the element of ‘for the purpose of preventing the transaction of the business’ under section 17B(1) formed part of the mens rea of the offence which the prosecution has to prove, or whether the offence is proved when the disorderly act or acts have the effect of preventing the transaction of the business.

(2) If the offence is proved when the disorderly act or acts have the effect of preventing the transaction of the business, whether the prosecution has to prove the accused has prevented or broken up the transaction of the business completely.

(3)     If the answer to (2) above is in the negative, whether the slightest obstruction, hindrance or delay to the transaction of the business by the disorderly act or acts would suffice to establish the offence.”

The respondent’s application

4.By a Notice of Motion dated 10 August 2012, the respondent also applied under section 32(2) of Cap 484 for a certificate to certify that four points of law of great and general importance are involved in my decision.

5.The four points of laws are said to be:

“(1) In deciding the elements of the offence under section 17B(2) of the Public Order Ordinance, Cap 245, is it correct to apply the Chinese version which states that the requirement of ‘intent to provoke’ refers to ‘others’ whereas the English version does not?

(2) What are the requirements for an offence under section 17B(2) of the Public Order Ordinance, Cap 245 in order to establish that a person ‘behaves in a noisy and disorderly manner’ … ‘with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused’?

(3) Does each of these requirements require that the breach of the peace intended to be provoked or likely to be caused should be the act of another person(s), other than the person who behaves in a noisy or disorderly manner?

(4) Have the requirements of the offence been correctly applied in the circumstances of this case?”

My judgment

6.After reading the written submissions and hearing the oral submissions from counsel for the applicants and the respondent, I agreed to certify that the first two points of law raised by the applicants and the first three points of law raised by the respondent are points of law of great and general importance.  I have indicated at the time I will give my reasons later.  Here are my reasons.

Reasons for my judgment

7.Section 32(2) of Cap 484 provides:

“ Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”

8.It is a fact that more and more protests are being staged in recent times.  There have also been conflicts or altercations between protestors and the police, resulting in the arrests and prosecution of some protestors.  It is my view that the people of Hong Kong (including those who may wish to express their views by staging or participating in public protests) need to know what would amount to an offence so that they can make an informed decision as to how far their protesting act or acts should go, and whether their actions render them being in danger of breaching the law.  Likewise, law enforcement agencies (including the police and privately engaged security services) also need to know what they can lawfully do to maintain law and order and what conduct on the part of the protestors would amount to an offence.

9.Further, previous incidents indicate that protests were staged in public when public gatherings were taking place.  A protestor may find himself or herself, as in the case of the two applicants here, charged with an offence of “Behaving in a disorderly manner in a public place” and an alternative offence of “Acting in a disorderly manner at a public gathering”.  There is a need to know the different elements of these two offences — particularly when they are under the same section (section 17B) of the Ordinance.

10.In relation to the first two points raised by the applicants, while I have ruled in this particular case that (a) the two applicants, when they behaved in a disorderly manner, had the dual purposes of demonstrating and preventing the transaction of a public gathering; and (b) that the word “preventing” does not mean “a complete stop”, I am satisfied that I should certify these two points as points of law of great and general importance.

11.I declined, however, to certify the last point raised by the applicants since the degree of interruption — if preventing does not mean “a complete stop” — would only be relevant to the sentence or punishment for the offence.  

12.Regarding the first three points raised by the respondent, I bear in mind that while there have been authorities — both from the United Kingdom and from Hong Kong — on the offence of “Behaving in a disorderly manner in a public place” (section 17B(2)), there is no definitive and authoritative ruling from the highest court of Hong Kong to say what exactly the elements of the offence are and what the prosecution has to prove.  I am satisfied that these three points are points of law of great and general importance.  

13.I declined to certify the last point raised by the respondent.  Whilst the particular facts of this case can be used as illustrations of the elements to be proved, the facts themselves do not raise important points of law.

Mr Hui Siu Ting, Martin, SADPP of Department of Justice, for the respondent

Mr Wong Hay Yiu, instructed by Ho Tse Wai, Philip Li & Partners, assigned by Director of Legal Aid, for the 1^st and 2^nd applicants