HKSAR v. Wong Yuk Man

HCMA 453/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 453 OF 2013

(ON APPEAL FROM ESCC 271/2012)

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D E C I S I O N

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1.The motion puts forward for my certification five points of law.

2.The first point is not reasonably arguable.  It defies common sense to suggest that the phrase “a public highway or thoroughfare or a public park” does not include in its meaning pavements.  The example given in paragraph 43 of my judgment on the appeal explains why.

3.The second point is academic.  It does not affect the outcome of the case.  The evidence clearly shows that the unauthorized assembly was “convened”, “organized” or “formed” – as the case may be – by the applicant and others (see paragraph 40 of my judgment).

4.The third point is not reasonably arguable.  It gives no heed to the case of Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229 which, without reading in any such “defence”, upheld the constitutionality of the notification system.

5.The fourth point is not reasonably arguable. There is no comparator to evidence discrimination (see paragraph 28 of my judgment).

6.The fifth point also is not reasonably arguable.  The time‑honoured test is one of breach of the peace which in fact is what American case law points to (see paragraph 57 of my judgment).

7.This application is without merits.  It is dismissed.

Mr Edmond Lee, SADPP of the Department of Justice, for the respondent

Mr Douglas Kwok, instructed by JCC Cheung & Co, for the applicant