HKSAR v. Siu Mun Yee

[English Translation – 英譯本]

HCMA 607/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 607 OF 2012

(ON APPEAL FROM ESCC NO. 1 OF 2012)

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J U D G M E N T

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Background

1.The Appellant was convicted after trial before Magistrate Li Kwok Wai in the Eastern Magistrates’ Court on two counts of “resisting police officer”, contrary to section 63 of the Police Force Ordinance, Cap. 232 of the Laws of Hong Kong.  She now appeals the convictions. 

Prosecution case

2.On 16 August 2011, Mr. Li Keqiang, the then Vice-Premier of the People’s Republic of China, visited Hong Kong and stayed at the Grand Hyatt Hotel in Wanchai. The police enhanced the security measures in the area from the Hong Kong Exhibition Centre to the Central Plaza, setting up a “security buffer zone” and arranging for police officers to stand guard and maintain order.  The police also set up protest areas outside the Central Plaza for the public (Designated Public Activity Areas).

3.At about 8:45 p.m. of the day in question, PW1, a female police officer, saw the Appellant on the footbridge of the Central Plaza, who was then wearing clothing with slogans written thereon and holding articles for protest.  PW1 immediately intercepted the Appellant and, upon knowing that she intended to go to the Grand Hyatt Hotel to look for the Vice-Premier, PW1 took her to the designated protest area.  On arrival at the boundary of the protest area, the Appellant indicated reluctance to enter the area and explained why she was seeking to meet the Vice-Premier.  According to PW1, the Appellant was emotional at that time.  Soon afterwards, the Appellant rushed towards the Grand Hyatt Hotel.  As the Harbour Road area had been designated as a “security buffer zone”, PW1 immediately formed a “human chain” with PW2, another female police officer, to block the Appellant’s way, but she disregarded the barrier.

4.PW2 warned the Appellant not to charge the police cordon line anymore or she would be arrested for the offence of “obstructing a police officer in the execution of her duty”, but the Appellant ignored the warning.  Chaos ensued, during which time PW1, feeling that her left forearm was scratched by the Appellant once, cried out in great pain.  PW2 then gave a second warning to the Appellant.  As the warning failed to deter the Appellant, PW2 arrested the Appellant for the offence of “obstructing a police officer in the execution of her duty”.

5.PW1 said that she had previously taken part in the security arrangements for a visit of Mr. Wang Guangya, Director of the Hong Kong and Macau Affairs Office, and she agreed with the defence that the protest area at that time was geographically closer to the Grand Hyatt Hotel.

Defence case

6.The Appellant elected not to give evidence, nor did she call any witness.

Grounds of appeal

7.Three perfected grounds of appeal have been put forward:

(1) The Magistrate failed to consider, on the basis of “rule of law”, whether the “security buffer zone” was set up arbitrarily, and also failed to state its legal and evidential basis.  Therefore, the Magistrate failed to consider properly whether the Appellant’s “personal freedom” had been violated, and it followed that the Magistrate erred in finding the Appellant guilty of “resisting a police officer”.

(2) When considering the Appellant’s “freedom of expression”, the Magistrate erroneously applied the factors of “balance” and “proportionality”, as a result of which he erroneously overlooked the Appellant’s freedom of expression.  The Magistrate even agreed that “had there been proper arrangements on that day, i.e. had the Appellant been dealt with separately from the usual protestors or had somebody been sent to receive the petition letter, the Appellant would not have had to charge the cordon line”.  This would inevitably raise the question of whether the police could in fact have made more “balanced” and “proportionate” arrangements on the day of the offence so that the Appellant’s freedom of expression would not be violated.

(3) The Magistrate erred in finding that “[a]t that time there was indeed a breach of the peace”.  There was no evidence to engage the concept of “breach of the peace”, and the Magistrate’s analysis went against the legal principle set out in the case of Chiu Hin Chung.

