HKSAR v. Leung Kwok Hung and Others

HCMA 234/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 234 OF 2012

(ON APPEAL FROM KCCC 3676 OF 2011)

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Coram: Hon Derek Pang J in Court

Dates of Hearing: 24 & 25 April 2014

Date of Respondent’s Supplemental Submissions: 22 May 2014

Date of 1^st Appellant’s Supplemental Submissions: 30 May 2014

Date of 2^nd Appellant’s Supplemental Submissions: 30 May 2014

Date of Judgment: 9 June 2014

J U D G M E N T

1.The five appellants herein (D1 to D5) were charged with 4 counts in total and were convicted after trial on one or more of the charges, as follows: D1 – Charge (1) “criminal damage”, contrary to section 60(1) of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong; D1 to D5 – Charge (2) “acting in a disorderly manner at a public gathering”, contrary to section 17B(1) of the Public Order Ordinance, Cap 245 of the Laws of Hong Kong (“POO”); D1, D2 and D4 – Charge (3) “behaving in a noisy or disorderly manner in a public place”, contrary to section 17B(2) of the POO; and D1 – Charge (4) “criminal damage”, ditto. D1 was sentenced to imprisonment for a total term of 2 months and was ordered to pay compensation in the sum of $4,150; D2 to D5 were each sentenced to imprisonment for 3 weeks. The appellants now appeal their convictions and sentences.

Background and charges

2.On 22 July 2011, the HKSAR Government conducted a two-month public consultation on arrangements for filling vacancies in the Legislative Council, during which the Constitutional and Mainland Affairs Bureau organized two open forums for members of the public.  The forum in question (i.e. the second forum) was held at 6 p.m. on 1 September 2011 in the lecture hall on 1/F of the Hong Kong Science Museum in Tsim Sha Tsui East.  It was presided over by Mr Stephen Lam, the then Secretary for Constitutional and Mainland Affairs, and Mrs Pamela Tan, the Director of Home Affairs.

3.The public who wished to attend the forum had to register by phone in advance on a first-come-first served basis, and no number was assigned to the seats.  Walk-in admission arrangements were also in place, allowing members of the public who had not registered to queue up outside the venue, but whether seats would be available to them depended on the number of vacant seats at that time.  Furthermore, the Bureau also reserved a small number of seats for the Legislative Councillors and District Councillors who had not been able to make any reservations.

4.Regarding the layout of the venue, the podium where people queued up for walk-in admission was called the “queue-up zone”, from where one could enter a “reception hall” by going through a glass door; and from there, one could go through a wooden door to reach a “lecture hall” or “conference hall”.  (The terms in quotation marks are as used by Mr Peter Law, the trial magistrate, and will be adopted throughout this judgment.)

5.Of the five appellants herein, only D2 was a member of the “audience” who had registered for admission in advance.  The four other appellants, i.e. D1, D3, D4 and D5, were merely four unauthorized “entrants” out of a total number of about 50.  D1, D3, D4 and D5 were alleged to have gatecrashed the reception hall and lecture hall, and, together with D2 who was in the lecture hall, committed two offences under the POO:

Charge (2)   (Section 17B(1))

“[D1] to [D5] … at 1/F, Hong Kong Science Museum, Tsim Sha Tsui East, Kowloon, Hong Kong (including the lecture hall and its reception area), together with other persons unknown, acted in a disorderly manner at a public gathering, namely, the Second Open Forum on Arrangements for Filling Vacancies in the Legislative Council, for the purpose of preventing the transaction of the business for which the said public gathering was called together.”

Charge (3)   (Section 17B(2))

“[D1], [D2] and [D4] at 1/F, Hong Kong Science Museum, Tsim Sha Tsui East, Kowloon, Hong Kong (including the lecture hall and its reception area), together with other persons unknown, behaved in a noisy or disorderly manner, or used threatening, abusive or insulting words in a public place, with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused.”

6.The subject matters of the two counts of criminal damage were doors, which were alleged to have been damaged by D1 and other unknown “entrants” when they gatecrashed the reception hall and lecture hall:

Charge (1)

“[D1] … at 1/F, Hong Kong Science Museum, Tsim Sha Tsui East, Kowloon, Hong Kong, together with other persons unknown and without lawful excuse, damaged the glass door separating the podium and the reception area of the lecture hall, being property of the Hong Kong SAR Government, intending to damage such property or being reckless as to whether such property would be damaged.”

Charge (4)

“[D1] … at 1/F, Hong Kong Science Museum, Tsim Sha Tsui East, Kowloon, Hong Kong, together with other persons unknown and without lawful excuse, damaged the wooden door separating the lecture hall and its reception area, being property of the Hong Kong SAR Government, intending to damage such property or being reckless as to whether such property would be damaged.”

Prosecutionevidence

7.There were 10 prosecution witnesses (PW), whose evidence was summarized by the magistrate in the Statement of Findings:

“3. [PW1] Mr Cheng, an Assistant Secretary of the Constitutional and Mainland Affairs Bureau, was responsible for taking care of the logistics of the forum. The quota of registered ‘audience’ for that day was full. However, the organizer still made the arrangement that, if any members of the ‘audience’ were absent by 6.10 p.m., arrangements would be made for people of the walk-in category waiting in the queue-up zone outside the venue to be admitted. At that time the witness came to know that there were 28 vacancies for the walk-in but approximately 100 people were waiting in the queue-up zone, including [D1], a Legislative Councillor, being the 40^th to 50^th person in the queue. Mr Lam instructed him to invite [D1] to enter the venue without the need to queue up. Mr Cheng informed [D1] of the invitation but [D1] rejected it, saying he did not want to enjoy any privilege. Then the witness saw a group of people rushing towards the entrance of the venue, so Mr Cheng returned to the conference hall via another staff access. When he entered the conference hall, the ‘entrants’ were already there. At that time, the place was very chaotic. Some people, including reporters, even [rushed] towards the stage. He escorted Mr Lam and Mrs Tan to the backstage and then returned to the front stage to see what was going on. Although earlier on Mrs Tan had announced that the forum was adjourned for the time being, he still instructed the master of ceremony to repeat the announcement in case people outside could not hear it clearly by reason of the chaos and noise. The forum was suspended because under the chaotic circumstances it was impossible to proceed with the forum which was held for the purpose of hearing and receiving views of the public. It was also hoped that the forum could resume after order was restored. It was not the case that the forum had come to an end. During the suspension, he went to the backstage and sought instructions from Mr Lam on the suggestion that if order could be restored, the forum could resume and the forum time could also be extended. What they were concerned about was order, not the presence of [D1]. Mr Cheng also pointed out that the logistics of the consultation forum in question were arranged by the Home Affairs Department for the Constitutional and Mainland Affairs Bureau, and one of the intended arrangements was that, if people waiting in the queue outside the venue outnumbered the vacant seats for walk-in, staff members of the Home Affairs Department or security guards of the service contractor would notify those people. However, he did not know whether that arrangement was carried out that day.

4. [PW2] Mr Hau was a District Councillor who was admitted as a member of the ‘audience’ and sitting some 7 to 8 feet away from the stage. Everything was in good order after the forum commenced. However, about 20 minutes into the forum, a group of ‘entrants’ went into the conference hall. Some of them were wearing Guy Fawkes masks, some of them had their heads covered by black cloth, and [D1] was in the group. Some people shouted out slogans, and those at the front of the group rushed towards the stage while those behind walked in quick pace. Some people among those standing at the back were holding cameras, but it was not known whether they were reporters or not. They barged their way through the staff members who tried to stop them, during which some people and the ‘audience’ shouted abusively at each other. Finally, some people went up the stage and screamed, swept things off the table, threw and scattered pieces of paper about and made speeches. The witness was very frightened. He had never come across an occasion so chaotic and beyond control. Being very close to the stage, he was worried as to what they would do next and was concerned about being hit by objects thrown about.

5. [PW3] Mr Yip was a Senior Executive Officer of the Home Affairs Department who was responsible for taking care of sundry items at the forum. After the ‘entrants’ entered the conference hall, things became chaotic. Some people went up the stage and spoke with the microphone provided by the forum, so he instructed the staff members to switch off the microphone. However, the ‘entrants’ continued to speak, using loudspeakers that they brought along. After the incident, he checked the things which were damaged.

6. [PW4] Mr Law was the manager of the security company engaged as a contractor. He pointed out that after the ‘entrants’, including [D1] and people wearing Guy Fawkes masks, entered the lecture hall, things became very chaotic. After Mr Lam and Mrs Tan had gone to the backstage, some people even rushed to the backstage. For the sake of safety, he instructed security guards to form a human chain in order to stop those people. However, those people charged at them, and there were bumping and jostling between the people on the two sides. In the end, those people did not succeed. The witness did not know whether those people tried to go to the backstage for the purpose of expressing their views, but their actions did not appear to be moderate.

7. [PW5] Miss Wong, a staff member of the Leisure and Cultural Services Department, was on duty in the reception hall. Soon after the forum commenced, staff members of the Home Affairs Department were about to arrange for the people waiting outside who had obtained walk-in admission successfully to be admitted in groups. Suddenly she heard her colleague shouting “Lock the door quickly”, so she immediately closed the glass door through which entrance could be made from the podium of the square. When the door was closed and about to be locked, three or four persons, who rushed from the podium, reached the door. She and her colleagues jointly pulled the handle of the glass door hard from the inside. However, those persons pulled the handle from the outside, pounded at the door and demanded to be let in, resulting in a tug of strength between the two sides. More and more people gathered outside the door. She saw [D1] through the glass door. As he was blocked by some persons in front of the door, he jumped up to the planter next to the glass door and did actions similar to those done by the persons in front: pounding at the door, tugging the door, pulling the handle, and also shouting ‘fake consultation’ and asking loudly why they were not let in. Thereafter he returned to the ground and continued pulling the handle and pounding at the glass door together with those who were pulling the door. During that time, suddenly she heard a snap, and the top part of the handle on the outside came off. [D1] ‘withdrew his hand briefly’ and then stretched out his hand again to continue pulling the handle. Ten-odd seconds later the glass door was pulled open. The whole pulling episode lasted about 3 minutes. During the tug of strength, the witness tried her best to look horizontally ahead and also asked her colleagues to do the same, with a view to pretending to be calm in the hope that the other side would feel that they were not frightened. Her eyes were about 5 feet above the ground, and when the defendant was on the ground, with his hand holding the handle, the height was about 5 feet 8 inches above the ground. The moment the door was opened, the crowd outside rushed in. The witness described that they looked very excited, and that one could tell from their eyes that their mental state was different from that of a normal person. Being the one who bore the brunt of the impact, the witness was pushed backward and hit something behind her, causing her an injury. About 50 people entered the reception hall, and the scene was chaotic and very noisy. The people’s emotions were running high. Some people pointed their fingers at the staff members and scolded them. Some people tore the forum booklets on the table and scattered them like ‘a fairy scattering flowers’, and some people pushed the publicity boards down. Then some people went towards the wooden door leading to the lecture hall. In the end, the wooden door was opened and the crowd entered the lecture hall.

8. [PW6] Mr Thirlwell was Senior Manager of the security company.  He was in the reception hall and saw that [D1] rushed to [the glass door] from somewhere at a distance and tugged the handle of the glass door.  The witness had assisted in tugging the glass door handle.  When the crowd rushed into the reception hall, he was stunned and petrified.  Someone threatened him, telling him to get out of the way or he would be injured.  He was even pushed to the wall.  After the crowd entered [the reception hall], some people tried by various means to open the wooden door leading to the lecture hall, including pounding at the door and inserting a document file into the door gap.  Someone even took a chair from somewhere 10-odd feet away and passed it to [D1], who then used it to bump against the middle of the wooden door and tried to prize open the door with the leg of the chair.  In the end, the wooden door was opened.  Subsequently, clear damage marks were found on the door.

9. [PW7] Mr Ngai, a Services Assistant of the Leisure and Cultural Services Department, was on duty in the lecture hall.  10-odd minutes after the forum commenced, he received instruction via walkie-talkie to close the wooden door leading to the lecture hall from the reception hall.  After the door was closed, he saw, through a small window on the door, that some people were trying to open the wooden door from outside.  Initially the other side did not know that [sic], so they bumped against the door.  However, after they knew that [sic], they pulled the door and tried to prize open it.  During the whole process, what they did included bumping against the door and pulling its handle.  The witness also tugged the door handle, in the course of which a screwdriver and something black, thin and elongated in shape, consistent with the shape of a leg of a chair, were inserted into the door gap.  The witness confirmed that initially he saw, through the small window on the wooden door, that [D1] bumped against the door with his upper arm.  After the wooden door was forced opened, the crowd rushed in.  The witness spread his arms trying to stop them but in vain.  He was even forcefully pushed to the staircase by a person wearing a Guy Fawkes mask and he felt pain.  Subsequently, the damage in question was found.  Later on, after that group of people had gone up the stage, they had disputes with his female supervisor who was on the stage.  The witness intervened, trying to separate them, but was alleged to have assaulted others.

10.  [PW8],Deputy Manager of the Science Museum talked about the damage to the glass door and the wooden door.

11.[PW9] was a plainclothes police officer inside the lecture hall.  After the ‘entrants’ entered the lecture hall, [D1] moved towards the stage.  The police officer revealed his identity, asked [D1] to keep calm, and tried to block [D1]’s way with his body and arms.  However, [D1] warded him off and cried out slogans.  He and members of the excited ‘audience’ were scolding, pushing and bumping each other.  He was even pulled by the ‘audience’ and unable to move forward.  Fellow police officers intervened and separated the ‘audience’ and [D1], who in the end managed to go up the stage.  The police officer denied that he tried to stop [D1] from moving forward because he did not want the officials on the stage to feel embarrassed.  He said he did so simply for the sake of security and safety.  Regarding the fact that he did not continue trying to stop [D1] after Mr Lam and Mrs Tan left, it was because the protestors had outnumbered the police officers and it was therefore difficult to enforce the law there and then.

12.[PW10] Miss Choi was a community organizer who attended the forum as a member of the ‘audience’.  After the ‘entrants’, including [D1] and people wearing Guy Fawkes masks, entered the venue, things became very chaotic and it was difficult to tell whether someone was an ‘entrant’, a staff member or a reporter.  Some people cried out slogans, spoke on the stage, and threw and scattered pieces of paper.  Some people sitting behind her were quarrelling, and some people and those on the stage were shouting at one another.  The witness worried that the situation might worsen and that she, an innocent party, might be bumped and knocked down by others.  For the sake of personal safety, she decided to leave the venue early.  At that time, 10-odd attendees also left the venue, some of whom she knew.”

Defence case

8.The five appellants neither gave evidence nor called any witness.

Verdicts at trial

9.The magistrate accepted the evidence of all prosecution witnesses except that of PW6[1], and gave full weight to their evidence.

Appeal against convictions

10.For ease of discussion, I shall first deal with Charges (2) and (3) which concern all the appellants, and then turn to Charges (1) and (4) which concern D1 only.

Charge (2)

11. The appellants complain that the magistrate erred in four aspects in reaching his verdict on this charge.

Content

12. The English and Chinese versions of section 17B(1) of the POO read as follows:

“Any person who at any public gathering acts in a disorderly manner for the purpose of preventing the transaction of the business for which the public gathering was called together … shall be guilty of an offence .…”

「任何人在為某項事情而召開的公眾聚集中作出擾亂秩序行為 …… 以阻止處理該事情，即屬犯罪 ……。」

13.In HKSAR v Chow Nok Hang [2014] 1 HKC 241, Ribeiro PJ pointed out[2]:

“58. … In my view, both as a matter of language and of the evident statutory purpose of s 17B(1), a person only has the ‘purpose of preventing the transaction of the business for which the public gathering was called together’ if his purpose is to make it impossible in practical terms to hold or continue with the gathering; or at least, to interrupt the gathering for such a duration or by using such means as substantially to impair the intended transaction of business. It certainly does not apply where, as in the present case, the demonstrators’ purpose evidently did not involve more than a brief interruption of the prize-giving.

59. The same result is arrived at on a purposive construction. As stated above, the evident purpose of s 17B(1) is to protect the exercise by others of their right of peaceful assembly. The need for such protection is obviously triggered where the defendant’s purpose is to prevent the public gathering from happening or continuing; or substantially preventing it from transacting the intended business of the gathering. But an intrusion which must have been envisaged to cause only a minor interruption, with the gathering then resuming, cannot be said to have been intended to deny the people attending the gathering that right. It is not the statutory purpose to employ s 17B(1) to punish such minor interruptions.

60. As previously noted, restrictions on fundamental rights are narrowly construed. So if ‘preventing’ can properly be given a range of meanings, the Court inclines towards adopting a meaning which preserves a wider ambit for the relevant rights.”

14.Similarly, for the purpose of safeguarding human rights, even the fundamental rights of a suspect, Tang PJ has also said:

“154. Since ‘preventing’ also impacts on important freedoms, it should be interpreted so that it is confined within reasonable bounds. Here, too, it is necessary to balance the conflicting rights of the protestor and the rights of the persons at the gathering. I believe such rights should be reconciled in the way I suggested in para 137 above. I believe, properly construed ‘preventing’ requires an interruption to an extent beyond what could be expected to be tolerated by other persons in a democratic society, such as breaking up or a substantial interruption of a gathering.

155. Given the cardinal importance of the freedom of expression, demonstration and assembly I have no doubt that the interruption for a minute or so in this case is insufficient.  Moreover, s 17B(1) provides in terms of preventing the transaction of the business for which the gathering was called.  That argues against a brief interruption of a gathering.  But, I do not agree with Mr Lee that nothing short of an abortion of the gathering would suffice …”

15.Relying on the above judgments, the appellants contend that the magistrate did not fully understand the meaning of “preventing”.  The first two paragraphs in the Statement of Findings which address this issue read as follows:

“28. The [POO] has not defined the word ‘prevent’ …. However, in ordinary parlance and adopting an interpretation based on common sense, the word can be understood as causing to stop, discontinue, restrain, hinder and obstruct a normal operation etc. ‘Preventing’ should also include restraining or hindering the resumption of a matter which has been suspended.

29. In the present case, the acts of the ‘entrants’ after entering the hall had directly forced the ongoing consultation forum to stop temporarily, and during such suspension, the further acts of disturbance, in particular occupying the stage and speaking, would definitely have rendered it impossible to resume the forum.  I find that their acts fell within the meaning of ‘preventing’.”

16.The appellants submit that in the present case, contrary to the magistrate’s understanding, there was no “preventing” in the sense explained by the Court of Final Appeal:

(1) Only 16 seconds after the “entrants” entered the lecture hall, the Director of Home Affairs took the initiative to announce a break and then went to the backstage with the Secretary for Constitutional and Mainland Affairs.

(2) After 22 seconds, the organizer further announced that the staff needed time to deal with the condition in the venue and that the forum would have a break, and requested the attendees to remain in their seats during the break.

(3) It was only after the Director and the Secretary had gone to the backstage that the “entrants” and D2 went up the stage to speak and shout out slogans.

(4) The “entrants” began to leave the scene after D5 went up the stage to speak.  D1 even indicated to the people who lagged behind that they should leave as soon as possible.

(5) The “entrants” remained in the lecture hall for only 15 minutes in total, after which the open forum, which was scheduled to last two hours, continued.  And on PW1’s evidence, the duration of the forum would be extended accordingly and the vast majority of the “audience” stayed behind.

17.In other words, the suspension of the forum was a decision made by the organizer unilaterally, whereas the “entrants” and D2 did leave promptly after openly expressing their views without even causing the minimum amount of the requisite substantial impairment to the forum.  This is the first argument put forward by the appellants.

18.Secondly, the appellants contend that there was no sufficient evidence to prove that the “entrants” and D2 acted for the purpose of preventing the open forum from proceeding, the reason being that the court must not mix up consequence with purpose.  Furthermore, an incidental, casual or fortuitous purpose does not satisfy the statutory requirement.  In Chow Nok Hang Tang PJ had this to say:

“156. Section 17B(1) also requires that the disorderly behaviour was for the purpose of preventing the transaction of the business for which the gathering was called. Barnes J was of the view that because the gathering was interrupted that was the purpose of the disorderly conduct. With respect I do not agree.

157. In Sweet v Parsley [1970] AC 132, Lord Morris said in connection with s 5 of the Dangerous Drugs Act, under which it was an offence for an occupier to permit premises to be used for the purpose of smoking cannabis, that it ‘denote a purpose which is other than quite incidental or casual or fortuitous: they denote a purpose which is or has become either a significant one or a recognised one though certainly not necessarily an only one. There is no difficulty in appreciating what is meant if it is said that premises are used for the purpose of a dance hall or a billiard hall or a bowling alley or a hair-dressing saloon or a café.’ I believe purpose under s 17B(1) is used in a similar sense.

158. I see no basis for the conclusion that the 2^nd appellant had as his purpose, the prevention of the transaction of the business for which the gathering was called.”

19.The third argument is also related to purpose.  The appellants submit that in respect of “for the purpose of” achieving a certain state of affairs, the requisite mens rea must be “with intent” and not “reckless”.  However, the magistrate’s ruling on this issue, in particular the reference to burglary as an example, was obviously wrong.  The appellants contend that prizing and damaging doors and windows, being merely acts which a burglar may perform while entering the premises, constitute only the latter.  The most important paragraph in the Statement of Findings which is relevant to this issue reads as follows:

“30. When the ‘entrants’ forced their way into the hall and subsequently occupied the stage, although their ultimate purpose was to protest and make known their stance, those actions would at the same time necessarily trigger some events (commotion and creating disturbances) before the said purpose could be achieved. Since those events which would happen in the course of taking those actions were plainly foreseeable, they should be taken into account. For example, a burglary must include prizing and damaging the door and window in order to gain entry into premises, and even though the offender’s purpose was to steal and not to damage anything, damaging the door and window must be included as a purpose. In the present case, when [the appellants] staged a protest which involved such aggressive actions, by both objective and subjective standards they must have known full well and it must have been plain and obvious to them that the smooth proceeding of the open forum would be hindered, and the occupation of the stage would definitely render it impossible to resume the suspended open forum. Therefore, their intention necessarily included the inseverable [intention] of ‘preventing’ the open forum from proceeding, and hence they were definitely acting with intent to prevent the transaction of the business.”

20.Finally, the appellants put forward the fourth argument that in the end the magistrate convicted the appellants by relying on the doctrine of joint enterprise, and the appellants contend that the magistrate erred in doing so.

Discussion

21.Later in this judgment I will address the question of joint enterprise, which is also relevant to Charge (3), with a conclusion favourable to the appellants.

22.The example of burglary referred to by the magistrate is problematic.  Even if it is assumed that a burglar has to prize and damage doors and windows before gaining entry into the premises, the act of damaging remains only the means.  Even if such means is irreplaceable and therefore regarded as the burglar’s intention, it remains no more than an incidental or even casual or fortuitous purpose within the meaning of Sweet v Parsley that Tang PJ referred to.  In short, a burglar will simply not take the trouble to cause the damage unless it is necessary to do so.  Furthermore, with the benefit of the explanation given by the Court of Final Appeal, we know that “preventing” and protest are two different matters, and that the latter does not necessarily lead to the former.  The example given by the magistrate that entering the premises (protesting) must require breaking open the door (“preventing” the transaction of the intended business of the gathering) is therefore wrong. The magistrate erroneously arrived at a conclusion in respect of purpose, and it is obvious that he mistakenly thought that even a relatively insignificant interruption could also result in a conviction.  In other words, he had not indicated [that he had considered] the concept of substantial impairment.

23.In sum, the magistrate has misunderstood section 17B(1) in a number of ways.  As to whether Charge (2) still stands, the respondent asserts that the conduct of the “entrants” and D2 was clearly aimed at “stirring up chaos at the forum” (i.e. purely causing disturbances).  For instance, they shouted “object to fake consultation” at one stage and “Stephen Lam step down” at another, without any intention to express any opinion on the subject matter to be explored in the forum. Furthermore, the people involved had turned the lecture hall into such a mess that it could not be properly cleared up to allow the forum to resume until 15 minutes after the incident had come to an end[3].  However, this submission is flawed in failing to take into account the nature of the protest itself and assuming that an opinion has to be expressed in a way that meets certain minimum standard.  The fact, on the contrary, is that a slogan is equivalent to a message and that acts done in violation of rules or even in a disorderly manner can very often intensify the drama of a protest.  Doing so will of course entail legal consequences for which the people involved will have to be responsible, but their acts do not necessarily constitute evidence that the purpose was to “prevent” the gathering[4].

24.Not without reservation (see the next paragraph), I accept the appellants’ submission that there was no sufficient evidence to prove that the “entrants” and D2 had intended to “prevent” the forum from proceeding.  For example, although the duration of their stay in the lecture hall was not short, there was a real possibility that it was because the organizer itself announced a suspension.  Even though they turned the lecture hall into a mess, they did so by merely scattering pieces of paper around and knocking over plants in flowerpots, and they did not damage the facilities for use at the forum.  If this conclusion leads to uncertainties over what is needed to prove that protestors intended to “prevent” a meeting from proceeding, I will reply that it suffices if the court is sure on the evidence that the protestors did what they did for such a purpose, and their acts of, for example, destroying things on the premises, driving others away and refusing to leave[5] will all be cogent evidence in support.  It is true that this standard is not low and perhaps only a few cases will pass it.  Nevertheless, it can effectively strike a balance between the rights of the organizer and those of the protestors.  In the final analysis, what section 17B(1) aims to combat is conduct which has caused substantial impairment to a gathering of others or even rendered it impossible to proceed with the gathering.

25.Before coming to the above conclusion, I have spent quite some time pondering the question of whether the forum was forced to be suspended.  In one sense, it is certainly correct to say that it was, the reason being that, had the “entrants” not caused the disturbances, the forum would not have been suspended.  However, if the court puts too much emphasis on this first cause, then whether the people involved had contravened section 17B(1) would very much depend on the organizer’s reaction; for instance, if the organizer was too ready to declare a meeting adjourned, or deliberately refused to resume the meeting, or by reason of the organizer’s own problems was unable to resume the meeting after a lengthy suspension, then the chances of those involved being convicted of the offence would significantly increase.  I do not think this is a correct approach to the relevant question.

26.Finally, it has to be mentioned that the trial of the present case concluded on 19 March 2012, which is one year and nine months earlier than the judgment in Chow Nok Hang.  At that time, the magistrate did not have any decided case to rely on.

Conclusion

27.The convictions of the appellants in respect of Charge (2) cannot be maintained.

Charge (3)

28.I now deal in turn with the various criticisms levelled by the appellants against their convictions on this charge.

The charge is duplicitous

29.The particulars of Charge (3) have been set out in paragraph 5 above.

30.The appellants contend that, so formulated, the charge comprised the following six allegations:

(1) behaving in a noisy manner in a public place, with intent to provoke a breach of the peace.

(2) behaving in a noisy manner in a public place, whereby a breach of the peace was likely to be caused.

(3) behaving in a disorderly manner in a public place, with intent to provoke a breach of the peace.

(4) behaving in a disorderly manner in a public place, whereby a breach of the peace was likely to be caused.

(5) using threatening, abusive or insulting words in a public place, with intent to provoke a breach of the peace.

(6) using threatening, abusive or insulting words in a public place, whereby a breach of the peace was likely to be caused.

31.The appellants further submit that “behaving in a noisy manner”, “behaving in a disorderly manner” and “using threatening, abusive or insulting words” are three types of behaviour completely different in nature; and whether the offenders acted “with intent to provoke a breach of the peace” or acted in such a way that “a breach of the peace was likely to be caused” also involve two different tests, namely objective and subjective tests respectively.  In fact, it was held in the English case of Stanley v Patrick [1971] Crim LR 283 that “with intent to provoke a breach of the peace” and “a breach of the peace was likely to be occasioned” referred to two different offences[6]:

“The words ‘with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be occasioned’ envisaged such different situations and such different intents that although certain situations existed where it could describe two ways of committing the same offence, two offences were created.”

Discussion

32.I delivered judgment on a similar question in HKSAR v Wong Yuk Man and Chan Wai Yip HCMA 453/2013 (date of judgment: 19 May 2014)[7].  My conclusion is that whether a charge violates the relevant rules depends entirely on the underlying statutory provision: is it directed at one or more than one act or omission?  If it is the former, rule 5 of the Indictment Rules (Cap 221C, Laws of Hong Kong) applies:

“Where an offence created by or under an Ordinance or a national law applying in Hong Kong states the offence to be the doing or omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of any different intention or states any part of the offence in the alternative, the acts, omissions, capacities or intentions or other matters stated in the alternative in the Ordinance or national law may be stated in the alternative in an indictment charging the offence.”

33.This is in line with the analysis on this subject as set out in Blackstone’s Criminal Practice 2014 (paragraph D11.55):

“… decisions on whether an enactment creates one or several offences have consistently turned on whether, in defining the conduct prohibited, the enactment refers to a single act (or omission) or to several. If one act is referred to, the enactment will almost certainly be construed as creating one offence, even if the mens rea or other elements thereof are defined in the alternative; if more than one, it will be held that the enactment creates a separate offence for each separate act.”

34.In my view, section 17B(2) of the POO is intended to combat behaviour which was likely to cause a breach of the peace in a public place.  This is one single offence.  As to the nature of the behaviour (behaving in a noisy manner? behaving in a disorderly manner? or using threatening, abusive or insulting words?), the intention of the people involved (to provoke a breach of the peace), or the position where the intention of the people involved cannot be proved or is not proved (to objectively assess whether a breach of the peace was likely to be caused), none of these is material.  Therefore, it is permissible to have all the above elements set out in the charge.

35.The judgment in Stanley v Patrick does not contain a similar analysis.  That case occupies only two pages in the law report.  On the other hand, in a subsequent case (Vernon v Paddon [1973] 3 All ER 302) the Divisional Court held that section 5 of the Public Order Act 1936 created one single offence.  Melford Stevenson J, one of the judges who gave the majority judgment, stated[8]:

“No one in my view can read those words [section 5] without realising that what the section is aimed at is the punishment of any form of human conduct which is intended to provoke a breach of the peace, or whereby a breach of the peace is likely to be occasioned. That is the essential feature of the offence. The fact that the adjectival phrases, and they plainly are adjectival phrases, used to describe the behaviour or conduct which may result in a breach of the peace are expressed disjunctively does not in my view militate at all against the view that this section is aimed at one offence.”

36.In Hong Kong, rule 5 of the Indictment Rules has also been cited in support of the finding that the phrase “endanger or cause to be endangered” is not duplicitous:  The Queen v Clement Vivian Couto MA 1046/1988.  This is similar to the provision concerned in Stanley v Patrick, but the result is completely different.

Magistrate’s analysis of elements of offence insufficient

37.The findings made by the magistrate in respect of Charge (3) are set out below in their entirety (the text is again extracted from the Statement of Findings):

“Disorderly manner（擾亂秩序行為）

25. The[POO]does not define the term ‘disorderly manner’, but a finding of fact can be made by referring to relevant cases, employing the common sense and applying an objective test. ‘Disorderly manner’ necessarily includes the element of breach of the peace, which includes actually causing or likely to be causing harm to a person, or putting a person in fear of being harmed.

26. On the facts of the present case, what the group of people did was a series of successive acts. It began with charging at the glass door, followed by commotion in the reception hall, and then forcibly charging at the wooden door. Thereafter, they entered the hall and then did a series of acts until they finally left. In my view, in assessing these acts, it is only logical that they should be looked at as a whole, without losing sight of their continuity. None of the episodes should be looked at in isolation, for this would hardly give an accurate picture of what actually happened. The facts were that before entering the conference hall, the group of people first charged at the glass door, and then instigated a kickup in the reception hall and forcibly charged at the wooden door. Added to these was what they did after storming into the conference hall, as a result of which the situation became chaotic and went out of control. A female member of the ‘audience’ was voicing her opinions but her speech was abruptly stopped and she was alarmed and did not know what to do. Taking into account the need to maintain order, safety concerns and the fact that the consultation forum could no longer proceed, it was of course open to the organizer to deal with the situation in more than one way; for example, to expel those people by force, or adjourn the forumtemporarily and evacuate. The organizer opted for the latter approach. I consider that the choice was by no means made out of panic or over-sensitivity, nor could the choice be said to be irrational. It is obvious from the awkward departure of the Secretary and the Director that they reluctantly evacuated for want of an alternative. It was never the case that they were willing to hand over the venue to those people. In the series of the subsequent acts of disturbance, the stage was undoubtedly occupied by force, and the noteworthy scenes in the course of this rowdy disturbance were: some people were highly agitated;the ‘entrants’ and the ‘audience’ slanged each other; [D1] was held by some people and could not move forward;and a female protester went up the stage and shouted out slogans but staff members snatched away the microphone and dragged her away. All these serve to show that some of the people at the scene were very angry with the ‘entrants’, so much so that some of them resorted to the use of force regardless of the consequences. Furthermore, [PW2] and [PW10]were worried about their own safety and, for fear of getting hurt in thecommotion, [PW10]left earlier than scheduled. I consider that the two of them were by no means over-sensitive and that those reactions of theirs were amply justified. I find that at the material time the situation was so chaotic that people were put in fear of being likely to sustain personal injuries by reason of the disturbance.

27. In conducting the balancing exercise for the purpose of the proportionality [requirement], I take the view that the personal safety of those at the scene was the major consideration, because nothing was more important than personal safety, and the personal safety  of the ‘audience’ was as important as that of the ‘entrants’.  Moreover, in exercising one’s basic rights, one must not override other people’s basic rights or adversely affect other people’s exercise of their basic rights, because every [person]’sbasic rights should command equal respect.  This is also a factor I have to consider. In the present case, by reason of the series of acts done by the ‘entrants’ who entered the venue, including cutting short the speech being made by the female member of the ‘audience’ and forcing the forum to suspend temporarily, those participants who behaved properly could not express their opinions or listen to other people’s views, and [PW2] and [PW10]were worried about their personal safety and [PW10] even left earlier than scheduled as a result thereof.  Such acts had undoubtedly deprived other people of their basic rights.  The yardstick to be used for assessment is the fact that Hong Kong is a peaceful society in which citizens carry out daily activities in an orderly manner.  The acts of disturbance on this occasion were unusual and astonishing.  The consequences of such acts were not only clearly foreseeable, but were indeed sufficient to cause a breach of the peace.  In my considered judgment, even when this matter was looked at in an open-minded and liberal manner, such acts were simply out of proportion and unreasonable and went beyond the limit of exercising one’s basic rights.  I am satisfied that the series of acts in question were such that they became uncontrollable andabhorrent and constituted a breach of the peace.  I find that, considered as a whole, what they did constituted disorderly behaviour.”

38.The appellants complain that the magistrate had not demonstrated a correct understanding of the offence.  The most obvious problem, it is submitted, is that the magistrate made no mention whatsoever of the requirement, as has been clearly set out in decided cases including Chow Nok Hang, that a breach of the peace has to be committed by people other than those who “behaved in a noisy manner”, “behaved in a disorderly manner” or “used threatening, abusive or insulting words”.  This, it is submitted, raised a serious question as to whether the magistrate thought that the offence was established merely because the conduct of the ‘entrants’ and D2 themselves breached the peace.  It is submitted that the concluding remark in the passage quoted above, namely that “the series of acts in question were such that they became uncontrollable and abhorrent and constituted a breach of the peace” was a strong indication that the magistrate did think that way.

Discussion

39.It is true that in Chow Nok Hang Chan ACJ said:

“13. Secondly, the fact that the accused’s disorderly conduct is a breach of the peace is not sufficient to establish the s 17B(2) offence. The language of the section clearly contemplates a breach of the peace by a person or persons other than the accused. (See Secretary for Justice v Chiu Hin Chung [2013] 1 HKLRD 227, [2012] HKCU 1272.) The first limb requires proof of an intent to provoke a breach of the peace and this clearly does not refer to the accused’s own breach of the peace, although one cannot rule out the possibility that his breach of the peace was committed with the requisite intention to provoke others to breach the peace. The second limb is equally clear: it refers to the likely effect of the disorderly conduct on others ….”

40.However, this is not the first decision ever made on this point. For example, as long as 11 years ago, in HKSAR v David Porter [2003] 2 HKLRD 510[9], mention was already made of the same point.  In that case, Beeson J said:

“26. There was no evidence, apart from the fact that people were frightened, or appeared to be frightened, that any one of them was likely to use violence, or be provoked into causing a scene, as a result of the appellant’s behaviour. Nor were the police officers present likely to have been incited to violence ….”

Beeson J cited an even earlier case of R v Li Wai Kuen [1973-1976] HKC 346 in support.

41.The relevance of the above facts is that David Porter was referred to by the trial magistrate in the present case in a footnote (“footnote 5”)at the end of paragraph 25 of the Statement of Findings.  Also referred to in this footnote is HKSAR v Yip Tak Ming HCMA 727/2004[10], which also involved the question of whether people other than the defendant could breach the peace.  I have no reason to assume that the magistrate had not read these cases carefully.

42.All in all, the analysis made by the magistrate in respect of Charge (3) is indeed rather general (the title he gave to the relevant paragraphs is merely “Disorderly manner (擾亂秩序行為)”), but the content of those paragraphs, particularly the part which stated that some “people at the scene” were angry with the “entrants” and willing to resort to the use of force, quite clearly indicates his understanding of the issue.  I believe that when he said the conduct of the “entrants” themselves constituted a “breach of the peace”[11], he was not defining the elements of the offence.

Evidence insufficient to prove likely breach of peace

43.In Chow Nok Hang Ribeiro PJ, citing an English case, pointed out that the essence of a breach of the peace was to be found in violence or threatened violence[12].  This statement cannot be reconciled with the magistrate’s finding that the ultimate purpose of the “entrants” was “to protest and make known their stance”[13].  There is no evidence whatsoever in the present case which proves that the “entrants” and D2 had the “intent to provoke a breach of the peace”.  This is the appellants’ position.

44.As to whether “a breach of the peace was likely to be caused” by the conduct of the “entrants” and D2, the appellants submit that the magistrate’s analysis was too sketchy (see paragraphs 25 to 27 of the Statement of Findings).  For example, the magistrate failed to notice the following:

(1) Those people, including the “entrants” and D2, who were collectively called the protesters, were expressing their opinions and chanting slogans most of the time, the contents of which were directed against the Legislative Council vacancy replacement mechanism, not the “audience” in the lecture hall.

(2) The protesters were surrounded by reporters, police officers and staff members most of the time.  These people behaved in a professional and restrained manner, as shown by the “live” videorecordings of what happened (Exhibit P4).  It has been held in decided cases that this category of people should generally be regarded as people who would not be provoked by protesters to resort to violence[14].

(3) It is true that as D1 approached the stage he was stopped by staff members or plainclothes police officers, and that subsequently a female protester who went up the stage was dragged away by staff members or plainclothes police officers.  However, contrary to what the magistrate said, these incidents do not serve to show that the people at the scene were so angry with the protesters that they would resort to violence.

(4) The forum was organized by the government, not by a political organization, and there is no evidence that any political group or body was present.

(5) The videorecordings show that, obeying announcements made by the organizer, members of the “audience” remained in their seats or where they were.  Many of them raised their mobile phones to take photographs.  They behaved more like people who were watching some boisterous activities, rather than people who were about to use violence.

(6) Although PW2 and PW10 left earlier than scheduled by reason of concerns over their personal safety, the oral evidence shows that they were scared by the conduct of the protesters, not by the conduct of other people at the scene.

Discussion

45.In my judgment, for reasons put forward by them, the appellants are correct in saying that there is no evidence that the “entrants” and D2 had the “intent to provoke a breach of the peace”.  As for the appellants’ analysis regarding “whereby a breach of the peace was likely to be caused”, I have the following observations to make.

46.It is natural for different people to hold different views on a political issue.  Those who cared to register for the forum, reserve seats and attend the forum in person were certainly very much concerned about the issue in question.  This is the first point.  The second point: the videorecordings show that before the “entrants” appeared, a number of the members of the “audience” had expressed their opinions, the contents of all of which were in favour of the vacancy replacement mechanism.  They attracted applauses and boos at the same time, and the people heckled each other from time to time.  These facts show that although the forum had no visible connections with any political party, the “audience” was divided into two camps, neither of which shied away from airing their views.  They were by no means “low-key” and mild as the appellants attempt to describe them to be.

47.It is true that while the government officers who presided over the forum stayed backstage, a considerable number of the “audience” remained where they were.  However, as pointed out by the appellants themselves, the protesters were surrounded by reporters, police officers and staff membersmost of the time, and furthermore, the lecture hall consisted of rows of fixed seats, thereby leaving limited room for people to move about.  Moreover, that PW2 and PW10 were scared was not entirely attributable to the protesters’ conduct.  PW10 said that behind her some people engaged in a war of words and some people and those on the stage were shouting at one another, and what she referred to was the “audience”[15].  PW2 testified that some members of the “audience” and the “entrants” abused each other.  What they worried about was that the overall situation might deteriorate.

48.To sum up, the fact is that at the material time not all members of the “audience” joined in the commotion, fought with one another or fought with the protesters. That notwithstanding, of the people present in the lecture hall, some (it is impossible to identify them all) did argue with other people at various spots, and it cannot be said that those arguments were not heated.  This state of affairs definitely had something to do with the arrival of the “entrants”.  If this, coupled with the fact that a female protester was rather forcibly dragged away, did not suffice[16], there was evidence,which the magistrate accepted, that D1 took the lead in dashing to the stage and when he was doing so, some agitated members of the “audience” pointed their fingers at him and swore at him, shoved and bumped him and restrained him by pulling him, and that in the end the police had to intervene[17]. At least, as far as D1 is concerned, this evidence was sufficient to support the finding that he “behaved in a disorderly manner” and “whereby a breach of the peace was likely to be caused”[18].  (The cases of D2 to D5, whose conduct was relatively mild, will be analyzed when I deal with the issue of joint enterprise).

49.Incoming to the above conclusion, I have not overlooked the requirement laid down in decided cases that the response made by the opposite party (that is, the “audience”) must be reasonable.  This point is emphasized by the appellants.  In Chow Nok Hang, Tang PJ made extensive reference to the English case law when he elaborated on this point:

“134. Section 17B(2) has its English equivalent in s5 of the Public Order Act of 1936, which provided ‘any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be occasioned, shall be guilty of offence.’ In Redmond-Bates v Director of Public Prosecutions [2000] HRLR 249, a decision of the English Divisional Court (Sedley LJ and Collins J) where the question was whether the conduct of the defendants was likely to provoke a breach of the peace. Although the Human Rights Act 1998 had not yet come into force, Sedley LJ considered the human rights dimension of such an offence. There, 3 women Christian fundamentalists preached from the steps of a cathedral and attracted a crowd some of whom were showing hostility. A policeman fearing a breach of the peace told the women to stop. They refused and were arrested for wilful obstruction of a police officer. The appellant was convicted. The issue on appeal was whether it was reasonable for the police officer, in the light of what he perceived, to believe that the appellant was about to cause a breach of the peace. Her appeal was allowed. At para 18, Sedley LJ said:

‘… The question for PC Tennant was whether there was a threat of violence and if so, from whom it was coming. If there was no real threat, no question of intervention for breach of the peace arose. If the appellant and her companions were (like the street preacher in Wise v Dunning) being so provocative that someone in the crowd, without behaving wholly unreasonably, might be moved to violence he was entitled to ask them to stop and to arrest them if they would not. If the threat of disorder or violence was coming from passers-by who were taking the opportunity to react so as to cause trouble (like the Salvation Army in Beatty v Gilbanks), then it was they and not the preachers who should be asked to desist and arrested if they would not.

…

20. … What Speaker’s Corner (where the law applies as fully as anywhere else) demonstrates is the tolerance which is both extended by the law to opinion of every kind and expected by the law in the conduct of those who disagree, even strongly, with what they hear…’

135. Earlier at para 6, Sedley LJ explained:

‘… In Beatty v Gilbanks (1882) 9 QBD 308, this Court (Field J and Cave J) held that a lawful Salvation Army march which attracted disorderly opposition and was therefore the occasion of a breach of the peace could not found a case of unlawful assembly against the leaders of the Salvation Army. Field J, accepting that a person is liable for the natural consequences of what he does, held nevertheless that the natural consequences of the lawful activity of the Salvation Army did not include the unlawful activities of others, even if the accused knew that others would react unlawfully.’

136. In Jordan v Burgoyne [1963] 2 QB 744, the English Court of Appeal held that, a speaker who used words which threatened, abused or insulted, had to take his audience as he found it and, if the words spoken to that audience were likely to provoke a breach of the peace, the person could be convicted under s5 of the Public Order Act, 1936.  Since the offence is concerned with the maintenance of public order, naturally, the likely reaction of the audience is highly relevant.  Even so, as the passage from the judgment of Sedley LJ in Redmond-Bate quoted at para 134 above shows, if the threat of disorder or violence was coming from those who were taking the opportunity to react so as to cause trouble, it was they and not the speaker who should be asked to desist and arrested if they would not.  In Jordan, Lord Parker CJ said, of the offending speech ‘I cannot myself, having read the speech, imagine any reasonable citizen, certainly one who was a Jew, not being provoked beyond endurance, and not only a Jew but a coloured man, and quite a number of people of this country who were told that they were merely tools of the Jews, and that they had fought in the war on the wrong side, and matters of that sort.’  Jordan recognized that people may be so provoked that they lost control of themselves, and that as a matter of common sense, persons with certain attributes might reasonably be expected to react more strongly than those without.  I have no doubt that a person who behaved in a manner which actually provoked persons present beyond reasonable endurance or might do so may be convicted under s17B(2).”

50.Applying the above principles to the present case, I find that the vacancy replacement mechanism certainly had its own supporters and that there were certainly people among the “audience” who took the same stance[19]. They were so enthusiastic about this topic that they were willing to take the trouble to reserve seats and attend the forum to express their views.  However, they were forced to temporarily discontinue what they were doing by the “entrants” who appeared at the forum in violation of the rules set by the organizer. Therefore, it was rational for them to be so provoked as to lose self-control and react with violence[20]. In contrast, although the ultimate purpose of the “entrants” in storming into the lecture hall was to protest and to make known their stance, their conduct did have a disruptive element, albeit not solely for the purpose of creating a disturbance. Moreover, clearly expecting to encounter people holding opposite views, the “entrants” nevertheless insisted on forcing their way into the lecture hall; what they did was therefore suggestive of the conduct of those who, to use the words of Sedley LJ, were taking the opportunity to cause trouble[21].

Magistrate wrongly applied doctrine of joint enterprise

51.This complaint is directed at both Charge (2) and Charge (3).  I shall deal with them together.

52.The appellants submit as follows: D1 and some men wearing Guy Fawkes masks were the first to barge into the lecture hall.  D2 was a member of the “audience”.  He had not taken part in breaking open the doors.  He just moved around and went up the stage to speak after the government officers went backstage and after adjournment of the forum was announced.  Nor was there evidence that D3 to D5 had broken open the doors.  The video recordings show that the three of them respectively arrived at the scene one minute, half a minute and two minutes later than D1.  At that time the forum was already suspended.  What followed was that most of the time D3 and D4 walked around and each chanted slogans. Apart from that, D3 and D5 spoke on the stage, while D4 stood on the stage to protest but did not speak.  The appellants argue that the conduct of D2 to D5 was relatively peaceful and that the magistrate had unjustifiably linked them up with the more radical “entrants” by invoking the doctrine of joint enterprise.

53.The relevant paragraphs in the Statement of Findings read as follows:

“Joint enterprise（共同行動）

31. It now remains for me to deal with the question of whether the prosecution is able to establish a connection between each defendant and the ‘entrants’ on the basis of a joint enterprise. This involves purely findings of fact. In considering this issue, I cannot overlook the aforesaid concept of being open-minded and liberal concepts. In assessing whether a person’s conduct formed part of a joint enterprise, the extent of his involvement must be considered on its own. Mere presence is certainly not enough, and the fact that he held the same political views as those of others and that they spoke with the same voice cannot give rise to any inference against or adverse to him. Another point to be mentioned is that, although [D3] to [D5] were not members of the ‘audience’ who had tickets for admission to the forum, there was no evidence that they banded together as a group from the outset. Therefore, their cases had to be looked at one by one with particular care. Joint enterprise does not require the person concerned to have taken part in the activities of the group from start to finish; the person could have joined or left in the course of those activities. What joint enterprise does require is a considerable degree of participation and also contribution in bringing about, facilitating or forming the common purpose of the group. As to what happened in the conference hall, apart from the testimonies of the witnesses, there are also the videorecordings. When there are both oral evidence and videorecordings of events in a particular period of time, the videorecordings are of course more vivid and accurate than the oral evidence. Another advantage of videorecordings is that they enable the court to watchan unbroken sequence of actions, the instantaneous responses by the people concerned and the surrounding circumstances, and this will greatly assist the court in making decisions.

32. After [D1] forcibly entered the conference hall, he did a series of acts including the following: amidst the disturbance and chaos created by others, he went up the stage and spoke, issued calls and gave instructions, and there were people who followed what he said. All these show that even if he was not the leader, at least he was one of the leaders. His involvement and role must have something to do with a joint enterprise.

33. The followingcan be said of [D2] to [D5]: After the ‘entrants’ entered [the hall], the situation became extraordinarily chaotic, so much so that the presiding officers evacuated and adjourned the forum for the time being. Subsequently, some people, including those who wore Guy Fawkes masks, forcibly occupied the stage and staged a protest. On the stage it was in complete disorder. Under these circumstances, people who on their own accordwent up the stage, stepped into the territory which they had forcibly occupied, received the microphone handed to them and spoke and did other similar acts, were by no means just nosy onlookers who crowded round a scene of bustling activities. These acts by themselves are sufficient to give rise to an irresistible inference that at least when these people went up the stage, they joined the group and took part in their activities.

34. [D2] was a member of the ‘audience’ who, being holder of a ticket, was admitted to the forum. There is no evidence that he acted from inside the hall in coordination with those outside the hall. However, he was inside the hall throughout. He witnessed and was aware of the whole course of events. After the forum was suspended, he did a succession of acts: he went up the stage and spoke, using a loudspeaker which the ‘entrants’ brought along; he kept moving around among the ‘entrants’; when he was speaking, some people wearing Guy Fawkes masks and some ‘entrants’ were beside him; when he was speaking, he raised his arm and made a hand gesture of protest; people wearing Guy Fawkes masks talked to him in whispers; he and [D1] spoke into each other’s ears; and once [D1] called on the people to leave, he immediately left the stage. In addition, he had close contact with the protesters. All these reinforce the only irresistible inference mentioned above, namely that he had joined in the group’s actions.

35. As for [D3], he moved around among the ‘entrants’; he went up the stage and spoke through the microphone; he passed the microphone to [D1], who was speaking by using a loudspeaker which had been brought along; he also handed the microphone to [D5] for her to use; and he and [D1] spoke into each other’s ears. These acts reinforce the only irresistible inference mentioned above, namely that he had joined the group.

36. When he was in front of the stage and when he was on the stage, [D4] raised his arm and made a hand gesture of protest and also shouted slogans together with [D1]; when [D1] was speaking on the stage, [D4]stood beside a table; he responded to the call of [D1] and left the stage together with [D1] and [D2]. All these acts reinforce the irresistible inference mentioned above, namely that he had joined the group.

37. As for [D5], when [D1] was speaking on the stage crowded with protesters, she stood beside [D1] and someone wearing a black Guy Fawkes mask.  The person wearing the black mask handed the microphone to [D3], who immediately passed it to [D5].  She spoke using the microphone. During her speech, she was accompanied by [D3] and [D1]talked to her in whispers.  All these facts reinforce the only irresistible inference mentioned above, namely that she had joined the group.”

Discussion

54.In Sze Kwan Lung & Others v HKSAR (2004) 7 HKCFAR 475, Bokhary PJ pointed out:

“33. ‘Joint enterprise’ is an expression used to denote the conduct of two or more persons who take part together in a course of criminal conduct …”

It is significant in that:

34. … Each participant is criminally liable for all the acts done in pursuance of the joint enterprise.  And whether or not he intended it, he will be criminally liable for any such act if it was of a type which he foresaw as a possible incident of the execution of the joint enterprise and he participated in the joint enterprise with such foresight …”

And it constitutes and proves the following:

“37. … I respectfully agree with the statement in Smith & Hogan: Criminal Law (10^th ed., 2002) at p.161 that

… once a common purpose to commit the offence in question is proved, there is no need to look further for evidence of assisting and encouraging. The act of combining to commit the offence satisfies these requirements. Frequently it will be acts of encouragement which provide the evidence of the common purpose.

…”

55.The question is: what was the common purpose in the present case?

56.Judging from its case, the prosecution’s answer to that question can only be what it called “stirring up chaos at the forum” (or purely causing disturbance), that is, acting in a disorderly manner for the purpose of preventing the transaction of the business for which the gathering was called together (section 17B(1)).  This is the minimum.  Whether or not a breach of the peace was likely to be caused by the act (section 17B(2)) involves an objective test.  It is only when the above definition of “stirring up chaos at the forum” is accepted that D2 to D5, whose acts were relatively moderate, can be found guilty of the offences on the basis of what other people did, pursuant to the doctrine of joint enterprise.  Nevertheless, can “stirring up chaos at the forum” be properly deduced as the common purpose of the appellants?  About this I harbour considerable doubts.

57.It was the observation of the magistrate[22] that the appellants knew one another.  This might well be the case, but the relevant evidence stopped at that.  On the contrary, in light of the arrangements made by the organizer for that evening, it was entirely possible that individual appellants (such as D3 to D5) only intended to initiate the demonstration after being admitted into the lecture hall under the “walk-in” category, or if this did not work out, to shout slogans outside the doors in protest.  This is the kind of tactics that protestors often adopt in various public consultation sessions or Legislative Council meetings.  If restraint was exercised (without, for example, storming the door, rushing up the stage, stirring up trouble; without putting up resistance when being asked to leave or refusing to leave), then the acts would not be unlawful and would be a far cry from “stirring up chaos at the forum”.

58.The magistrate of course also mentioned the possibility of joining in midway.  In other words, the appellants did in the end barge into the lecture hall, did they not? And they (including D2) did rush up the stage, did they not?  That is to say, they still joined in to lend support in their own way when they witnessed people breaking open the doors, forcibly occupying the stage, messing up the venue and even arguing with one another.  The problem with this approach is that it completely disregards the fact that the organizer had in fact announced that the forum was adjourned[23].  If individual appellants had wandered into the lecture hall without being obstructed when the doors had already been broken open by others, and had gone up the stage to protest when there was no officer-in-charge on the stage, then I really do not think the magistrate would have had enough evidence to find that they had acted with the purpose of “stirring up chaos at the forum”[24].

59.In my view, the doctrine of joint enterprise is not applicable to D2 to D5.  Nor did their own conduct fall within Charge (2) and Charge (3).  As his conduct per se was of the relevant nature, D1’s conviction on Charge (2) cannot be upheld (see paragraphs 23 to 24 above), but his conviction on Charge (3) is safe and satisfactory (see paragraphs 48 to 50 above).

Conclusion

60.In respect of Charge (3), the convictions of D2 to D5 are quashed, and D1’s conviction is upheld.

Charge(1)

61.D1 submits that the evidence given by the prosecution witnesses was not reliable.

Content

62.PW5 was the only prosecution witness in respect of Charge (1).  The magistrate was satisfied that she was able to see the conduct of D1 accurately through the glass door.  As to how she could have been able to capture all the relevant details while looking straight ahead, the magistrate had this to say in his Statement of Findings:

“16. … As regards [PW5] looking horizontally out of the glass door, the interpretation of such an act is that the human eyeball can move to different angles so that someone can “glance from the corner of the eye”.  Moreover, during a tug of strength, the body naturally moves without a conscious awareness of every movement, and a slight movement of the body or the neck will be sufficient to cover a wider field of vision.  Therefore, even if she was looking out horizontally, this was unlike directing the camera lens towards a fixed point, so that she was able to see the faces of the people standing on the planters.  This makes sense and is reasonable.  Coupled with the fact that [D1]’s face is familiar to the people of Hong Kong, there would have been no room for mistake or misunderstanding.”

63.Nevertheless, D1 submits that this conclusion was unsafe because PW5 disclosed the following in her evidence[25]: First, her eyes were 5 feet above the ground, whereas D1’s hand which was grabbing the handle of the glass door was 5 feet 8 inches above the ground. Second, during the tug of strength that lasted three minutes, PW5 tried her best to look horizontally to feign calmness so that her opponent would not sense that she was frightened.  Therefore, PW5 could not possibly have seen clearly the actions of D1’s hand.  Even if she did “glance from the corner of the eye” as the magistrate suggested, all she saw might just be the familiar face of D1, which had nothing to do with what his hands were doing.  On top of this, PW5 admitted under cross-examination that at the moment the snap was heard (that is, when the door handle loosened and came off), D1 was in fact at a “very far back” position.

Discussion

64.After the hearing, I ordered that an audio transcript of the trial be obtained and included in the appeal bundle.  The transcript indicates that PW5’s testimony was that only four persons directly wrestled with the glass door.  Two men were by the wall.  Over at the planter was a female.  Behind the female was D1.  D1 reached out his hand and pulled the door handle from behind the female over her head[26]. When the snap was heard, D1 withdrew his hand briefly from the door handle and then tugged it again after a few seconds.  This is what PW5 actually witnessed[27].  By this, she meant that she looked horizontally as she planned to do, and after she heard the snap she took a glimpse at where the sound came from (that is, she glimpsed upward) and saw D1 withdraw his hand from the door handle, and after a few seconds he resumed tugging the door until it was pulled open[28].  PW5 repeated what she said a number of times and remained unshaken no matter how D1 cross-examined her.  It is reasonable for the magistrate to believe her as he did.  There is nothing inherently improbable in her testimony, including her claim that she was able to see everything although she was looking horizontally.  I do not think that she was prejudiced by first impression as she recognized D1 or was mistaken in what she saw.  This conclusion would not be affected by PW5’s hesitance on other matters in her evidence.

Conclusion

65.D1’s conviction on Charge (1) is safe and satisfactory.

Charge(4)

66.It is argued that the magistrate simply did not have sufficient evidence to convict D1.

Content

67.In respect of this charge, the evidence of PW7 was the only valid evidence[29].  He said that he saw, through the small window on the wooden door, that D1 was amongst those storming the door.  But this was only “initially”.  He did not say whether he subsequently saw D1 “pulled the door and tried to prize open it”[30]. D1 submits that this constituted a doubt the benefit of which should have been given to him.

Discussion

68.The magistrate accepted PW7’s evidence that he saw D1 storm the door through the small window thereon, and no issue has been taken with this finding of fact.  The video clips showed that D1 was one of the “entrants” who first barged into the lecture hall.  This incident took place after the wooden door had been damaged (that is, opened).  Prior to that, D1 had forcibly opened the glass door with a view to moving on to the lecture hall.  This is the background to Charge (4) which in itself was sufficiently unfavourable to D1.

69.In the end, the magistrate relied on the doctrine of joint enterprise as the basis of conviction.  This can clearly be seen from paragraph 22 of the Statement of Findings (which shows that the doctrine was also applied to Charge (1)[31]):

“22. On the facts as I have found, in respect of the first count, [D1] did directly take part in pulling the handle of the glass door. And at that time, he shared the common intention of achieving the common purpose with the other people who were pulling the handle. In the end, the handle was pulled off. With a tug of strength like this, it would, whether subjectively or objectively speaking, have been apparent to anyone that the glass door would very likely be damaged. This was recklessness. As regards the fourth count, on the facts as I have found, including the fact that [D1] threw his body against the wooden door the moment before it was forcibly opened, there is no doubt that [D1]did directly take part in acting jointly with the others to force open the wooden door using violence. Sharing a common intention, they acted violently to forcibly slam, pry [the door] and tug the handle. I find that, from both subjective and objective points of view, it would have been apparent that the wooden door would very likely be damaged by these acts. This was recklessness.”

70.In my view, the analysis made by the magistrate is correct.  Whether or not D1 personally performed certain acts (such as prying the door with a screwdriver or a black, thin and elongated object), those acts could fully have been foreseen by those who wanted to break the door open, and therefore D1 was also liable for those acts.

Conclusion

71.D1’s conviction on Charge (4) is upheld.

Appeal against sentence

D1’s background

72.D1 has 13 previous criminal conviction records in respect of a total of 21 offences which he has committed since 1979.  I am told that they are all related to protests and demonstrations.  Two of those previous convictions are directly in respect of the offence under section 17B(2) of the POO, and for each of them D1 was sentenced to a fine (in 1996 and 1999).  The two most severe sentences he has received to date are 120 hours of community service (in 2009, for the offence of assaulting a police officer) and 2 weeks’ immediate imprisonment (in 2002, for the offence of contempt of the Legislative Council).

Mitigation

73.In his Statement of Findings, the magistrate referred to D1’s grounds of mitigation as follows:

“40. [D1] first of all apologized for having damaged the property, indicating he was willing to pay compensation. He said he felt strongly about the vacancy replacement mechanism which the Government introduced as a result of certain previous conduct of his. Moreover, although as a Legislative Councillor he had opposed strongly to the bill in the Council, it appeared that the proposal would be implemented no matter what. Only in the face of fierce opposition did the Government agree to hold two consultation sessions, but then the first session had been unfair. That was why he seized the opportunity presented by the last consultation session to ‘make a loud noise’. He further submitted that all he did at that time was express his views other than in the manner prescribed by the organizer; but under an unfair political system, people would act out of character. He also submitted that he had never thought of occupying the venue and had never expected the Secretary and the Director to leave the hall. All he did was seize the last opportunity and try his best to spread the voice of the opposition. He submitted that it was not an offence to attend the forum uninvited and that he merely wanted to enter the hall to express his demands peacefully. He had neither made any prior arrangement to meet up with anyone at the venue nor thought about using violence to compel others to do what he desired to do. He did not obstruct the staff members working there and left the venue when they asked him to. He did not gain any personal benefit from the incident and was only forced to act as there were no other choices. [D1] explained why the previous offences were committed.”

Sentencing at first instance

74.The magistrate then gave his reasons for sentence:

“43. In considering the sentence, I have considered the facts of the case and the submissions in mitigation. I agree with the defence that the vacancy replacement mechanism touches upon the basic rights of each and every Hong Kong citizen, that it has far-reaching effects, and that the dispute exposes deep-rooted social contradictions. I also appreciate the concerns of the ‘entrants’: as the consultation sessions were seriously few in number and lacked extensive coverage, the ‘entrants’ seized the last opportunity to enter the venue by force to express their demands. In particular, [D1] was naturally very concerned about the vacancy replacement mechanism which the Government introduced as a result of some of his previous acts. I also understand that while some social activists are relatively more hot-blooded and aggressive, their concerns are after all about social problems, and none of the defendants in the present case had any personal gain in the matter. In my view, the society is indeed blessed to have members of the public who voice their views in forums, elected legislators who bear the responsibility of expressing opinions on behalf of the public, and students (future masters of our society) who take interest in political affairs. Besides, in the Hong Kong society, which embraces the rule of law and freedom, the rights of freedom of speech and freedom of demonstration as guaranteed by the Basic Law and the Bill of Rights are held in high regard among the values upheld by the people of Hong Kong. For these reasons, in respect of offences committed in the course of exercising these rights, the sentencing court should, where possible, adopt a lenient approach and keep an open mind, without ignoring considerations of proportionality; nevertheless, there should of course be no compromise when personal safety is at stake (emphasis added). In passing sentence, it is necessary not only to give effect to the spirit of the fundamental rights enshrined in the law, but also to embody the openness, freedom and democratic values of Hong Kong.

44. Whether the consultation exercise underlying the forum on the material day was genuine or (as the defence contends) fake, members of the ‘audience’ at the forum were entitled to express their own views and listen to the views expressed by others without interference. This was in exercise of their basic rights. But the fact is that the chaos at the venue had become uncontrollable and abhorrent. This had not only caused suspension of the forum, thereby affecting the exercise by others of their basic rights, but had also caused the ‘audience’ to worry about their own safety, fear that they would also suffer although they were innocent, and even decide to leave early. The circumstances of the offences were serious in that they rendered it impossible for others to exercise their basic rights free from interference and concerns about personal safety. Apart from trampling on the exercise of basic rights by the ‘audience’ on that particular occasion, the offences would also bring about far-reaching adverse effects because, before members of the public consider whether or not to take part in similar public activities, they would have to take into account their personal safety and assess the risks involved, and these considerations might even deter them from participating in those activities. This would be a step backward for our society.

45. In respect of the first and fourth counts, although the value of the property damaged was not very high and the extent of the damage not great, the present case is different from the usual cases of criminal damage that I have dealt with. When the crowd stormed the glass door and the wooden door, there were staff members on the other side of the doors trying to resist. In those circumstances which involved a tug of strength between the two sides, the paramount concern was personal safety (emphasis added) as there is nothing more important than personal safety, be it that of the staff members or of the ‘entrants’, which were equally important. Think about this: in the circumstances where those who pulled and tugged were highly agitated, what would happen if someone fell on the passageway when the doors were pulled open and people rushed up from behind, causing people to step on one another? The consequences would be unimaginable. These potentially serious consequences are not nit-picking but obvious. It follows that the ‘entrants’ were acting in reckless disregard of others’ safety and a severe sentence has to be imposed. A custodial sentence is in fact appropriate.

46. In determining the starting points, I have taken into account the unique circumstances of the case.  I have also made appropriate downward adjustments to the starting points.  After careful consideration, I adopt a starting point of 2 months for both the first and the fourth counts of criminal damage.  As regards the second and third counts, I take the view that a short-term custodial sentence is appropriate and can reflect the gravity of the case.  D1’s culpability has to be distinguished from that of the other defendants: [D1] started to participate in the matter at a very early stage and also closely involved himself in it by, for example, issuing calls and instructions; even if he was not the ringleader, he was at least one of the leaders.  The starting point for [D1] in respect of both the second and third counts is set at 5 weeks.  The starting point for all the other defendants in respect of related counts is set at 3 weeks.  I do not see any factor in the case which justifies any discount to sentence.  I order that all custodial sentences to be served concurrently and immediately, and also order [D1] to pay to the HKSAR Government compensation of $4,150 for the damage caused.”

Grounds of appeal

75.It is contended that the matter did not involve any personal interest.  D1 merely aimed to express opinions on the vacancy replacement mechanism.  As a matter of fact, the Government did in the end withdraw the proposal in question due to the strong opposition voiced in the society.  It can therefore be seen that D1’s actions were not aimless or groundless.  It is also contended that D1 acted with restraint and the damage caused was minor, and therefore the sentences imposed are manifestly excessive.

Conclusion

76.As I have pointed out above, it was perfectly normal for there to be views both for and against the issues being discussed at the forum.  And it could well be expected that people who took the trouble to register beforehand and attend the forum in person had a stronger desire to express their views.  Against this background, D1, who had not registered (or was unable to successfully register), insisted on barging into the lecture hall where entry was restricted.  Although his ultimate purpose was to express his own views, he did give the impression of intentionally taking the opportunity to stir up trouble, and he acted in such a way as to cause disturbance[32], resulting in actual breach of the peace[33].  This is a significant aggravating factor.  Furthermore, the magistrate was indeed justified in emphasizing the point that it was dangerous for D1 and others to storm the doors, although that point is to a certain extent open to discussion.  The court will not condone any act of charging which involves actual violence.  In light of these two points as well as D1’s two previous convictions for the section 17B(2) offence, an immediate custodial sentence against him is appropriate and inevitable.  As for the term of imprisonment, having assessed all relevant factors, I am of the view that the term of 2 months imposed by the magistrate is manifestly excessive.  In my view, the terms of imprisonment for Charges (1), (3) and (4) can all be reduced to 4 weeks, and they are to run concurrently as the offences stemmed from the same incident.

Decision

77.The appeals of D2 to D5 against convictions are allowed and their convictions are quashed.  It is not necessary to deal with their appeals against sentences.

78.D1’s appeal against convictions is allowed in part, and his conviction on Charge (2) is quashed and the sentence therefor set aside.  His appeal against sentence is allowed, and the sentences for Charges (1), (3) and (4) are all varied to 4 weeks’ immediate imprisonment, to be served concurrently.  The order for compensation remains unchanged.

Mr William Tam, Deputy Director of Public Prosecutions and Mr Cliff Ip, Public Prosecutor of the Department of Justice, for the HKSAR/respondent.

Mr Martin Lee SC and Mr Carter Chim, instructed by Ho Tse Wai, Philip Li & Partners, for the 1^st appellant.

Mr Robert Pang SC and Mr Ryan Law, instructed by  Lam and Lai, for the 2^nd appellant.

Mr Martin Lee SC and Ms Linda Wong, instructed by Ho Tse Wai, Philip Li & Partners, for the 3^rd and 5^th appellants.

Mr Osmand Lam and Ms Rachel Wong, instructed by Ho Tse Wai, Philip Li & Partners, for the 4^th appellant.

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

[1]  In paragraph 17 of his Statement of Findings, the magistrate explained that having had regard to the angle and distance, he was concerned whether PW6 “witnessed the whole incident or only saw part of it intermittently, or whether he had inadvertently inferred that there was connection between these intermittently-witnessed images”, such that “the accuracy of his evidence is undermined”.

[2] This case originated from a prize-presenting ceremony of the MTR. While a guest was delivering a speech, the first appellant rushed onto the stage and scattered “hell money”, and then peacefully allowed himself to be taken away by the organizer, just that he shouted slogans on the way of leaving.  Thereafter, however, the second appellant dashed towards the front of the guest and snatched away the microphone before he was subdued.  The Court of Final Appeal found that, disorderly as it was, the conduct of the two appellants had not hindered the resumption of the ceremony about one minute after the incident, and therefore did not amount to “preventing”; and that there was no evidence in the case to prove that the appellants’ conduct was “for the purpose of” preventing the ceremony from going on.

[3] In other words, the forum had been suspended for about half an hour in total.

[4] In Chow Nok Hang, in paragraph 56 of the judgment, Ribeiro PJ said, “I can see no basis for inferring that [the appellants] must have intended to prevent the ceremony from transacting its intended business, the obvious inference being that they merely wanted to interrupt it to dramatise their protest.”

[5] This may suggest that the organizer must as soon as possible ask the protestors to leave.  It does not mean violence had to be used.  The relevant message could be conveyed continuously by broadcasting.  If the presiding officers merely adjourned the meeting, stayed backstage and spoke in euphemistic terms, there would be room for arguing whether the protestors were still “preventing” the gathering.

[6] The case involved section 5 of the Public Order Act 1936: In a public place use threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be occasioned.  The judgment was given by the Quarter Sessions.

[7] Paragraphs 61-71 of the judgment.

[8] At 304I.  This is only one of the judgments.  In that case, various elements of the offence were set out conjunctively in the charge, and the then Divisional Court, citing cases such as R v Clow [1965] 1 QB 598 in support, considered this approach desirable.

[9] In that case the defendant dashed into the report room of Wanchai Police Station, swore and shouted abusively at the police officers, and caused fear in a WPC and some members of the public who were waiting to make a report to the police.  He was also charged under section 17B(2) of the POO.

[10] The defendant in that case was alleged to have sneakily taken upskirt photos and was also charged with the offence under section 17B(2) of the POO.

[11] See end of paragraph 27 of the Statement of Findings (quoted in paragraph 37 above).

[12] At paragraph 78 of the judgment.

[13] See beginning of paragraph 30 of the Statement of Findings (quoted in paragraph 19 above).

[14] See Chow Nok Hang, at paragraph 178 of the judgment, per Tang PJ.

[15] Page 584C to page 588L of the appeal bundle.

[16] In Chow Nok Hang, Chan ACJ said (paragraph 15 of the judgment): “I do not think one should rule out the possibility that even a trained officer might in some situations be provoked to react with violence to the disorderly conduct.”

[17] This evidence came from PW9 (a plainclothes police officer).  The appellants did not take issue with its reliability.  At the hearing before me, D1 even claimed that he had been assaulted.

[18] The English case Jordan v Burgoyne [1963] 2 QB 744 is also concerned with section 5 of the Public Order Act 1936.  In his judgment Lord Parker CJ said (at 749) that as long as part of the audience apart from the defendant was likely to resort to violence (the key word is “part”), then the defendant could be convicted: “… if words are used which threaten, abuse or insult … and if those words to that audience or that part of the audience are likely to provoke a breach of the peace, then the speaker is guilty of an offence.”

[19] This is a matter of common sense, although it can also be proved by “live” video recordings of what happened.

[20] This did not depend on whether the “audience” was aware that the “entrants” had forced open the doors.  The conduct of some of the “entrants” in the lecture hall was per se provocative enough. Had the “audience” known that the doors had been forced open, they would even more likely have resorted to violence.

[21] At trial the defence alleged that the organizer made less than satisfactory arrangements and even deliberately prevented those waiting in the queue-up zone from entering the hall, so that the “entrants” had to charge at the doors.  However, there was no solid evidence of this.  And as explained in footnote 20, whether or not the “entrants” had forced open the doors is not a crucial factor in determining whether the appellants are guilty.

[22] It was alleged that they acted in coordination and whispered in each other’s ears.

[23] See paragraphs 24 and 25 and footnote 5 above.

[24] As a matter of fact, whether or not the forum was suspended is more relevant to Charge (2) as the answer to that question can help decide whether or not the appellants were “preventing” the transaction of the business of the gathering. Conversely, even if the forum was suspended, the conduct by those collectively referred to as protestors might have constituted the offence under Charge (3). The question is, on the evidence, can the court be sure that the more moderate persons were joining hands with the more aggressive ones, or that the more moderate persons, seeing that there was no one in charge, staged the protest in their own way?  It should also be noted that when D3 to D5 went up the stage, the atmosphere in the lecture hall was not as tense as before, and the video clips do not show that anyone was at that time in confrontation with the “audience”.

[25] See the summary set out in paragraph 7 of the Statement of Findings (quoted in paragraph 7 above).

[26] See page 483 M to page 484 O of the appeal bundle.

[27] See page 492 J to page 493 O of the appeal bundle.

[28] See page 502 C to page 504 L of the appeal bundle.

[29] PW6’s evidence was very helpful in proving Charge (4) but was not accepted by the magistrate. See paragraph 9 and footnote 1 above.

[30] See the summary set out in paragraph 9 of the Statement of Findings (quoted in paragraph 7 above).

[31] The prosecution confirmed that they would rely on this doctrine when PW5 was giving evidence.  They pointed out that the count listed D1 “together with other persons unknown” as people who jointly committed the offence.  At that time, D1 indicated that he understood.  See page 491 F-J of the appeal bundle.

[32] In fact, seats had been reserved for Legislative and District Councillors who could not register in time (see paragraph 3 above) and, as instructed by his supervisor, PW1 had invited D1, who was waiting at the “queue-up zone”, to take a seat in the hall, but D1 turned down the invitation for the reason that he did not want to enjoy any privilege (see paragraph 3 of the Statement of Findings, quoted in paragraph 7 above). In the end, he chose to storm the doors and rush up the stage.

[33] D1 was pushed, hit and pulled by the “audience” when he rushed up the stage (see paragraph 48 above).  At the hearing before me, he even claimed that he had been assaulted (see footnote 17 above).