HKSAR v. Leung Kwok Wah and Others
Read the full judgment text of HCMA 54/2012 on BabelCite. This High Court CFI judgment was delivered on 19 October 2012.
1. This is an appeal by way of case stated pursuant to Section 105 of the Magistrates Ordinance. The questions raised in the Case signed by the magistrate on 11 January 2012 are as follows,
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HCMA 54/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 54 OF 2012 (ON APPEAL FROM ESCC 1112/2010) ____________
Before: Hon Lam J in Court Date of Hearing: 27 July 2012 Date of Judgment: 19 October 2012 _______________ J U D G M E N T _______________ The appeal by way of case stated 1.This is an appeal by way of case stated pursuant to Section 105 of the Magistrates Ordinance. The questions raised in the Case signed by the magistrate on 11 January 2012 are as follows,
It can be seen immediately Question 5 does not by itself raise any substantive question of law. Counsel did not suggest otherwise at the hearing. It does not require any separate consideration from the other questions raised. 2.As shall be shown below, the resolution of the remaining questions put to this court in the Case depends on the proper construction of Section 18 of the Public Order Ordinance Cap 245 [“POO”]. Most of the cases that have to be discussed in this judgment were in English. Though the arguments before the court were principally conducted in Chinese, counsel also used English when referring to the cases. In the circumstances, this judgment is written in English[1] and I will direct a translated copy of this judgment to be prepared for circulation to the Defendants at the same time of the delivery of judgment. 3.In an appeal of this nature, the court is solely concerned with questions of law. It is not the function of the court in this appeal to make finding of facts. Unlike other kinds of appeal from magistrates, appeal by way of case stated is not a rehearing. In general the court should not go beyond what has been set out in the Case which should be a self-contained document setting out all information necessary for the proper resolution of the issues raised by the Appellant, see Attorney General v Leung Chi-kin [1974] HKLR 269; Attorney General v Yau Ka-ping [1977] HKLR 76. Those responsible for drafting the Case and the magistrate signing the Case should pay proper regard to what had been said in these cases as to how a Case should be prepared. Guidance may also be derived from the experience on how the case stated procedure has been applied in other areas. I have made some observations in the context of the use of the case stated procedure in tax appeals, see Lee Yee Shing Jacky v Board of Review HCAL 40 of 2008, 22 Feb 2011. 4.Whenever a party considers that insufficient materials are set out in the Case, the proper course is to seek amendments of the Case instead of inviting the judge hearing the appeal to examine the evidence adduced at the trial to make up for the deficiencies. This can be done under Section 107 of the Magistrates Ordinance. The judge hearing the appeal can also exercise such power, see Section 109. But the primary responsibilities rest upon the parties and their legal advisers to ensure all the necessary findings and all relevant information for the satisfactory consideration of the points of law raised in the appeal are set out in the Case. If there is disagreement between the magistrate and a party as to whether the Case should be amended in a particular manner, the matter can be resolved by the procedure under Section 112. 5.Before the hearing of the present appeal, both the prosecution as well as the defence requested this court to have regard to materials other than those set out in the Case. The prosecution invited the court to view the video recordings (produced as exhibits before the magistrate) and the defence invited the court to read certain parts of the transcripts of the trial. After I made known my views on the proper role of the court in an appeal by way of case stated, these requests were withdrawn. The appeal therefore proceeded strictly on the basis of what had been set out in the Case. 6.The charge against the Defendants is in respect of an incident that happened on 25 December 2009 at No 160 Connaught Road West. On that day, the Defendants and other persons held a demonstration outside the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region [“the Liaison Office”]. Outside its building, the Liaison Office has a foreground which was enclosed by a wall with a gateway for access to Connaught Road West. The demonstration initially took place outside the wall and the gate was closed. At around 10:50 am, a vehicle left the Liaison Office and the gate was opened to let it get out. Some protesters (including the Defendants) took the opportunity to move into the foreground (thus coming into the Liaison Office premises) whilst some security guards and police officers tried to stop them and asked them to leave. The protesters insisted on moving closer to the building. It developed into some pushing and towing and resulted in a melee. Three persons were injured: a police officer, a security guard and the 1st Defendant. The Case Stated 7.The magistrate did not set out specific findings in the Case as to what each of the Defendants did at each stage of the incident. Though he recited the evidence adduced at the trial at paras 4 to 7, he did not indicate the extent to which those evidence was accepted. As such, this court cannot assume that such summary of evidence is part of his factual findings. This has ramifications on how this case should be disposed of in the event that this court takes a different view of the law from that of the magistrate. After reciting the evidence, he said at paras 8 to 11 of the Case,
8.At paras 12 to 17 of the Case, the magistrate set out the parties’ respective contentions on the nature of the premises of the Liaison Office. At para 14 he explained why he did not act upon the evidence of PW4, the head of the administrative and financial department of the Liaison Office,
9.His conclusion on disorderly conduct was set out at para 18,
10.The magistrate then considered the parties’ respective submissions on reasonable fear of breach of the peace in light of his finding at para 19, which is as follows,
11.His conclusion is set out at para 22,
12.According to the Case, the magistrate dismissed the charge on the bases of his conclusions at paras 18 and 22. 13.The focus in this appeal is whether the magistrate erred in law in terms of the questions put to this court. The offence of unlawful assembly under Section 18 14.Before I address the specific questions raised in the Case, it is useful to remind oneself of the ingredients of the offence under Section 18 of the POO. 15.Section 18 is in the following terms,
16.The ingredients of the offence are set out in sub-section (1). The magistrate analyzed it by reference to three ingredients at para 8 of the Case. Subject to what I shall say below, I am happy to go along with analyzing the offence under those three ingredients,
17.On the first ingredient, I am of the view that the way in which it was stated at para 8(a) of the Case does not sufficiently reflect the requirement of joint responsibility for the conducts which are put forward as the second ingredient of the charge. The sub-subsection refers to “conduct themselves”, not simply “assembled together”. In The Queen v To Kwan-hang, [1995] 1 HKCLR 251 at p 254, Macdougall V-P emphasized this additional aspect of the offence,
18.In other words, the unlawful assembly is made up of those conducting themselves in the prescribed manner. If there was only one person out of those assembled together who conducted himself in the prescribed manner, he could not be guilty of this offence. 19.Further, if more than three persons amongst those assembled together conducted themselves in the prescribed manner, it is still necessary to consider whether in so conducting themselves they could be described as acting as an assembly. The sub-section provides for this consideration when it stipulates that these people “are an unlawful assembly”. This view is reinforced by the third ingredient (the so-called breach of the peace ingredient, as elaborated below) of the offence. In one possible limb of this ingredient, the question that has to be asked is whether the conducts of the defendants are “likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace”. Hence, the conducts of the defendants had to be assessed together to see whether this criterion can be satisfied. There must be sufficient nexus between the conducts of these defendants to justify having them considered together. And the fear required is that such persons so assembled, viz acting together, will commit a breach of the peace. 20.I will call this the corporate nature of the offence under Section 18. This corporate nature is one of the distinguishing features between this offence and the offence under Section 17B of the POO. 21.Thus, if three persons in a lawful assembly committed acts of the prescribed nature at different parts of the place of assembly[3] for different purposes, sparking off different incidents, involving and affecting entirely different mix of persons, there would not be sufficient nexus to turn these independent acts into an unlawful assembly of those three persons. If the event takes place at a public place, they may each be guilty of an offence under Section 17B. But these would be separate offences, and the fact that they have been in the same lawful assembly prior to their respective commission of the Section 17B offences would not, without the necessary nexus, turn those offences into one single offence of unlawful assembly under Section 18. 22.This was highlighted by James LJ in R v John McKinsie Jones (1974) 59 Cr App R 120 at p 127,
This was said in respect of the common law offence. In the context of an offence under Section 18, there is a need to adjust the mens rea aspect to take account of the objective limb of the third ingredient discussed below. However, I consider that the requirement of having a common purpose in acting in the statutorily prescribed manner remains good law in dealing with a charge under Section 18. 23.I need to come back to this aspect of the offence when I address Question 2 in the Case. 24.On the second ingredient, I will start with the observation that the statute refers to the character of the conduct, not the legality of the purpose behind the conduct. Indeed, the same point has been made with regard to the character of the assembly as opposed to the purpose of the assembly in Section 18(2). This point can be best illustrated by The Queen v To Kwan-hang, supra. That case concerned the charging of police cordon by a group of protesters. The defendant protesters regarded the cordon to be unlawful (which was later held by the Court of Appeal to be lawful) and as such infringed their right of peaceful assembly. Macdougall VP held that the police had a duty (and impliedly the power) to preserve public peace and prevent injury to life and property. Therefore, in the exercise of the power of crowd control with regard to a demonstration, “a balance had to be achieved between allowing a protest to be made on the one hand and ensuring safety to persons and property on the other.” His Lordship also alluded to the following as a relevant consideration at p 257,
25.On the argument that the protesters were exercising their right of assembly, Macdougall VP rejected it at p 257,
Litton JA (as he then was) agreed with the judgment of Macdougall VP. Bokhary JA (as he then was) said, at p 262,
26.Thus, even if the court were to come to the conclusion that the cordon was not lawful, it does not mean that the conducts of the protesters in charging it was not disorderly or provocative. Public order and public peace can still be disturbed, people can still be injured and property can still be damaged even though such protesters perceived (perhaps justifiably) that they were acting in the furtherance of a just cause. The law does not give a licence to such protesters to act with impunity without regard to the law and order of the community at large just because the police may have erred in the judgment as to how the balance should be struck in a difficult situation occasioned by a demonstration. 27.In To Kwan-hang, Bokhary JA said at p 261,
28.In Campbell v Adair [1945] SC(J) 29, “disorderly” was said to be “a word of very wide comprehension … which indicates less aggressive conduct than would be required to constitute a breach of the peace … The question is not whether the conduct of the appellant provoked disorder by leading to disorderly action on the part of others who were present and witnessed his conduct. The question is whether he himself acted in a manner which can be described as disorderly.” 29.In HKSAR v Wong Ying Yu [1997] 3 HKC 452, the following conducts were held to be disorderly conduct: a group of protesters moved away from a pre-designated demonstration area and proceeded to the vehicle entrance of the Convention and Exhibition Centre to continue with their protest,
The finding of the magistrate as to disorderly conduct was as follows and it was upheld on appeal, (see p 455E)
30.In the recent case of香港特别行政區訴招顯聰HCMA 163 of 2012, 14 June 2012, a case in which demonstrators threw a plastic bottle of powder and a bag of powder into the foreground of the Liaison Office in a demonstration on 28 December 2010, Derek Pang J affirmed the magistrate that such conducts were disorderly. 31.In the yet more recent case of 香港特别行政區訴周諾恆 HCMA 193 of 2012, 20 July 2012, in the context of another protest case, Barnes J adopted the judgment of Beeson J in HKSAR v Cheng Siu Wing HCMA 619 of 2003, 5 Sept 2003 as regards the meaning of disorderly conduct. Paras 42 and 43 of the judgment of Beeson J are relevant,
32.These cases show that in considering whether a person conducts himself in a disorderly manner for the purpose of the POO (whether in the context of Section 17B or Section 18), the fact that he is exercising his freedom of assembly should not call for special or exceptional consideration. 33.At the same time, it must be emphasized, as mentioned in the course of hearing, the mere fact that a person conducted himself in a disorderly manner is not an offence under the POO, whether under Sections 17B or 18. The other ingredients of the respective offence have to be established before the offence is proved. This was illustrated by the acquittal in 招顯聰. 34.I make these observations by way of general comments instead of having special regards to the facts of this case. I shall discuss the implications on the present case specifically when I address Question (1) in the Case. 35.I turn to the third ingredient. It is more complicated because different permutations are provided for in the statute. First, it could be a case where the conducts of a defendant were intended by him or her to generate the stipulated fear (the subjective limb). Alternatively, it could be a case where the conducts cause any person reasonably to have such fear (the objective limb). The charge here, as set out in para 1 of the Case, is confined to the objective limb. 36.Second, the stipulated fear also has different limbs, either
Both limbs are relied upon in the charge in the present case. 37.In the context of the objective limb of the third ingredient, the statute refers to any person reasonably having such fear. It must be a person present at the scene. His fear has to be reasonable. It should be noted that the fear is not about fear as to the person’s own safety or security. Rather, it is a fear that one way or another a breach of the peace will result. Thus, it is a fear for the deterioration of the event into a breach of the peace, a state of affairs which the common law provides that the power of arrest will become exercisable. In other words, the word “fear” in this context means an apprehension. 38.On the first limb of fear, Section 18 refers to a breach of the peace committed by the persons who conducted themselves in the manner prescribed under the second ingredient. They are the persons “so assembled”. As observed in Campbell v Adair, with reference to conduct which would constitute the second ingredient, the conducts need not amount to a breach of the peace. But it may be that in the circumstances of the case an objective bystander would reasonably fear that things might go for the worse and these persons would continue to behave so badly or rowdy to become a breach of the peace. 39.On the second limb of fear, Section 18 refers to a breach of the peace committed by another group of persons. Those persons are not the persons who originally conducted themselves in the manner prescribed under the second ingredient. It refers to other persons present at the scene and provoked by the conducts of “the persons so assembled”. The fear is the reasonable fear of a third person that those provoked would respond by conduct which amounts to a breach of the peace. On this limb, three different categories of persons are involved: the original group who are “the persons so assembled” (there must be three or more of them); a second group (actually it could only be one person) who is provoked by the first group and may respond by actions which amount to a breach of the peace; a third person or group of persons who harboured the reasonable fear. 40.It must be emphasized that Section 18 is very much a preventive measure. There is no need for a breach of the peace to have occurred. It is sufficient that a person present at the scene reasonably fear that it would occur if no action is taken in the meantime to prevent it. The law is there to put a stop to a deteriorating situation. 41.As regards breach of the peace, the test in R v Howell [1982] QB 416 at p 427 is often cited and applied in Hong Kong.
The freedom of assembly and freedom of demonstration 42.Article 27 of the Basic Law provides that Hong Kong residents shall have freedom of assembly, of procession and of demonstration. This Article has to be read together with Article 39 of the Basic Law which provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law and the restrictions shall not contravene, amongst other things, the ICCPR as applied to Hong Kong. 43.Likewise, such freedoms are protected by the Hong Kong Bill of Rights [“HKBoR”]. Article 17 of the HKBoR implemented Art 21 of the ICCPR in Hong Kong and protects the right of peaceful assembly.
44.Article 16(2) and (3) of the HKBoR implemented Art 19 of the ICCPR and protects the freedom of expression, under which the right to demonstrate is subsumed.
45.As these are freedoms protected by both HKBoR and the Basic Law, the permissible restrictions are those within the scope of the HKBoR, see Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at para 26. 46.The constitutionality of Section 18 in the context of the HKBoR was upheld by the Court of Appeal in The Queen v To Kwan-hang, supra. Thus, according to the principle set out in Gurung Kesh Bahadur, Section 18 is also a permissible restriction in respect of the rights under Article 27 of the Basic Law. 47.There is no challenge as to the constitutionality of Section 18 in this case, whether before the magistrate or this court. 48.In HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, A Cheung J (as he then was) held that the right of peaceful assembly and the right to freedom of expression stopped at the boundary of private residential property belonging to others in the absence of any permission to enter. His Lordship came to that conclusion after a careful and detail analysis of the other provisions in the Basic Law, the HKBoR and the duty and power of the police and the relevant overseas jurisprudence on the right to demonstrate. His Lordship left open the question as to how section 18 would be applied in the context of an assembly or demonstration which took place at premises of a public nature as it was not necessary to address the point on the facts of that case. But what His Lordship said at para 52 may have a wider application,
49.A Cheung J briefly referred to the exercise of the right of assembly in public places or places of a public character at paras 38 to 41. He distinguished Police v Beggs [1999] 3 NZLR 615, a case where a protest took place in Parliament grounds and the New Zealand High Court applied a test of reasonableness to determine whether the eviction process was consistent with the right of peaceful assembly protected by the New Zealand Bill of Rights. As can be seen from the discussion in the judgment in Au Kwok Kuen of overseas cases, there is a spectrum in terms of the character of a place: private residential property, private commercial building, large shopping mall or shopping centre where the public had been invited to congregate freely and as such can be said to have acquired a public character, buildings used by the Government which are not open to the public, buildings used by the Government which are open to the public only upon application (as in the case of the Parliament grounds in Beggs) and Government buildings or premises which are generally open to the public without any application. Different considerations apply with regard to different places in this spectrum. It is not simply a dichotomy between public places and private properties. 50.Whilst there is a positive duty on the part of the Government (including the police) to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully (see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229), there is also a duty on the part of the Government to take reasonable and appropriate measures to protect the personal safety and property of other citizens who might be affected, see Au Kwok Kuen para 74 and the recent judgment of this court in T v Commissioner of Police HCAL 102 of 2011, 16 July 2012. Public order and public safety must be weighed in the balance. 51.This is the position even if the right of assembly and the right to demonstrate are exercised at public places at the very end of the spectrum, see T v Commissioner of Police, supra, a case of demonstration which took place on a street. In this connection, Strasbourg jurisprudence is to the same effect, see G v Germany (1989) 60 DR 256 (blockade of public road leading to a barrack); G v Norway (1984) 6 EHRR SE 357 (Parliament ground). Recently, the English Court of Appeal upheld decisions to evict protesters occupying public places for demonstrations, see City of London Corp v Samede [2012] 2 All ER 1039 (camping by the Occupy Movement at St Paul’s Cathedral churchyard); Mayor of London v Hall [2011] 1 WLR 504 (protest camp on Parliament Square Garden). 52.G v Germany, supra is a case where a demonstrator participated in a blockade of a road leading to U.S. barracks in Stuttgart by way of protest against nuclear arms. He was convicted of an offence of unlawful coercion under German law. He complained that the conviction violated his right to freedom of peaceful assembly as guaranteed by Article 11 of the European Convention which is in substance similar to Article 17 of the HKBoR. The Commission rejected his complaint as manifestly ill-founded. It said at p 263,
The Commission found that the applicant had not been actively violent in the course of the sit-in concerned and as such the Article was engaged. The restriction imposed by the German law needed to be justified and the Commission found it justified.
53.In Mayor of London v Hall, supra, Lord Neuberger MR put the point in a different way from that of A Cheung J. At para 37, His Lordship said,
54.But it does not mean that the protesters have an absolute right in choosing the place and the manner in which they demonstrate for Lord Neuberger continued at para 38,
55.In the subsequent case of City of London Corp v Samede, supra, another case of occupation of property which has a public character, Lord Neuberger adopted a test not dissimilar to the “test of reasonableness” in Police v Beggs, supra. At para 39, the Master of the Rolls said,
56.Coming back to local authorities, the Court of Final Appeal in Yeung May Wan v HKSAR (2005) 8 HKCFAR 137 applied a test of reasonableness in assessing whether a demonstration taking place at a highway or street has crossed the mark to constitute an offence of obstruction of public place. At para 44, the constitutional protection to the right to demonstrate was emphasized,
57.These are cases about peaceful assembly and peaceful expression of opinion. Even in such context, these cases show that there is no absolute right to demonstrate even at public places or premises of a public nature. Section 18 is to address situations which, unless preventive actions are taken, are likely to develop into a breach of the peace. Breach of the peace, as we have seen, involved harm to other persons or damages to properties of others or a fear of such consequences. The constitutional rights to protection of persons and properties are therefore engaged. These must be weighed in the balance in drawing the legitimate lines for the exercise of the rights of peaceful assembly and demonstration. 58.Adopting a similar approach as in Yeung May Wan v HKSAR, in the assessment of whether the conducts of the defendants would cause a reasonable person to fear that they would commit a breach of the peace, one must not apply that objective test in a manner that would unduly impair the ability to exercise the constitutional rights of peaceful assembly and demonstration. However, when that line has been crossed, Section 18 has to be applied to stop a deterioration of an often highly emotionally charged assembly into a serious disruption of law and order. Question 1: whether the Liaison Office is a public or private premises 59.Three sub-questions were raised in the Case under this head and the magistrate certified the questions as being raised in the context of both the second and the third ingredients of the offence. I should explain how the questions arose in relation to the two ingredients. 60.For the second ingredient, the magistrate explained at para 11 of the Case why the question whether the Liaison Office is a public or private building was important in this case. He was of the view that if the Liaison Office was a public place, Chinese citizens (including Hong Kong citizens) should be entitled to enter without any prior permission and the police and the security guards should not have prevented them from doing so. He considered that the exercise of the Basic Law and human rights of demonstrating at a public place should not be subject to unreasonable restrictions. 61.After setting out the submissions of the parties, the magistrate recorded his conclusions at para 18 of the Case. Reading the paragraph as a whole, the magistrate’s conclusion was that the Liaison Office was not a private premises and the right of the Defendants to demonstrate there should be upheld. He was of the view that the melee was caused by the actions of the police and security guards to prevent the protesters from continuing to demonstrate there instead of the conducts of the Defendants. He concluded the paragraph by holding that the prosecution failed to establish that the Defendants had conducted themselves in a disorderly or provocative manner. 62.For the third ingredient, the magistrate was proceeding in the alternative to his ruling on the second ingredient (see para 19 of the Case). Thus, he considered the implications flowing from the position that the Liaison Office was a private premises at para 22 of the Case in the application of the principle set out in HKSAR v Yeung Kin-ping [1997] HKLRD 1008. He considered that in that scenario (viz the Liaison Office was a private premises), the third ingredient cannot be satisfied for want of presence of innocent third parties. 63.It would be more convenient to discuss the implications of these questions in respect of the third ingredient when I deal with Questions 3 and 4. At this juncture, I shall focus on the second ingredient. 64.On the first sub-question, having regard to what I said above in relation to the second ingredient in the context of the exercise of the right to demonstrate and the permissible scope of restriction on the constitutional rights of peaceful assembly and demonstration, I am of the view that the magistrate erred in law in holding that the Defendants did not conduct themselves disorderly simply because the Liaison Office was not a private premises. 65.At paras 11 and 18, in considering the second ingredient, the magistrate effectively confined himself to the question whether the Liaison Office was a private premises. His reasoning was that once he reached the conclusion that the Liaison Office was a premises of a public character, the Defendants had the right to enter the premises and to demonstrate at the foreground. And the police and security guards should not try to prevent them from doing so. As such, whatever happened afterwards was not attributable to the faults of the Defendants. 66.This reasoning is, with respect, erroneous in law. First, as discussed above, whether a person is entitled to demonstrate at a place without the permission of its owner does not simply depend on a dichotomy between private premises and public premises. There is a wide spectrum and even in premises which can be said to have a public character within the spectrum there is no absolute right to enter for the purpose of demonstration. Even for premises with a public character, one must consider whether it is a premises generally open to the public and if there are restrictions, what those restrictions are, and what are the objectives for those restrictions. The right of a property owner, including governmental agencies, to set conditions for the use of his property is an exercise of his proprietary right. As underscored in Au Kwok Kuen, this right is constitutionally protected although in the case of a government premises generally open to the public, the restriction may have to be justified as necessary and proportionate in order to be consistent with the government’s positive duty to enable lawful assemblies to take place peacefully. 67.In the case of a government premises not generally open to the public, there is no right of access to demonstrate at such premises. The positive duty on the part of the government is a duty to enable lawful assemblies to take place. I can find nothing in the judgment of the Court of Final Appeal in Leung Kwok Hung v HKSAR, supra which remotely suggests that such duty can be elided into a duty to open all government premises for demonstration. Protesters who entered into premises not generally open to the public are not exercising their right of assembly lawfully. 68.Thus, the more important question is whether the foreground of the Liaison Office, even assuming it were a premises with a public character, was generally open to the public. The magistrate failed to address that question independently. He assumed that the answer to that question had to be affirmative once he found that the Liaison Office was a premises with a public character. 69.Further, even assuming for the sake of argument that the Defendants were entitled to enter into the foreground to hold their demonstration there, it does not mean that in so doing they had not conducted themselves in a disorderly or provocative manner. The magistrate erred in law in assuming otherwise. Irrespective of the lawfulness as to the exercise of the right of demonstration at the foreground, the magistrate should have considered the evidence on the conducts of the Defendant after they had entered the premises and made findings of fact as to how they had conducted themselves. Upon making such findings, he should then assess the quality of these conducts to see whether the statutory criteria under Section 18 have been satisfied. The only difference stemming from the entitlement to demonstrate in the foreground is the defence of self-help. 70.However, as discussed above, even if the Defendants were entitled to resort to self-help to reinforce their right to demonstrate at the foreground, there is still the question whether they had used excessive force in the incident, see To Kwan-hang. 71.As recited in the Case, there was evidence before the magistrate that the police and the security guards had requested the Defendants to leave and they had refused to heed. They did not stop right after they had entered into the foreground. Instead, they had pushed towards the glass door entrance of the building. Though the magistrate found that the Defendants did not have the intention of entering into the building, he still needed to consider whether he accepted such prosecution evidence and, if accepted, whether such conducts amounted to the use of more than reasonable force for the exercise of the right of demonstration at the foreground. 72.According to the Case, there was also evidence that after some protesters had come into the foreground, some police officers and security guards formed a defence line to prevent the protesters from moving further towards the building. The magistrate did not say whether such evidence is accepted. However, if it is accepted, he should have asked: if the conducts of the Defendants were simply in furtherance of the exercise of the right of demonstration at the foreground, why was it necessary for them to push against such defence line? In so pushing, did the Defendants not use more than reasonable force to facilitate their exercise of right of demonstration? In respect of the quality of the conducts, was there any material difference between such conducts and the charging of police cordon in Au Kwok Kuen and To Kwan-hang? 73.Therefore, there are material matters which the magistrate failed to consider by reason of his error in law in focusing on the public character of the Liaison Office. 74.The answer to Question (1)(i) is therefore “yes”. 75.Had the magistrate applied his mind properly to consider whether the Defendants were entitled to enter into the foreground, he should have appreciated that in addition to the evidence of PW4 (which he refused to act upon on its own), the evidence is corroborated by the circumstantial evidence. The foreground was enclosed by a wall and access to it was through a gateway. The gate was closed at all times until it was opened to let the vehicle leave the premises. This, in my view, is a very telling piece of evidence showing that members of the public were not freely admitted into the premises. In this respect, the foreground was clearly different from areas in the court building or the immigration building where members of the public were allowed to enter in general. The analogy drawn by the magistrate at the first sentence of Para 18 is plainly wrong. 76.Likewise, the magistrate’s acceptance of the submission of the defence that Chinese nationals, including Hong Kong citizens, had the right to enter the Liaison Office as it is an official agency of the Chinese Government is without basis. Mr Lee SC, appearing on behalf of the 1st to 5th Defendants, accepted that there was no evidence supporting this proposition. However, counsel submitted that there is insufficient evidence supporting the prosecution case that the foreground was not open generally to members of the public. The only evidence, counsel said, was that emanated from PW4 which the magistrate was entitled to reject. 77.I do not agree with this submission. As explained, there was strong circumstantial evidence that the foreground was not open to the public generally. The magistrate should have considered the evidence of PW4 in that light. He had failed to do so. The case of the defence, based on the function of the Liaison Office as shown on its website and in Articles 27 and 41 of the Constitution of People’s Republic of China, does not even begin to address the question whether the foreground of the Liaison Office was open to public generally. With respect, the reliance by the Defendants on these materials was completely misconceived. In any event, it is not clear from the Case whether the magistrate had accepted these submissions. 78.The answer to Question (1)(ii) is therefore “yes”. 79.Since the magistrate had not clearly set out in the Case as to the evidence he accepted or rejected, and he has misdirected himself on law as to the questions that he should consider, I am not sure if I have got a summary of all relevant evidence before me. In such circumstances, since I would not be able to draw conclusions on all the relevant facts in any event, I do not deem it helpful to deal with Question (1)(iii). Question 2: assembled together 80.This question was raised at the request of the Defendants. The relevant finding by the magistrate is at para 9 of the Case. He was of the view that the Defendants did not have any prior agreement and was unorganized as to what they would do after entering into the foreground. He however found that they were acting with a common objective and therefore they were assembled together at the time of the incident. 81.In his written submissions, Mr Lee relied on what was set out at para 21 of the Case to contend that the magistrate had erred in law. That paragraph is as follows,
82.The magistrate accepted submission (a) but rejected (b). He found that the Defendants had a common objective after they entered into the foreground. Unfortunately, he did not spell out what their common objective was. Obviously, it could not be entering into the building because he had expressly found otherwise. This court cannot speculate. 83.As regards submission (c), I have already explained above the corporate nature of the offence under Section 18. The necessary nexus can be satisfied by a common purpose. 84.Whilst there is evidence capable of establishing the necessary nexus, I am handicapped by the absence of clear findings of fact and the identification of common objective as found by the magistrate. Without such information, I am simply unable to answer Question 2. 85.One option is to direct the magistrate to amend the Case by stating what he found to be the common objective and set out the relevant findings of fact pertaining to such conclusion. Whether this course should be taken may depend on how the appeal is to be disposed of. For reasons set out below, I intend to hear submissions from the parties before I reach a decision. Questions 3 and 4: innocent third parties and breach of the peace 86.I can consider these two questions together. Not only did the magistrate exclude from his consideration of the third ingredient the security guards, he also excluded the other protesters who had also entered the foreground and news reporters. Though he did not expressly refer to them, he obviously also did not consider the perception of the police. 87.It appears from para 22 of the Case that the magistrate examined the attribute of innocent third parties as the necessary quality of the person who held the reasonable fear under the objective limb of the third ingredient. His reasoning was that since there was no such person present at the material time (because by then the gate had been closed), this limb cannot be established. 88.The magistrate derived this requirement of innocent third parties from HKSAR v Yeung Kin-ping, supra. The relevant part of the judgment of Stock J (as he then was) is at p 1020,
Further down the same page,
89.It should be noted that the protagonists present in that case was the family members of the debtor who, as suggested by some evidence, were engaged in the unlawful conduct in terms of preventing the creditor from leaving and one of them started the fight, see p 1019 H to J and p 1014 A to C. It was in that context that Stock J said these people were “themselves wrongdoers in connection with the very same episode”. 90.Stock J cited the judgment of Lord Hailsham in Kamara [1974] AC 104 at p 116,
91.The facts of Kamara can shed light on the meaning of innocent third parties. In that case, some students staged a protest action by entering the High Commission of Sierra Leone. They threatened the caretaker with an imitation gun and locked him in a reception room. 10 other members of the staff were brought and detained. Whilst those members were frightened, there was no evidence that there was any person outside the building having put in fear. One of the charges was unlawful assembly. The students were convicted and they appealed to the House of Lords. Their argument was that there was no terror and alarm in the neighbourhood which was an essential ingredient of this offence. The question certified was this,
92.At p 115 G, Lord Hailsham said this with regard to the argument of the students,
After referring to the definition in Hawkins’ Pleas of the Crown, he continued,
93.The appeal was dismissed. It is therefore crystal clear that victims to the attack (the staff in the High Commission building who were threatened by the students and the warders who were beaten up by the rioting prisoners) can be the innocent “third parties” for this purpose. 94.Properly understood, the phrase “innocent third parties” does not exclude those, like the security guards, who were confronted by the conducts of the Defendants. They could not be regarded as participants in the illegal activities in question. On the scenario that the Defendants had no right to enter the foreground to demonstrate (which was the scenario that the magistrate considered this question, see para 19 of the Case), the security guards merely performed their duties in trying to prevent the Defendants from moving further into the premises. They were in the same position as the staff members in Kamara. 95.I also fail to see why the reporters should be excluded. 96.Mr Lee relied on several authorities and submitted that since these people (as well as the police) were trained personnel they would unlikely be provoked into committing an breach of the peace: R v Li Wai Kuen [1973-76] HKC 346; HKSAR v David Morter [2003] 2 HKLRD 510; HKSAR v Cheng Siu Wing, supra; Percy v DPP [1995] 1 WLR 1382; 香港特别行政區訴招顯聰, supra. 97.Counsel’s submission is sound only as regards the provocation limb of the third ingredient. However, as analysed above, there is another limb, viz the fear that the Defendants themselves would commit a breach of the peace. This was also a limb relied upon by the prosecution. I do not read the cases cited by Mr Lee as going as far as saying that when the only persons present are trained personnel they could not reasonably hold the fear that the Defendants would commit a breach of the peace. 98.I would therefore answer Question 3 as follows: “No, the magistrate was wrong to exclude from his consideration the security guards”. 99.As regards Question 4, the matters raised in the Question are clearly relevant considerations as to whether the security guards had a reasonable fear that the Defendants would commit a breach of the peace. The answer is therefore: “yes, the magistrate was wrong in failing to have regard to those matters”. Disposal of the case 100.Having answered the questions that I can answer, I wish to hear further submissions from the parties as to how the matter should proceed. I do this for this reason. The event took place in December 2009. The trial before the magistrate took place between July and December 2010. The magistrate acquitted the Defendants in December 2010. 101.For some reasons unknown to me, the Case was only signed on 11 January 2012. Further, as explained above, there are insufficient findings of fact in the Case itself as regards which Defendants did what at the time of the incident. I wonder how realistic it is to remit the Case back to the magistrate at this stage given the lapse of time and consequently lapse of memories, not only on the part of the magistrate but also on the part of the witnesses. In this connection, I am very much alive to what was said in Police v Beggs, supra at p 633 in respect of the outcome of that case. 102.Given what I said in relation to Question (2), even if the case were remitted, there is no guarantee that there would be convictions. 103.In some cases, the purpose of prosecution of appealing by way of case stated is to clarify the law. I hope that by and large this objective is served by this judgment. I would therefore like to hear from the parties how the case should proceed in the light of this judgment. I shall direct that the case be listed in consultation with counsel’s diaries with an estimate length of 2 hours.
Mr Alain Sham, DDPP and Mr Ira Lui, SPP of the Department of Justice, for the Appellant Mr Martin Lee, SC, Mr Douglas Kwok and Ms Charleen Tong, instructed by Ho Tse, Wai & Partners, for the 1st to 5th Respondents The 6th Respondent appeared in person [1] Apart from quoting from the Case which was prepared in Chinese. [2] As explained in footnote (1) of the Case, these are the only characters of the conducts relied upon in the charge in the present case. [3] This is quite possible in cases where the assembly takes place at, say, Victoria Park, with thousands of participants. | ||||||||||||||||||||||||||||||||
Cases cited in this judgment
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