Discussion

8.The first two grounds of appeal can be dealt with together.  By putting forward these two grounds, Counsel for the Appellant is complaining about what the Magistrate said in paragraphs 21 to 23 of the Statement of Findings in finding the Appellant guilty:

“21. … In To Kwan-hang & Anor, the Court of Appeal established that the police had the power to set up cordon lines for the purpose of regulating peaceful assemblies. And in Chan Hau-man Christina, the Court of First Instance took the view that the police had a wide discretion in deciding what measures were to be used. Applying the relevant principles, I find that the setting up of the protest area and the security buffer zone was both necessary and proportionate to its aim. In this respect, I accept the prosecution’s submission that the relevant measures had struck a balance between the need to protect the personal safety of a state leader and the conduct of activities by protesters or petitioners.

22. At trial, I received evidence regarding different treatments for different leaders: when Wang Guangya, Director of the Hong Kong and Macau Affairs Office, visited Hong Kong, protesters could go near to the Grand Hyatt Hotel, but when Li Keqiang, the Vice Premier, visited Hong Kong, the protest area was set up farther away. The defence submitted that this was an unreasonable restriction on the freedom of the protesters. However, in my view, such an arrangement is understandable as there is nothing improper for different levels of security arrangement to be made for officials of different ranks. The arrangement in question was necessary and proportionate.

23. By making the above findings, I have dealt with most of the defence arguments.  As I have found that the Appellant intended to break through the ‘human chain’ formed by PW1 and PW2 in order to cross Harbour Road, no issue as to preventive law enforcement arose.  At that time there was indeed a breach of the peace, and it was therefore lawful for PW2 to arrest the Appellant as she did.  I am satisfied and accept that at that time PW1 and PW2 were duly executing their duty, namely to stop the Appellant from entering into Harbour Road, and the Appellant’s conduct of charging [the cordon line] also constituted an obstruction to the lawful exercise by PW1 and PW2 of their police power.  Therefore, I convict the Appellant on both charges.”

9.At trial and on appeal, as stated by the Magistrate in the Statement of Findings, the factual issues have been limited.  The main issues in the present case are whether the “security buffer zone” set up by the police at the material time was too large, whether the protest area (Designated Public Activity Areas) was too far away from the hotel in which the Vice Premier stayed, and whether the measures adopted by the police were necessary and proportionate.

10.There is no dispute that the citizens of Hong Kong enjoy the right to freedom of lawful expression.  Generally speaking, the right to freedom of lawful expression will not and should not be confined to a particular corner or location in the street.  This is a fundamental right conferred by the Basic Law on the citizens of Hong Kong.

11.Nor is it in dispute that this right to freedom of lawful expression is not absolute and is subject to restrictions under certain circumstances.  The Court of Final Appeal has made it clear in previous decided cases that any such restrictions sought to be imposed by the authorities (such as the police) must be necessary and proportionate.

12.The problem in the present case is that none of the prosecution witnesses mentioned why the police had to impose those restrictions on the day in question.  What the Magistrate said in his verdict is, in essence, as follows: that in To Kwan Hang[1], the Court of Appeal held that the police were empowered to establish cordon lines when regulating processions and assemblies; that furthermore, in the judicial review case of Chan Hau Man Christina[2], the Court of First Instance held that, in preserving order during processions and protests, the police had a wide discretion in deciding what measures were to be used; that the Magistrate could therefore  rely on the relevant “principles” in those two cases; and that when the police officers in the present case tried to stop the Appellant from moving forward, they were in the course of executing their duties imposed on them by the Police Force Ordinance, and by obstructing them in the execution of their duties, the Appellant had committed a criminal offence.  

13.With respect, I have reservations on the approach adopted by the Magistrate.

14.In To Kwan Hang, although the Court of Appeal agreed that the police were empowered to establish cordon lines, the police power referred to by the Court is not free from any restrictions.  The Court of Appeal said, “… the establishment of the cordon in question was a proportionate response to it.” (at 259, para.45) In other words, the establishment of cordon is such measure as is appropriate in the circumstances.

15.As for Chan Hau Man Christina, it is true that Andrew Cheung J said in his judgment that the police had a very wide discretion when preserving order during processions and protests.  However, the learned Judge then went on to quote the following statement made by the Court of Final Appeal in Leung Kwok Hung [3]: “What are reasonable and appropriate measures must depend on all the circumstances in the particular case.” (at 805, para.14).  By the same token, there is no universally applicable general rule and in each case a decision has to be made in light of its particular circumstances.

16.It is open to the police to take immediate measures in response to what happens during processions and assemblies.  For example, in Chan Hau Man Christina, the police decided to take protesters away from the scene although it was another group of people objecting to the protests at the scene who became emotional and resorted to violence.  For the purpose of protecting a state leader during his/her visit to Hong Kong, the police are entitled to make appropriate deployments in advance based on information or intelligence obtained by them.  If the police learn from the information or intelligence obtained that the personal safety of the state leader to be protected is exposed to substantial risks such as terrorist attacks, then the police cannot be criticized for making security arrangements which go beyond merely sealing off the area in the vicinity of the Grand Hyatt Hotel.  On the contrary, if the information obtained suggests nothing more than a rational, safe and peaceful assembly and procession, it will be more than sufficient for the police to send just a few police officers to be with the protesters.  For this reason, the Magistrate could not say, by merely relying on deployments made by the police for processions and assemblies in the past, that the deployment for the present visit of the Vice Premier to Hong Kong was appropriate. What To Kwan Hang and Chan Hau Man Christina indicate is only that the courts agreed that the measures taken by the police in the incidents referred to in those two cases were appropriate.  These measures have not “become principles” as stated by the Magistrate.

17.I understand that very often the police receive different information or intelligence regarding the risks to which those being protected by the police are exposed, and that such information may be strictly confidential and cannot be divulged, and hence not appropriate to be disclosed to the public.  Under such circumstances, the senior police officer in charge of security matters can point out to the court the general nature of the information or intelligence obtained by the police; if necessary, an application can be made to the court for non-disclosure on the ground of public interest immunity.

18.Furthermore, the Magistrate should not have held, for the reason that “there is nothing improper for different levels of security arrangement to be made for officials of different ranks”, that the arrangements on the day in question were reasonable and appropriate.  While what amounts to reasonable and appropriate deployments may differ according to the rank of the official to be protected, the underlying concern is not about the ranks of officials, but about their personal safety or the need for the police to address issues of public safety or public order as a result of the presence of the officials.  In the present case, the prosecution witnesses were merely junior police officers who were responsible for preserving order. The prosecution had not adduced any evidence to show why it was necessary for the police to make the deployments as they did on the day in question, nor had they indicated that the measures taken at that time were reasonable, appropriate and proportionate.

19.Section 10 of the Police Force Ordinance confers powers and imposes duties on police officers.  In Leung Kwok Hung, the Court of Final Appeal also pointed out that there is a duty on the part of the government (including the police) to ensure that peaceful processions and assemblies take place in an orderly manner.  In the absence of evidence to show that it was reasonable and appropriate for the police to set up protest areas and security buffer zones on the day in question, it could not possibly be a duty of the police officers, in the particular circumstances, to stop the Appellant from submitting a petition letter to express her views.  Accordingly, the prosecution had failed to prove that the two female police officers were acting in the execution of duty at the material time, and the two charges against the Appellant could not possibly be established.

20.Furthermore, it was wrong for the Magistrate to state, as he did in the Statement of Findings, that the Appellant’s acts had in fact caused a breach of the peace.  Apart from the “attack” upon the two police officers, there was no evidence to show that there were other people at the scene who, by reason of the Appellant’s acts, used or were going to use force to commit a breach of the peace.  At law, there is a specific definition of breach of the peace.  At the hearing of the appeal, the Respondent accepted that there was simply no evidence in the present case to show that there was a breach of the peace at the material time.

21.For the above reasons, the conviction is quashed and the sentence set aside.

Mr. Douglas Kwok,instructed by Messrs. Ho Tse Wai, Philip Li & Partners, for the Appellant

Mr. Isaac Tam, Acting Senior Assistant Director of Public Prosecutions, and Mr. Andrew Cheng, Acting Senior Public Prosecutor of the Department of Justice, for the Respondent

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor.