HKSAR v. FONG KWOK SHAN AND ANOTHER

[English Translation – 英譯本]

HCMA 666/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 666 OF 2015

(ON APPEAL FROM ESCC 3792/2014)

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JUDGMENT

1.  Three defendants stood trial in this case. The first appellant was the first defendant (D1) and the second appellant was the third defendant (D3). D1 and one other were jointly charged with two counts of contravening an administrative instruction of the Legislative Council[1]. D3 was charged with one count of obstructing an officer of the Legislative Council in the execution of duty[2].

2.  The duo was brought before the Eastern Magistrates’ Court where they pleaded not guilty[3]. The Magistrate found them both guilty after trial. They appealed against the convictions.

Prosecution facts

3.  This case concerned two incidents, both of which took place at a conference room of the Legislative Council. At that time, a meeting of the Public Works Subcommittee of the Legislative Council was taking place. At the time in question, the defendants were observing the proceedings of the meeting at the public gallery. According to the Statement of Findings of the Magistrate, what happened was[4]:

In respect of the first charge against D1 and the second charge against D3

On 7^th May 2014, D1 displayed the T-shirt she wore with the characters “保衛將軍澳” (Defend Tseng Kwan O) printed on it and passed a message with a “Swastika” in it to the second defendant to display at the glass curtain wall at the public gallery of the Legislative Council Chamber. When PW1, a security guard, went up to pull this message, D3 pulled the hand/arm of PW1 while the second defendant also pressed onto the message, such that PW1 only tore off a corner of the message.

D1 was alleged to have displayed sign and D3 obstructed an officer.

In respect of the third charge against D1

On 13^th May 2014, D1 and the second defendant behaved noisily at the scene. They refused to leave and remained noisy after being warned by security guard/s.

D1 was alleged to have been disorderly.

Defence case

4.  All defendants elected to remain silent at the trial. The main issues the defence put forth were as follows:

(1)  The prosecution failed to prove the charges;

(2)  The charges were unconstitutional.

Prosecution evidence

5.  Evidence from the prosecution during the trial includes:

(1)  The testimonies of two witnesses, both security guards of the Legislative Council who were executing their duties at the time;

(2)  Two sets of admitted facts;

(3)  Clips of video recordings of the two incidents, and photos extracted from said clips.

(4)  Two news clips downloaded from the internet.

6.  The magistrate outlined the evidence of the two prosecution witnesses as follows[5]:

“Madam Li Yuk-wah (PW1) – Regarding the first charge against D1 and the second charge against D3:

On the 7^th May 2014, at approximately 10:38 a.m., she was on duty at the public gallery of conference room number 1 when she saw D1 take her jacket off, and under her jacket was a T-shirt with the words“Defend Tseung Kwan O” written on it. When PW1 tried to go up to hold down the hand/s of D1, a Mr. Lui (transliteration) gave a piece of paper to D1, which D1 passed to the second defendant, and the second defendant displayed that piece of paper at the glass curtain wall at the public gallery in front. The piece of paper had a “Swastika”on it. She held her hand/s high to pull this sign. During this time, she felt someone pull her right hand forcefully. She looked down and saw D3 pulling her right hand, so she shook off D3's hand. PW1 received order from the walkie-talkie that the message was to be torn off, so she pulled the message forcefully, but the second defendant pressed hard onto the message, so PW1 could only tear off a corner of it. She felt numb pain on her right hand that was red and swollen. And by then, D1 had already taken her jacket off. The Chairman announced that the meeting be suspended.

Mr. Liu Kam Wo(transliteration) (PW2) –in respect of all the charges:

In respect of the first charge against D1 and the second charge against D3

On the morning of 7^th May 2014, he arrived at conference room number 1 of the Legislative Council and saw a total of about 10 people; amongst them were D1, the second defendant and other people. They behaved noisily and the security staff was asking them to be quiet. At 10:38a.m., D1 took off her jacket, showing a T-shirt under it which had the words “Defend Tsueng Kwan O” printed on it. PW1 and another security guard went forth to stop D1. The second defendant went forth to argue with PW1 and D3 stood up and made noise. At this moment, a man took out a message, which D1 received from him and then passed it to the second defendant. The second defendant then held the message up high and pressed it against the glass wall in front of him. This act risked damaging the glass and so PW2 and his colleague/s went forth to stop it. The Chairman then announced that due to the nuisance caused by the aforementioned people, he asked the security staff to escort them out of the conference room. At this moment, D3 joined in. He stopped the security guard/s from stopping the actions of D1 and the second defendant. Amidst the confusion, the message was torn apart, but the security guard/s did not succeed in escorting D1, D3 and the second defendant, amongst others, out of the conference room. The Chairman then announced that the meeting was adjourned due to the nuisance caused by people.

In respect of the third charge against D1

At 9:25 a.m. on 13^th May 2014, PW2 arrived at the Conference Room of the Legislative Council. His colleagues pointed out to him a woman sitting on seat B24 who had behaved noisily earlier and the Chairman had already ordered that all noisy people should leave. So he said to that woman, “Please leave” because the Chairman had asked noisy people to leave. The second defendant joined in, saying “Don't mess with my folk, she is sick”. A female security guard replied: If she is not well, security guards may call an ambulance to take the patient to a doctor. D1 then said, “Being sick does not necessarily mean having to leave.” Afterwards, some people were loud and noisy, and “boo” sounds were heard. After a few minutes, the superior of PW2 joined in to persuade the aforementioned woman to leave, which she ignored. Then, D1, D3 and the second defendant linked their hands and invited others to link hands too and not to leave. The superior instructed him to warn D1, D3 and the second defendant amongst others. So he took out exhibit P13 and read out the contents of section 17(c), Chapter 382 of the Laws of Hong Kong Law. He pointed out that because the noisy people were loud, his voice was drowned out. When PW2 was reading out the warning, he forgot whether it was D1 or the second defendant who said, “You want to intimidate me (?)”. Since their hands were still linked and they kept making noise, he then used an amplifier to read out the warning once more, but they were still making noise. He then said, everyone may leave of their own accord, but the security guards reserve all rights to pursue the matter. Those people were still behaving noisily, and Councillor Gary Fan announced that the meeting would be moved to conference room number 3. Since he did not hear the Councillor or the Chairman speak, he believed that the meeting had stopped. Because there were orders stating that the Chairman forbade noisy people from entering the conference room, he and his colleagues stopped D1, D3 and the second defendant amongst others from entering conference room number 3. PW2 confirmed that security staff should maintain the smooth operation of meetings, and ensure that the public at the public gallery follow the Administrative Instructions of Chapter 382A of the Laws of Hong Kong Law. If rowdiness occurred, the security staff would first give advice, and only until the Chairman had given relevant orders would security guards escort those who disobeyed to leave. When D1 and the second defendant were behaving noisily, they were all “loud”, but D3 was “not as loud”. If the Chamber beneath the public gallery was in the middle of a meeting, it would no doubt be affected.

8. PW2 also pointed out, the Administrative Instructions were displayed on the entrance to each room of the Legislative Council. For example, they were displayed on the public entrance of conference room number 1. He also confirmed that members of the public might not switch seats. If security guards discovered switching of seats, they would ask the people in question to switch back to the seats they were originally assigned. He was sure that D1 and the second defendant behaved noisily on 13^th May 2014.

Findings of the Magistrate

7.  The magistrate made the following findings of facts:

First Charge (D1)

On 7^th May 2014, D1 displayed the “Defend Tseung Kwan O” T-shirt that she wore in the public gallery of the Legislative Council Chamber and also handed a piece of paper with a “swastika” on it to the second defendant, which was then displayed on the glass curtain wall of the public gallery by the second defendant. The defence had not challenged the course of the events. The court finds that the prosecution's evidence supports the allegation in charge (1) that D1 and the second defendant had displayed sign and message.

Second charge (D3)

The second defendant displayed a message with the “swastika” on it on the glass curtain wall of the public gallery of the Legislative Council. PW1 raised her hands to pull this message with force. PW1 was clearly executing her duties and D3 pulled the right hand of the first witness in order that PW1 would shake off D3’s hand to break free from the grip of the second defendant. And PW1 had also received the order to tear away the message. PW1 pulled that message with force but it was being pressed down with force by the second defendant. Afterwards, PW1 felt numb pain in her right hand which was also red and swollen. PW1 was a security assistant of the area in question which did not permit the display of sign and message. So there was basis for PW1 to stop the second defendant from displaying sign or message. What D3 did obstructed the first witness from stopping the second defendant from displaying a sign or message. In other words, these actions were obstructing the first witness who was an officer of the Legislative Council in the course of executing her duties. Therefore, the prosecution has adduced sufficient factual evidence to support the second charge.

The third charge: failing to behave in an orderly manner (D1)

On the morning of 13^th May 2014, the second witness also saw the first, second and third defendants linking hands and inviting others to link hands. The second witness had already warned the trio, and read out the contents of section 17(c), Cap 382 of the Ordinance. Due to the loud noise of the rowdiness at the scene, he later read out the warning with an amplifier once more, but the three defendants were still behaving in a noisy manner. Councillor Gary Fan announced that the meeting had to be moved to conference room number 3. The first and second defendants were “loud”, while the third defendant was relatively softer. The second witness confirmed that if a meeting was in session beneath the public gallery, it would no doubt be affected. The second witness confirmed that the first and second defendants were both noisy. The second witness' testimony was borne out by exhibits P14 and P16. The Chairman of the meeting had made repeated warnings, and asked the staff to escort the noisy people out of the conference room. The court takes the view that the prosecution had called sufficient factual evidence to prove the elements of the third offence, and that the first and second defendants did fail to behave in an orderly manner.[6]

8.  The magistrate also found that all the relevant charges were constitutional.

9.  Therefore, the magistrate found the two appellants guilty of the relevant charges.

Grounds of appeal

D1

10.  During appeal, D1 was represented by Mr. Harrison Cheung of Counsel, the grounds of appeal he advanced may be summarized briefly as follows:

(1)  In respect of the first charge, the magistrate erred in finding that section 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Persons[7] (“Administrative Instructions”) was constitutional;

(2)  In respect of the third charge, the conviction was unsafe because:

(1)  The prosecution failed to point out what specifically D1 had done to support the allegation that she had “failed to behave in an orderly manner”. A failure to expressly point out how she “failed to behave in an orderly manner” is a failure to meet the “prescribed by law” requirement.

(2)  “Failing to behave in an orderly manner” could be a very wide concept which was in conflict with the rights protected by the Basic Law and the Bill of Rights, including the right to freedom of speech, freedom of assembly and freedom of peaceful demonstrations, and, if failing to behave in an orderly manner is to be criminalised, it cannot pass the “necessary” and “proportionate” tests, especially when the Legislative Council was a place that permitted expression through speech.

(3)  The Magistrate had not considered the legal principles laid down by the Court of Final Appeal in Leung Kwok Hung v HKSAR[8].

(4)  In any event, the evidence did not support the charges.

D3

11.  D3 was represented by Mr. Leo Wong of Counsel. Mr Wong pointed out that the conviction in the second charge was unsafe, because:

(1)  Evidence did not support the allegation that D3 was obstructing PW1 in executing her duties;

(2)  If the relevant Administrative Instruction is unconstitutional, then PW1 was not in the due execution of her duties.

Discussion and considerations

12.  I will first deal with the first and the third charges that D1 was concerned with before proceeding to deal with the second charge that concerned D3.

The first charge

13.  Mr Cheung submitted that as far as the first charge was concerned, there was no dispute on the facts.  The only issue was a question of law.

14.  Mr Cheung complained that the magistrate was not comprehensive in his exploration of the issue of whether the law was constitutional, and neglected the principle of how the matter should be considered as laid down in R(Aguilar Quila) v Home Secretary.[9] Besides, he had applied wrong point of law and did not make clear why a full ban on all signs was necessary, appropriate and reasonable.

15.  Mr Cheung pointed out that section 12(1) of the Administrative Instructions was unconstitutional and that the magistrate was wrong to find that it was constitutional.  He put forth 3 things to support this ground of appeal that he advanced:

(1)  Section 12(1) of the Administrative Instructions was a prohibition that was unreasonable, unnecessary and disproportionate[10]. Not only was it in conflict with the rights enshrined in the Basic Law and the Bill of Rights but also imposed a blanket prohibition across all relevant prohibitions regardless of the content of the message and whether or not it would affect the effective operation of the Legislative Council. In addition, there was no provision to relax the prohibition.

(2)  The magistrate did not analyse how this Administrative Instruction was prescribed by law and was necessary for:

(a)  espect of the rights or reputation of others; or

(b)  the protection of national security or of public property, or of public health or morals.

(3)  The magistrate did not consider some of the factors for consideration that the Court of Final Appeal discussed in HKSAR v Chow Nok Hang.

16.  The main points advanced by Mr Li Hay Chit, Senior Public Prosecutor, representing the Respondent, in his submissions were:

(1)  D1 in fact had no right to exercise the rights to freedom of speech and freedom of demonstration within the precincts of the Legislative Council Chamber;

(2)  Even if she had, section 12(1) of the Administrative Instructions was not unconstitutional;

(3)  Although meetings of Legislative Council were open to public, members of the public were only permitted to enter the public gallery. The right to enter or remain within the precincts of the Legislative Council Chamber was regulated by the resolutions of the Legislative Council;

(4)  The aim of the regulation was to “maintain the security of the precincts of the Chamber, ensure the proper behaviour and decorum of persons therein and for other administrative purposes”[11];

(5)  Generally speaking, the Legislative Council Building and the precincts of the Chamber were not open to public, and even if they were, it was for specific purposes, such as for observing the proceedings of the meetings and not for conducting demonstrations;

(6)  When the court interpreted and applied the articles of the Basic Law, it would have regard to the separation of powers principle. Under this principle, the court recognized that the legislative branch possessed solely the power to govern its own affairs, the court did not intervene under normal circumstances[12];

(7)  The overall measures taken by the Legislative Council had already balanced the rights of all parties, and the prohibition imposed by section 12(1) of the Administrative Instructions would not stop members of the public from effectively exercising their constitutional rights, especially when the rights to freedom of speech and demonstration were not absolute rights.

17.  With regards to the finding by the magistrate on the constitutional issue, whether the magistrate's analysis was incorrect or inadequate as complained of by the appellant was not the crux of the matter. This is because the magistracy appeals are conducted in the manner of a retrial, and only legal issues and not the assessment the magistrate made on the evidence were involved. Therefore I may completely reconsider this legal issue and make a finding. Mr Cheung had no objection to this.

18.According to Secretary for Justice v Latker[13], when the issue in question is whether the criminal charges are unconstitutional, the court should consider the following matters one by one:

(1)  Whether the relevant offence engages any constitutional right;

(2)  If it does, whether the rights have been denied or infringed;

(3)  If they have, whether the prosecution has proven that such denial or infringement can be justified;

(4)  Where the prosecution cannot show such justification, the relevant offence should be held unconstitutional and therefore void.

19.  The prosecution alleged that D1 was in breach of section 12(1) of the Administrative Instructions. The section states as follows:

“No person shall, in a press or public gallery, display any sign, message or banner.”

20.  The Basic Law and the Bill of Rights guarantee the following rights:

“Article 27 of the Basic Law：

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.

Article 16 of the Bill of Rights Ordinance[14]：

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary-

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

21.  Mr Cheung submitted that as section 12(1) of the Administrative Instructions not only conflicted with the aforementioned rights but also contained no provision to relax the prohibition, it was a prohibition that was not reasonable, not necessary （必須）and not proportionate, and was in violation of the principles on how the matter should be considered as laid down in R(Aguilar Quila) v Home Secretary.

22.  On the question of whether it was necessary（必須）that Mr Cheung submitted, the Chinese characters used in the major decided cases in Hong Kong are 必需（necessary）, and I will continue to use these oft-used Chinese characters and make considerations based on their meanings.

23.  In the case of Leung Kwok Hung v HKSAR[15] that Mr Cheung cited, the Court of Final Appeal pointed out: It is well established in our jurisprudence that the courts must give such a fundamental right a generous interpretation so as to give individuals its full measure.  On the other hand, restrictions on such a right must be narrowly interpreted.

24.  Mr Cheung submitted that the Court of Final Appeal pointed out in Chow Nok Hang: freedom of expression would be meaningless if it can only take place in private or away from persons who may find the views expressed annoying or offensive.[16] The Court of Final Appeal further pointed out that even if the expression was annoying, if public order or interest of other people was not affected, reasonable members of the public in a democracy should be able to tolerate the offence done to their right.[17]

25.  Mr Li submitted that members of the public in fact did not have the right to exercise the rights to freedom of speech and of demonstration within the precincts of the Legislative Council Chamber.

26.  He pointed out that the Legislative Council Building was unique; it was a place where the Legislative Council carried out its duties. According to section 8 of the Legislative Council (Power and Privileges) Ordinance (“the Ordinance”)[18], although the sittings of the Council shall be open to the public, the right of the members of the public to enter the precincts of the Chamber shall be subject to the Rules of Procedures or any relevant resolution of the Council limiting the enjoyment of such rights, and the President may issue such administrative instructions as he may deem necessary to regulate the conduct of the members of the public who have entered. And according to section 2 of the Administrative Instructions, members of public enter the public gallery only on a “may-be-admitted” basis.

27.  Mr Li referred the Court to HKSAR v Au Kwok Kuen[19] and Secretary for Justice v Leung Kwok Wah[20] to support his argument.

28.  In Au Kwok Kuen, A Cheung J, as he then was, pointed out that on the principle that private residential premises were not to be arbitrarily or unlawfully intruded into, the constitutional provisions that protected the right to freedom of expression did not automatically create the right to enter such premises on the said ground.

29.  In Leung Kwok Wah, Lam J, as he then was, made the following observations:

“48. In HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, A Cheung J (as he then was) held that the right of peaceful assembly and the right to freedom of expression stopped at the boundary of private residential property belonging to others in the absence of any permission to enter. His Lordship came to that conclusion after a careful and detail analysis of the other provisions in the Basic Law, the HKBoR and the duty and power of the police and the relevant overseas jurisprudence on the right to demonstrate. His Lordship left open the question as to how section 18 would be applied in the context of an assembly or demonstration which took place at premises of a public nature as it was not necessary to address the point on the facts of that case. But what His Lordship said at para 52 may have a wider application,

“... In my view, in Hong Kong, notwithstanding the acknowledged importance of the right of peaceful assembly and the right to freedom of expression, neither the provisions in the Basic Law nor those in the Hong Kong Bill of Rights bestow any freedom of forum for the exercise of those rights[21]....”

30.  Lam J took the view that:

“66.... whether a person is entitled to demonstrate at a place without the permission of its owner does not simply depend on a dichotomy between private premises and public premises. There is a wide spectrum and even in premises which can be said to have a public character within the spectrum there is no absolute right to enter for the purpose of demonstration. Even for premises with a public character, one must consider whether it is a premises generally open to the public and if there are restrictions, what those restrictions are, and what are the objectives for those restrictions. The right of a property owner, including governmental agencies, to set conditions for the use of his property is an exercise of his proprietary right. As underscored in Au Kwok Kuen, this right is constitutionally protected although in the case of a government premises generally open to the public, the restriction may have to be justified as necessary and proportionate in order to be consistent with the government’s positive duty to enable lawful assemblies to take place peacefully.

67. In the case of a government premises not generally open to the public, there is no right of access to demonstrate at such premises. The positive duty on the part of the government is a duty to enable lawful assemblies to take place. I can find nothing in the judgment of the Court of Final Appeal in Leung Kwok Hung v HKSAR, supra which remotely suggests that such duty can be elided into a duty to open all government premises for demonstration. Protesters who entered into premises not generally open to the public are not exercising their right of assembly lawfully.”[22]

31.Mr Cheung disagreed with Mr Li’s argument that members of the public did not have the right to enter the Legislative Council Building to demonstrate as it was not a governmentpremises that was open to the public. He further argued that even if there was no right to enter for demonstrations, the right to freedom of expression still could not be ruled out.

32.As Lam J pointed out, there is a wide spectrum of types and characters of premises. With regards to the Legislative Council Building, it is on the one hand not a government premises that is usually open to the public, and on the other hand, because meetings of the Legislative Council should be conducted publicly, the relevant departments have the responsibilities to put in place reasonable and appropriate measures to allow members of the public to enter so that the meetings can be conducted publicly. However, I take the view that it does not mean there should be no restrictions at all when members of the public are allowed to enter; instead there should be balancing measures to ensure that not only can the meetings of the Legislative Council be free from interference or undue influence, but the personal and property safety of the people who are there to observe the proceedings of the meetings is protected and that they can observe the proceedings without being interfered with.

33.During the appeal, there was discussion on what a demonstration was. Generally speaking, demonstration involves some kinds of behaviour of expressing views. Therefore, freedom of expression covers wider scope than freedom of demonstration. It includes freedom of speech and freedom of demonstration. I will make considerations based on how the relevant regulations are involved in restricting the freedom in freedom of expression.

34.In considering the matter, I have regard to the following:

(1)  The Court of Final Appeal held in HKSAR v Ng Kung Siu[23] that freedom of speech and expression are not absolute rights. This is borne out by article 16(3) of the Bill of Rights Ordinance[24]. Besides, article 39 of the Basic Law states that the rights and freedom enjoyed by the Hong Kong residents shall be restricted as prescribed by law.

(2)  Neither the Basic Law nor the Bill of Rights gives the right to exercise the right to freedom of expression in all places. (See HKSAR v Au Kwok Kuen[25]);

(3)  When considering the right to freedom of expression, different considerations should be had with regard to the different natures of the premises involved, including whether it is open to public;

(4)  Even for premises with a public character, one must consider whether it is a premises generally open to the public and if there are restrictions, what those restrictions are, and what the objectives for those restrictions are.  Whether the property owner, including governmental agencies, who set the conditions for the use of the property is in exercise of his/their proprietary right and if the conditions are consistent with the rules in public law. (See HKSAR v Leung kwok Wah[26]);

(5)  There is no absolute right to demonstrate even at public places or premises of a public nature[27];

(6)  In the case of a government premises not open to the public, there is no right of access to demonstrate at such premises[28] ;

(7)  With regards to the Legislative Council Chamber, despite the fact that this is a premises of a public nature, but special considerations should be given, in particular with regard to the principle of separation of powers. (See Leung Kwok Hung v President of the Legislative Council (No.1)[29]). The Legislative Council has the power to govern its own affairs, and this includes the power to exercise control over the premises occupied by it (See Zundel v Liberal Party of Canada[30]).

35.  I agree with the argument Mr Li made: Members of the public do not have the right to demonstrate in the Legislative Council Building, especially when meetings are in session. Having regard to the principle discussed in paragraphs 23 and 24 of this judgment, I take the view that the rights the appellants mentioned have not been infringed. Neither the Basic Law nor the Bill of Rights gives members of the public the freedom to exercise such rights inside the Legislative Council Chamber, especially when they in fact do not have the absolute right to enter the Chamber.

36.  In any event, I have considered that if the relevant rights have been infringed, whether or not it is consistent with the rules in public law:

(i) The relevant restrictions that infringe the rights are prescribed by law;

(ii) The relevant restrictions are necessary.

The burden is on the prosecution to prove that it is consistent with the rules.

37.  There is no dispute as far as this charge is concerned that the relevant restriction is prescribed by law.

38.  With regards to the question of whether it was necessary, it is:

(i) for respecting the rights or reputation of others; or

(ii) for protecting national security or public order, or public health or morals (See article 16(3) of the Bill of Rights Ordinance and HKSAR v Ng Kung Siu)

With regards to this charge, the relevant consideration was to protect public order.

39.  The term “public order” should include the concept of “ordre public”. In the area of public law:

“... ordre public includes the existence and the functioning of the state organization, which not only allows it to maintain peace and order in the country but ensures the common welfare by satisfying collective needs and protecting human rights”[31]

40.  In Ng King Siu, Li CJ pointed out:

“First, the concept is an imprecise and elusive one. Its boundaries cannot be precisely defined. Secondly, the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole. Examples include: prescription for peace and good order; safety; public health; aesthetic and moral considerations and economic order (consumer protection, etc.). Thirdly, the concept must remain a function of time, place and circumstances.”

41.  The Court of Final Appeal pointed out in Leung Kwok Hung:

“As far as the ‘necessary requirement is concerned, the word ‘necessary should be given its ordinary meaning. The requirement is subject to the ‘proportionality’ test. The legitimate purposes that may be pursued by any restriction on the right of peaceful assembly have been constitutionally specified. As article 21 of the ICCPR has already comprehensively set out all the legitimate purposes; therefore, the proportionality test should be formulated in these terms: (1) the restriction must be rationally connected with one or more of the legitimate purposes; and (2) the means used to infringe the right of peaceful assembly must be no more than is necessary to accomplish the legitimate purpose in question.”

42.  Protecting the public order within the Legislative Council Building is no doubt a legitimate purpose; the question is whether the current restrictions are necessary.

43.  Mr Cheung submitted:

(1)  The Legislative Council is a place for expressing opinions;

(2)  Section 12(1) of the Administrative Instructions is in effect an across-the-board ban on the display of sign; it cannot possibly pass the relevant tests. He gave example of someone displaying a “I love Hong Kong” sign to argue that it would not possibly disrupt the normal processes of the Council. Besides,Legislative Councillors did from time to time display signs that could upset people but meetings still continued;

(3)  Whatever the size of the object on display and the duration of the display, there is no exemption. What’s more, there is no requirement to prove why the person displaying it did so and whether he had the intent tocause nuisance to the Legislative Council meetings. It is unreasonable and not proportionate that the Ordinance should disallow it all;

(4)  There are already other effective measures, such as forbidding the person displaying the object to stay, to protect the order of the Council. Therefore there is no need to create a criminal offence. Even if it is necessary, restrictions such as that in section 11 of the Administrative Instructions[32] is already sufficient.

44.  The powers and functions of the Legislative Council arevery important. They are exercised by the representatives who have been elected in the manner as prescribed by law. Such powers and functions include the following:

(1)  To enact, amend or repeal laws and legal procedures;

(2)  To examine and approve budgets introduced by the government;

(3)  To approve taxation and public expenditure;

(4)  To receive and debate the policy addresses of the Chief Executive;

(5)  To raise questions on the work of the government;

(6)  To debate any issue concerning public interests.

To debate is necessarily an important function performed by members of the Legislative Council. That they can freely express their views in different manners must be protected within appropriate limits. However, this does not mean that members of the public who observe the proceedings of the meetings in the public gallery can also express their views freely without any restrictions at all. The Legislative Council Chamber is a place for the Councillors to conduct proceedings. Members of the public who have views to express can do so at other venues through different channels. Besides, there is a protest area outside the Legislative Council Building. There are also many ways to voice one’s opinions to the government or the Legislative Councillors directly and they can take place in other venues.

45.  Ours is a representative government.  When a matter reaches the stage where it is being discussed in the Legislative Council, how the views and wishes of the members of the public are given effect to through the Legislative Council proceedings is to be dealt with by the Councillors they have elected. If members of the public can still join in as they wish to express their views during the meetings of the Legislative Council, the efficacy of a representative government system can hardly be ensured. This does not mean that members of the public are not allowed to express their views at this stage, it only means that they have to do so in other venues and through other channels. The freedom of expression is only restricted when they are at the press or public gallery.

46.  As regards the point Mr Cheung submitted on blanket prohibition, I have the following observations: The views that members of the public would like to express at the Legislative Council Chamber very likely are relevant to the subject-matter being discussed there; the chances that they are not are extremely slim. It is hard for there to be consensus in the community on a certain topic. What section 12(1) seeks to restrict are the display of sign, message or banner. To allow someone to display sign, message or banner in the press or public gallery that is capable of conveying certain view, position or ideology makes it hard not to allow other people to display sign, message or banner that expresses a different view, position or ideology. To express idea by means of these items is different from doing so with words; these methods of expression last, as long as the items are being displayed, they continue to be an eyesore to people who hold a different view or position.

47.  To think that to allow people holding different views or positions to do this will only create a scene where there is mutual display and not any risk to safety or order is a view that is divorced from reality.

48.  Therefore, in my view, the restriction imposed by the section 12 of the Administrative Instructions is necessary and consistent with the need for the orderly conduct of Legislative Council meetings. It also has reasonable connection with a legitimate purpose.

49.  Mr Cheung urged upon me that this across-the-board restriction is disproportionate.

50.  To consider whether it satisfies this test, regard has to be had to the fact that the restriction is only applicable to the press and public galleries.

51.  In that scenario, when items such as signs, messages and banners are displayed, can it be for reason other than expressing a view or position? The chances of that being the case are extremely slim. Some signs, words or expressions that apparently are neutral or even convey positive message can be understood by all to represent certain position or convey certain view when placed in specific circumstances. Even the example of “I love Hong Kong” Mr Cheung gave falls into this category.

52.  It is not only difficult to make arbitrary differentiation between the kinds of signs, messages or banners that can be displayed and those that cannot, it will also give rise to disputes and the order and proceedings of meetings will be affected as a result.

53.  In view of the fact that the areas where the restriction applies is limited and members of the public can express their views in other areas and there are also other channels for them to do so, in my view, even if the restriction is like what Mr Cheung described as being applied across-the-board, it has passed the proportionality test.

54.  In considering the matter, I gave special regard to the fact that what the Ordinance seeks to restrict is “display”. According to the Modern Chinese Dictionary（現代漢語詞典）, the meaning of “display” is “to present clearly or to show prominently”. And according to the Shorter Oxford Dictionary, the word “display” carries the meaning of ‘expose to view, make visible, show, exhibit’. According to the Oxford Advanced Learner’s English-Chinese Dictionary, it has the following meaning: “to put something in a place where people can see it easily, to show something to people: 陳列；展出；展示”. In my view, when someone has performed the act of displaying a prohibited item and the circumstances are such that it has achieved the effect of displaying, the concern that the prohibition goes so far as to include a small item as Mr Cheung submitted is no longer the crux of the matter, it is because the act and circumstances have already constituted the situation that the Ordinance seeks to address. It should be prevented. The same applies to the duration of time the display lasted.

55.  Time is very precious in the proceedings of Legislative Council meetings. If the proceedings are interrupted due to the acts of the people who are there to observe them, not only will it affect the progress of the discussion, it will also waste the precious resources of the whole community when resolutions are delayed. It is necessary, proportionate and consistent with the overall interest of the community to take preventive action against the occurrence of such situations.

56.  There are also times when the actions of the Councillors obstruct discussion and delay resolution. But their actions are regulated by the Rules of Procedures and monitored by electors. It is a situation entirely different from that of members of the public to observe the proceedings of the meetings.

57.  Section 12(3) of the Administrative Instructions confers power on an officer of the Council to refuse admission to a press or public gallery to any person displaying any relevant items or may display any relevant items. This is a preventive measure. Had the officer been aware of this, he would not have admitted such people. The situation addressed by section 12(1) should only occur after when the officer concerned had allowed them to enter without knowledge. It is by no means wrong to formulate a criminal law to deal with such people.

58.  Mr Cheung also submitted that since the Administrative Instructions contained other restrictions, such as section 11 of the Administrative Instructions, the restriction in section 12 of the Administrative Instructions was not necessary.

59.  In my view, although the actions restricted by these two Administrative Instructions may overlap, they are not identical. Besides, the elements of offence that need to be proved to show that the relevant restriction has been violated are different. Section 12 of the Administrative Instructions concerns the display of items that may provoke outrage; it is more preventive in nature which is also necessary. If there is only section 11 to rely on, it will be difficult to prevent one of the scenarios where there is the very likely risk that proceedings of the meetings may be affected.

60.  In my view, the restriction in section 12 of the Administrative Instructions is necessary. To maintain security within the precincts of the Council Chamber and to ensure that the people inside act properly are connected to the purpose of protecting public order. It is proportionate in that it has not gone beyond what is necessary for achieving this purpose. It maintains a good balance between individual rights and the interest of the community. Therefore, I find the relevant restriction constitutional.

61.  There is no merit in the grounds of appeal. The appeal of D1 against the conviction on the first charge is dismissed.

The third charge

62.  In respect of the third charge, Mr Cheung raised constitutional issues and issues on the findings of facts in his submissions.

Constitutional issues

63.  The constitutional issues arose from the appellant’s argument that the restriction in the Instructions was not precise enough and failed to satisfy the proportionality test.

64.  Mr Cheung submitted that the prosecution relied on all the acts captured in the video recordings to support the charge but failed to pinpoint which was the act that was the one defined in the allegation of charge three and therefore had not been able to meet the standard of as “prescribed by law”.

65.  He also pointed out that “failure to behave in an orderly manner” covered a great variety of acts and there was no requirement that the alleged disorderly conduct was performed with the intention to disturb the proceedings. It was too wide to be consistent with the constitutionally protected rights including freedom of speech, freedom of assembly and of demonstration. It was inconsistent with article 39 of the Basic Law and articles 16 and 17 of the Bill of Rights Ordinance.

66.  Mr Cheung submitted that the relevant restriction failed to satisfy the necessary and proportionate requirements. If a kind of conduct should be restricted and results in the infringement of the right to freedom of speech and is punishable by criminal law, such conduct should be serious and not merely a failure to behave orderly. In a free and democratic society, members of the society respect the views of each other, even those that are unpopular[33]. Since members of the public are allowed to observe the proceedings of the Legislative Council meetings, it is only to be expected that someone will express his views or even express his discontent by protest. Besides, the Legislative Council allows the expression of views, when someone makes a provocative or controversial comment, people will also tolerate it. Therefore, the relevant restriction does not satisfy the proportionality requirement.

67.  He cited Steel v UK[34]to submit that the requirement that someone should behave in an orderly manner was too vague and unclear; its meaning was not precise enough to meet the precision requirement in law. In that case, the European Court of Human Rights took into account that one of the conditions that the person placed on a binding-over order was “to be of good behaviour” and came to the view that the expression was imprecise and offered little guidance to that person as to the type of conduct which would amount to a breach of the order.

68.  Mr Li however argued that the magistrate had correctly applied the legal principle and had not erred.

69.  I shall first deal with the question of as “prescribed by law”.

70.  Chapter III of the Basic Law deals with the fundamental rights and duties of the Hong Kong residents. Article 39 of it states as follows:

“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law（依法規定）[35]. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

71.  The rights contained in article 16 of the Bill of Rights Ordinance can also be restricted by law (See article 16(3) of the Bill of Rights Ordinance)[36].

72.  The Basic Law does not elaborate on the meaning of “prescribed by law”. There are discussions on it by the Court of Final Appeal in a number of different cases, such as Shum Kwok Sher v HKSAR[37]and Leung Kwok Hung v HKSAR[38]. The expression used by the Court of Final Appeal was “依法訂明”[39]. The points it made are also applicable when considering the question of “依法規定” (prescribed by law).

73.  To be prescribed by law, not only does it have to be expressly stated in the statutes, it also has to meet the principle of certainty. The Court of Final Appeal held as follows in Shum Kwok Sher:

“International human rights jurisprudence had developed to the point that the expression “prescribed by law”, when used in a context such as art. 39 of the BL, mandated the principle of legal certainty and the requirement of accessibility. A norm could not be regarded as “law” unless it was formulated with sufficient precision to enable the citizen to regulate his conduct; and the law must be adequately accessible in that the citizen must be able to have an indication that was adequate in the circumstances of the legal rules applicable to a given case, This principle was likewise incorporated in the expression “according to law” in art. 11 of the Bill”.

74.  In Leung Kwok Hung, the Court of Final Appeal held as follows:

“The “prescribed by law” requirement mandated the principle of legal certainty: a law which conferred discretionary powers on public officials, the exercise of which might interfere with fundamental rights, must give an adequate indication of the scope of the discretion. The degree of precision required depended upon the particular subject matter of the discretion”

75.  On the question of certainty, in respect of the first point Mr Cheung raised[40], I am of the view that it appears that he had mixed up the question of the certainty of the prosecution’s allegation and the question of as prescribed by law.

76.  In my view, whether or not the prosecution had clearly identified which one of the act was alleged to have not been orderly is not a constitutional question, it only concerns whether or not the allegation had been made clear to the defence and whether there was any inadequacy that might cause injustice. No such accusation was made either during the lower court trial or the appeal.

77.  An allegation the prosecution makes against an accused is generally made known in the particulars of offence and the prosecution can also state it in submissions or the correspondence exchanged between the parties.

78.  During the trial, Ms Jasmine Ching, Senior Public Prosecutor, said the following in her written submissions:[41]

“28.  And it can be seen from the situation at the scene and the evidence of the witnesses that at that time, a number of Legislative Council officers, including PW1 and PW2 were executing their duties to stop D1 and the 2^nd defendant from displaying sign and message on the glass curtain wall.

29.  D3 grabbed hold of PW1 with force; PW1 could only break his grip by pulling hard a number of times. As a result, the right hand/arm of PW1 suffered pain after the event. Such behaviour added difficulty to the work of PW1 and had gone beyond the bottom line of ‘causing mere inconvenience or adding trifling effort.”

Nothing can be found from the appeal bundle that the defence counsel at the trial had complained that the defence was misled. In the end, the magistrate also relied on this allegation as the basis to consider the matter. In my view, the prosecution had clearly defined the behaviour alleged in the third charge in the present case.

79.  I now turn to the question of whether there is certainty in the provision. The relevant provision is section 11 of the Administrative Instructions. It states as follows:

“Persons entering or within the precincts of the Chamber shall behave in an orderly manner and comply with any direction given by any officer of the Council for the purpose of keeping order”

80.  The provision that creates the relevant offence is section 20(b) of the Ordinance. It states as follows:

“Any person, other than a member or officer of the Council, who-

(b)  contravenes any administrative instructions issued under section 8(3), or any direction given thereunder, regulating the admittance of persons to or the conduct of persons within the Chamber or the precincts of the Chamber, commits an offence and is liable to a fine of $2000 and to imprisonment for 3 months.”

81.  In my view, regard must to be had to both section 20(b) of the Ordinance and section 11 of the Administrative Instructions to find out what the relevant offence is. Reading the two provisions in conjunction, the elements of the offence are:

(1)  An accused is someone who enters or remains within the precincts of the Chamber;

(2)  He fails to behave in an orderly manner; and

(3)  He fails to comply with the direction given by an officer of the Council for the purpose of keeping order.

82.  “Behaving in an orderly manner” is an expression that carries a wide potential of meanings. It may even cover the behaviour of whether someone lines up or fights his way to enter the premises. In that case, does it mean that a person who fails to line up is guilty of the offence? The answer is negative. It is because there are two more elements of offence. The first one does not require any discussion as no further consideration is required if it cannot be established. As regards the third element of the offence, in my view, although the word “reasonable” is not figured in the expression, it must implicitly contain the meaning of it being a “reasonable instruction” as far as the interpretation of the Ordinance is concerned. It is because it cannot be the legislative intent to require people to obey an unreasonable instruction. And this reasonable instruction must be issued for the purpose of keeping order.

83.  Such approach of interpretation was endorsed by the Court of Final Appeal in HKSAR v Lam kwong Wai[42]. In that case, the Court held:

“(6) The modern common law approach to statutory interpretation insisted that context and purpose be considered in the first instance, and mot merely at some later stage when ambiguity might be thought to arise. But a court was not allowed to attribute a meaning which did not accord with the legislative intent properly understood.

(7) Remedial interpretation was more radical. It was an interpretation given to preserve a statute’s validity, but the interpretation was not one the statute was capable of bearing as a matter of ordinary common law interpretation. Such interpretation was a departure from the legislative intent and did not depend on the particular form of words used. The interpretation involved the well-known techniques of severance, reading in, reading down and striking out.

(8) Under the Basic Law, the implied powers of the courts of the HKSAR included the implied obligation to adopt a remedial interpretation of a legislative provision which would, so far as it was possible, make it Basic Law-consistent or BOR-consistent. With a remedial interpretation, the courts interfered less with the exercise of legislative power than they would if they declared the legislation unconstitutional and invalid.

(9) It was only in the event that a remedial interpretation was not possible that a court should declare a contravention, entailing unconstitutionality and invalidity. This might occur, for instance, where the remedial interpretation would be incompatible with the underlying thrust of the legislation, would call for legislative deliberation, or would change the substance of a provision.

84.  Mr Cheung accepted that the court had such powers.

85.  It was Mr Li’s submission that the key behaviour of this offence is the “failure to observe order”. Although the words used are not “behaviour that upsets order”, the meaning is more or less the same. The legal criteria applicable are no different. The courts have discussed what amounts to “behaviour that upsets order” in various cases. The general view is that it is a finding of facts.

86.  As to the elements of offence that constitute behaviour that upsets order, Mr Li’s submission is sufficiently clear. He cited HKSAR v Chow Nok Hang[43] in support of his argument.

87.  Generally speaking, behaviour that upsets order is worse than behaviour that fails to observe order. The position of the Respondent is that the so-called failure to observe order should be understood to mean behaviour that upsets order. Since the Respondent adopts this position and it is consistent with Lam Kwong Wah[44] , I shall consider the present case in the light of the Respondent’s position.

88.  In the light of this and the observations that I made in paragraph 82 above, I shall rely on the following elements of offence as the basis of my consideration:

(1)  The accused was someone who entered or remained within the precincts of the Chamber;

(2)  He upset the order; and

(3)  He failed to comply with the direction given by an officer of the Council for the purpose of keeping order.

89.  Chan, acting CJ, as he then was, pointed out in HKSAR v Chow Nok Hang[45] that the court had not given any comprehensive definition applicable to all scenarios on what behaviour that upset order was. It was generally felt that it was an ordinary expression that should be given its ordinary meaning[46]. Ribeiro PJ pointed out that concepts of what was disorderly varied with time and place, and might be affected by the circumstances in which the relevant conduct occurred. Therefore, it should best be left to the trial judge to find as a fact.[47]

90.  The offence in question in Chow Nok Hang was under section 17B of the Public Order Ordinance[48]:

“(1)  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 or incites others so to act shall be guilty of an offence and shall be liable on conviction to a fine at level 2 and to imprisonment for 12 months.

(2)  Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine at level 2 and to imprisonment for 12 months.”

91.  The judgment of that case is in relation to these offences and has regard to the fact that these two types of offences have other elements of offence. Although the offence in that case is different from that in the present one, in my view, that judgment sheds a lot of light on the matter.

92.  In my view, the word disorderly carries its ordinary meaning. As far as the circumstances of the present case are concerned, the trial magistrate might make a judgment having regard to the time, venue and circumstances under which the relevant behaviour took place.

93.  The Court of Final Appeal held as follows in Winnie Lo v HKSAR[49]:

“The central requirement of legal certainty was that a criminal offence must have a sufficiently clearly formulated core to enable a person, with advice if necessary, to regulate his or her conduct so as to avoid liability for that offence. At the same time, the principles recognized the need for both flexibility and development. Such a process of development was not constitutionally objectionable provided that it did not result in judicially extending the boundaries of criminal liability. If the nature of a crime was such that its definition had to be broad and flexible enough to embrace many different ways of committing that offence, it was not legally uncertain.”

94.  Having regard to the considerations and discussions made in the decided cases referred to in paragraphs 73 and 74 of this judgment, in my view, the restrictions or infringement on the rights in question are prescribed by law and there is sufficient certainty in the relevant legal provisions.

95.  I now turn to the question of whether the relevant restrictions and infringement meet the necessary and proportionate requirements.

96.  The Administrative Instructions were made pursuant to section 8(3) of the Ordinance; its purpose is as stated in section 8(3). It is mainly for maintaining the security of the precincts of the Chamber, ensuring the proper behaviour and decorum of persons therein. It is within the realm of protecting ordre public[50].

97.  Section 11 of the Administrative Instructions was clearly enacted for this purpose, a purpose that is legitimate.

98.  If members of the public who enter the precincts of the Legislative Council Chamber behave in a disorderly manner and do not obey the reasonable instructions the officers of the Legislative Council give for the purpose of keeping order, it will no doubt have a great impact on the effective operation of the Legislative Council. It will also intrude into the rights of the members of public who are there to observe the proceedings in a normal manner.

99.  Mr Cheung urged upon this court to accept his submission that areas that were subject to the restriction of section 11 of the Administrative Instructions were wider than those to section 12. Section 12 only applied to the press and public galleries whereas section 11 covered the whole Council Chamber. Besides, according to section 1 of the Administrative Instructions:

“‘precincts of the Chamber’（會議廳範圍）means the Chamber and offices of the Council and any adjacent galleries, and places provided for the use or accommodation of members of the public and representatives of the press, radio and television, and subject to any exceptions made by the President includes, during the whole of any day the Council or a committee is sitting, the area marked as such on the plan.”

As far as the present case is concerned, according to the plan produced pursuant to the admitted facts, on the day in question, the whole of the Legislative Council Building was within the precincts of the Chamber.

100.  It is indeed the case that section 11 covers a larger geographical area, but it must not be overlooked that the relevant area includes a number of conference rooms, Council Business Division, Legal Service Division, Research Office and Special Administration Office[51]. Although the details of these places and divisions are not known in this case, they all appear to be important places. If incidents that section 11 of the Administrative Instructions seeks to regulate occur, it is obvious that there will no doubt be impact on the important duties and functionsthat the Legislative Council has to execute.

101.  Mr Cheung also submitted that the Legislative Council was a place that allowed the expression of views, notwithstanding the provocative or controversial nature of the views expressed, they would be tolerated. At the Legislative Council Building, different views should all be accepted. Besides, even if noises were made, it would fail the proportionality test if it was regarded as unlawful no matter what the duration was, how bad the noise was and whether it took place when a meeting was going on or not.

102.  I do not agree with this submission. As discussed in paragraphs 91 and 94 of this judgment, the matters that Mr Cheung raised were exactly the factors that the magistrate had to consider when making a finding on whether or not there was disorderly behaviour. It is not the case that all sorts of matter, regardless of their scale, constitute the commission of this offence.

103.  Mr Cheung submitted that as there was public gallery in the Legislative Council for members of the public to observe the proceedings, it was foreseeable that members of the public would express their own views or express their discontent by means of protests.

104.  I do not see how the provision of public gallery was for the purpose of allowing members of the public to express their views or position in this manner. In my view, that there is public gallery is mainly for it to be seen that Legislative Council meetings have to be held openly so that members of the public can observe the proceedings of the meetings in person.

105.  The importance of holding Legislative Council meetings openly is beyond doubt; it also ensures that the duties that the Legislative Council executes are carried out when being openly monitored. To allow (people) at the public gallery to behave in a manner against section 11 of the Administrative Instructions will also affect the right exercised by members of the public who intend to observe the proceedings peacefully to understand and monitor Legislative Council meetings.

106.  Chan, acting CJ, as he then was, pointed out in Chow Nok Hang: It is important that those who purport to exercise the right to the freedom of expression must also respect the rights of others and must not abuse such right.[52]

107.  In that case, while stressing the importance of the relevant rights and freedom, Ribeiro PJ pointed out that these freedoms are by no means absolute. Demonstrators or petitioners must ensure that their conduct does not go beyond the constitutional limits of those rights.[53] He went on to say that once a demonstrator became involved in violence or the threat of violence, in other words, behaved in a manner that resulted in a breach of peace, that demonstrator crossed the line separating constitutionally protected peaceful demonstration from unlawful activity which was subject to legal sanctions and constraints[54]. The court has to have regard to whether the demonstrator’s conduct impinged unacceptably upon the rights of others.[55]

108.  I also have regard to the fact that the relevant restriction only applies to the precincts of the Chamber. Even when meetings are going on, according to the law and relevant measures, the precincts of the Chamber include also the whole of the Legislative Building, the application of the restriction confines also to this geographical area only; members of the public can still exercise their rights in other areas.

109.  Mr Cheung also submitted that all it required to ensure that meetings were proceeded with smoothly was for the Chairman to exercise his power to make people causing nuisance to the meetings to leave without having to create a criminal offence to restrict the relevant behaviour, especially when such a restriction infringed the rights of the members of the public.

110.  I do not agree with this submission. The Chairman can of course exercise his powers according to the circumstances. If all it requires to solve the problem is to ask the member of the public to leave, I believe that the Chairman will no doubt consider doing this. However, this does not mean that it is not necessary, not reasonable or not proportionate to create an offence for it. It is not hard to imagine that situations may emerge during Legislative Council meetings where only the criminalization of the behaviour is a sufficient deterrence. There may even be times when the criminal law has to be executed before peace can be restored and meetings can proceed further.

111.  In my view, the relevant restriction is reasonable, necessary and proportionate.

112.  I find it constitutional to enact the provisions of the relevant offence.

The issue on the findings of facts

113.  Mr Cheung complained that the magistrate erred in the findings of facts he made, as there was insufficient evidence to support the charge.

114.  His arguments are mainly as follows:

(1)  The prosecution failed to identify what single act that D1 did was behaviour that “failed to observe order”. If the prosecution’s allegation covered a series of acts, then it failed to meet the prescribed by law requirement. Besides, it also concerned the question of whether it was a matter for the officers of the Legislative Council to decide;

(2)  As a matter of fact, before the Chairman stopped the meeting, he had requested that the noisy people be taken away. At that time, a security officer identified a Madam Chu (transliteration) as someone who was disorderly and had requested her to leave. Security officer/officers only issued warning to the people in the Chamber instead of directing it to D1 alone. Therefore, there is insufficient evidence to prove that the defendant “failed to observe order”.

(3)  There is evidence to show that at that time, the reaction of the people was directed at the security officer/s, and during most of the time, Legislative Council meeting was not in session.

115.  The evidence in respect of the third charge includes the following:

(1)  The evidence of PW2;

(2)  CCTV recordings;

(3)  Photograph/s extracted from the recordings;

(4)  Photograph/s obtained from the mass media; and

(5)  Admitted facts.

116.  The evidence given by PW2 can be found in the relevant parts of paragraph 6 of this judgment.

117.  The video recordings were played during the hearing of the appeal. They are recordings without sound. Broadly speaking, it was a chaotic scene. Apart from showing the behaviour of each of the people, they also show that PW2 was holding a “mic” in his hand/s.

118.  As regards the admitted facts, they include the following:

(1)  The 3 defendants were present to observe the proceedings of that meeting;

(2)  During the second meeting, D1, the second defendant and other members of the public had on a number occasions shouted slogans and behaved noisily;

(3)  The Chairman issued warning to the people who behaved noisily at the following times:

(i) First warning-issued at around 9:23;

(ii) Second warning-issued at around 9:26;

(iii) Third warning-issued at around 9:27;

(iv) Fourth warning-issued at around 9:27.

(4)  The meeting was suspended at 9:28 as a result of the nuisance caused by the noise made.

(5)  During suspension of the meeting, PW2, Liu Kam Wo (transliteration), an officer of the Council, did read out a warning to the people at the public gallery: “Any person who creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting commits an offence and is liable to a fine of $10000 and to imprisonment for 12 months, and in the case of a continuing offence to a further fine of $2000 for each day on which the offence continues.”[56]

(6)  The meeting eventually resumed at 10:31 in conference room 3. The proceedings were no longer open to public to observe but were broadcast live to them.

119.  As far as argument (1) Mr Cheung put forward is concerned, how the matter was dealt with, including whether the police was to be called, was of course a matter for the officers of the Legislative Council to decide. But whether there should be a conviction is a matter for the court to decide according to the law on the basis of the evidence adduced.

120.  As far as the other matters argument (1) covered are concerned, in my view, it can be seen from the discussions made in paragraphs 76 to 78 of this judgment that these matters are not established.

121.  As regards argument (2), firstly, the evidence the witness gave was as set out in paragraph 6 of this judgment[57]. The warning issued by PW2 was not directed to D1 only. That is a fact. But whether D1 was guilty of the 3^rd charge is a finding of fact to be made by the magistrate. The evidence shows that the Chairman had issued warnings a number of times (content unknown), and PW2 had done the same. In addition, he said to the people: (you) can leave of your own accord. It is clear that the officer had already issued an instruction. Under the circumstances in question, the instruction was:

(1)  issued for the purpose of keeping order; and

(2)  reasonable.

122.  Looking at the evidence as a whole, it can hardly be said that the magistrate was wrong to find D1 guilty of the offence. It is not a finding that should be interfered with and overturned. Although the warning and the instruction were not made to D1 directly or solely, I agree with the submission of Mr Li that the instruction in support of the charge did not necessarily have to be made solely or directly to the accused.  Whether or not the instruction was enough to support the charge of course depended on the circumstances. Although the situation was chaotic at that time, people were noisy and even shouted “boo”, the area of the scene was relatively small and the number of people involved was only a few tens, the distance between D1 was PW2 was close, I agree with the magistrate’s finding: D1 took no heed of the warning PW2 issued[58]. It was a reasonable instruction.

123.  As regards argument (3) Mr Cheung made, although the meeting was not in session during most of the time when the tumult was going on, this was exactly the consequence of the behaviour of the various people and the reason why the prosecution had to adduce evidence that covered a relatively long time. The prosecution did this to put the events in context to let the court know. Even though the meeting was not in session during the time when D1 was doing the offending acts, it cannot be ignored that the meeting was disrupted as a result of the behaviour of the various people, and eventually, it could not resume in the same venue. These are all matters that the person making the findings of facts can have regard to.

124.  The appeal lacks merit. The appeal of D1 against the conviction on the 3^rd charge is dismissed.

The second charge

125.  The second charge is in respect of D3. The main complaints Mr Wong, counsel representing him, made were about the findings of facts the magistrate made.

126.  The prosecution alleged that PW1 was the Legislative Council officer who was obstructed in the execution of her duties. Mr Wong pointed out that the magistrate found that the duty of PW1 was to stop the second defendant from displaying a sign or message[59], and the obstructive behaviour of D3 was to pull the right hand/arm of PW1. However, the video recordings showed that when PW1’s right hand/arm was being pulled by D3[60], D1 and the second defendant had yet to post the message[61]. And when PW1 gave evidence, she did not give any details on the behaviour of D3 after he had posted the message. Mr Wong submitted that under these circumstances, the evidence was not sufficient to prove that D3 had intended to or deliberately obstructed PW1 in executing the duty of stopping the second defendant from displaying a sign or message. Besides, even if D3 had grabbed the right hand/arm of PW1, he might have an innocent explanation such as he was trying to protect himself or stop PW1 from falling.

127.  The relevant offence was created by section 19(b) of the Ordinance. It states as follows:

“Any person who-

(b)  assaults, interferes with, molests, resists or obstructs any officer of the Council while in the execution of his duty commits an offence and is liable to a fine of $10000 and to imprisonment for 12 months.”

128.  The parties did not dispute that two of the elements of the offence were:

(1)  The accused had behaved in the manner stated in the Ordinance;

(2)  The behaviour was directed to an officer of the Legislative Council who was in the course of executing his/her duties.

129.  Mr Wong submitted that the offence had yet another element. As far as obstruction is concerned, it must be proved that the accused had the intent to obstruct the officer of the Legislative Council. Whereas Mr Li took the view that it suffices when it had been proved that the accused had the intention to obstruct or had obstructed recklessly.

130.  In so far as this offence is concerned, I have reservation regarding whether or not there exists such a 3^rd element of offence.

131.  HKSAR v Tam Lap Fai[62], a Court of Final Appeal case cited by both parties, made no mention that this was an element of the offence of obstructing a police officer in the due execution of duty. However, the issue in that case was what constituted an obstruction.

132.  The second offence originates from section 19(b) of the Ordinance[63]. It is worded differently from the offence of obstructing a police officer[64]. The word “wilfully” is not present.

133.  I have considered the question of whether the law was deliberately drafted in that manner when it was being enacted. In other words, it is not necessary to prove mens rea in order to prove the offence. All it requires is proof that there was behaviour sufficient to constitute an obstruction. I do not think so. It is because to do so will displace the presumption that the prosecution has to prove mens rea. There is no doubt that this presumption applies. This was confirmed by the Court of Final Appeal in Hin Lin Yee v HKSAR[65]. The case also discussed under what circumstances this presumption could be displaced. The Court of Final Appeal pointed out:

“In deciding whether the presumption of mens rea had been displaced expressly or by necessary implication, the first, and potentially crucial, consideration was the statutory language, including the use of words carrying a connotation of knowledge or intention. Second, the nature and subject matter of the offence were also of great importance. The more serious the offence in terms of penalty and social obloquy, the less likely it was that the presumption would be held to have been supplanted, although this was not impossible. On the other hand, there was generally less need to feel inhibited about overriding the presumption in relation to what might compendiously be called ‘regulatory offences’, eg public health, licensing and industrial legislation. Third, the legislative purpose, and its possible frustration by insisting on full mens rea, was obviously important.”

134.  It can hardly be said that the nature of the offence was not serious; it is not regulatory in nature. Besides, in the absence of the requirement of proving mens rea, it may result in people who unknowingly behaved in the manner that constitutes an obstruction to commit the offence. For example, someone put some things at a place where an incident later occurred, and doing so obstructed the execution of duty by an officer. That this alone is sufficient to constitute an offence is in my view not consistent with the proportionality requirement.

135.  In the present case, the respondent made no submission that mens rea had been displaced. The dispute was what the mens rea of the offence should be when it is not expressly stated in the Ordinance.

136.  Generally speaking, unless there is a confession from the accused, there can rarely be direct evidence to prove mens rea. What has to be done is to assess the overall circumstantial evidence to see if it supports an inference of guilt.

137.  As far as the offence of wilfully obstructing a police officer is concerned, in Chung Chi Cheung v R[66], Michael Wong J, as the then was, referred to and agreed with the decision in the English case of Lewis v Cox[67] that a person was guilty of obstructing a police officer in the execution of his duty if he deliberately did an act which prevented a police constable from carrying out his duty or made it more difficult for him to do so, and when doing so, he knew and intended that his conduct would have that effect.

138.  This view was shared by Deputy High Court Judge Tong, as he then was, in HKSAR and Lo Yau (transliteration)[68].

139.  The obstruction must be caused intentionally. It has been effective so far without causing any injustice. Its requirement is lower than that of intent and is similar to recklessness without being identical. In my view, it meets the proportionality requirement to adopt “intentional” as the mens rea of this offence. It will neither excessively infringe the basic rights nor hinder achieving the legislative intent.

140.  I therefore consider the matter on the basis that the offence requires the mens rea to commit the offence intentionally and rely on the testimonies given by the witnesses[69] as referred to in the statement of findings and the video clips played during the appeal hearing to consider the matter.

141.  The magistrate found as follows:

“As regards the second charge, it alleges that the third defendant obstructed the first witness in executing her duties. The prosecution cited HKSAR v Tam Lap Fai (2005) 8 HKCFAR 216 in its submission to point out that the Court of Final Appeal considered that dropping a driving licence on the ground to make a police officer bend down to pick it up was not merely ‘causing mere inconvenience or adding trifling effort, but was sufficient to constitute obstructive behaviour’. The court agrees with this observation. Besides, the court considers that the third defendant had once pulled the hand/arm of the first witness so that she had to shake off the hand of the third defendant. The behaviour of the third defendant far exceeds what ‘causes mere inconvenience or adding trifling effort.’ The third defendant was clearly obstructing the first witness in executing her duties.”[70]

142.  After carefully examining all relevant evidence, I find no error in the findings of facts the magistrate made. The findings are well supported by the evidence.

143.  The Court of Final Appeal pointed out in Tam Lap Fai:

(1)  The applicable test in deciding whether there was an obstruction of the officer in the due execution of his duty was that propounded by Lord Goddard CJ in Hinchcliffe v Sheldon where he said: “for the present purpose, ‘obstructing’ means making it more difficult for the police to carry out their duties”. Whether a particular conduct amounted to wilful obstruction of an officer in the due execution of his duty was always a matter of fact and degree. It was important to look at all the circumstances of each case, including what the person had done and how it was done, what the officer was doing, and the effect of what the person had done on what the officer was doing.

(2)  However, the test did not include conduct which might cause mere inconvenience to the officer or require him to expend only trifling additional effort. On the other hand, it was not necessary for the prosecution to prove that the conduct in question made the officer’s work substantially more difficult. This was to set too high a standard and if such test was applied too strictly, it might hamper the work of the police. Such a test was neither appropriate nor necessary.

144.  There is no doubt that applying the standard set out in Tam Lap Fai, D3’s behaviour had obstructed PW1 in executing her duties. To apply what the court held in CHUNG Chi Cheung, the obstructive behaviour of D3 was intentional.

145.  As regards the submission that when the right hand/arm of PW1 was being pulled by D3, the sign had not yet been posted, I have watched the relevant video recordings carefully and find that the action of D3 was continuous; he was still acting when PW1 tried to take away the sign.

146.  Even if causing the obstruction with intent is an element of the offence, judging by the evidence, I find that the obstructive behaviour that D3 put up was clearly with the intention of obstructing PW1 in executing her duties.

147.  As regards Mr Wong’s submission that there might be an innocent explanation, I do not agree with his view. In assessing the evidence of this case, it must be borne in mind that during the trial, none of the accused testified in court nor was there any evidence from the defence. The established legal principle is: the court can only consider the evidence that has been produced in court. It must not speculate when there is no evidence. The Court of Appeal pointed out in HKSAR v Lui Siu Kei & Others[71]: the court should not speculate on possible defences or alternative inferences in the absence of evidence. Of course, evidence that supports the defence case does not necessarily have to come from the defence. There can be evidence presented by the prosecution that supports the defence case. However, in the present case, I do not notice at all that any of the evidence produced in court can support the possibility Mr Wong submitted, or can give rise to any doubt in the allegation that the prosecution made.

148.  The other ground of appeal that Mr Wong advanced was on the basis that section 12 of the Administrative Instructions was unconstitutional. He relied his argument in this regard entirely on the submissions of Mr Cheung. However, in view of the ruling I made on this issue[72], there is no more need to deal with this ground of appeal.

149.  The appeal lacks merit. The appeal of D3 against the conviction in the second charge is dismissed.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung, Barrister-at-law.

[1] Both the first and the third charges are contrary to section 20(b) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 of the Laws of Hong Kong.

[2] The second charge, contrary to section 19(b) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 of the Laws of Hong Kong.

[3] Both were represented by Mr Benjamin Chain of Counsel during the trial.

[4] Extracted from paragraph 2 of the Statement of Findings with slight re-arrangements.

[5] Extracted from paragraphs 5-8 of the Statement of Findings with slight re-arrangements.

[6] Extracted from paragraphs19-21of the statement of findings with slight re-arrangements.

[7] Cap 382A of the Laws of Hong Kong.

[8] (2005) 8 HKCFAR 229.

[9] See page 643, (2012) AC 621.

[10] The expression Mr Cheung used was “不合比例”. I will continue to use the expression “不相稱”, an expression that has been generally been used in the decided cases.

[11] See section 8(3) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382, Laws of Hong Kong.

[12] See Leung Kwok Hung v President of the Legislative Council (No.1)(2014) 17 HKCFAR 689, a judgment of the Court of Final Appeal.

[13] [2009] 2 HK C 100.

[14] Article 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, Laws of Hong Kong.

[15] (2005) 8 HKCFAR 229.

[16] See paragraph 138 of the judgment.

[17] See paragraphs 121, 129 and 139 of the judgment.

[18] Cap 382, Laws of Hong Kong.

[19] [2010] 3 HKLRD 371.

[20] [2012] 5 HKLRD 556.

[21] Emphasis added.

[22] Paragraphs 66-67 of Leung Kwok Wah.

[23] (1999) 2 HKCFAR 442, at 4561.

[24] See paragraph 20 of this judgment.

[25] [2010] 4 HKC 235. See paragraph 28 of this judgment.

[26] [2012] 5 HKLRD 556. See paragraphs 29-30 of this judgment.

[27] See paragraph 57 of Leung Kwok Wah.

[28] Paragraph 67 of Leung Kwok Wah, see paragraph 30 of this judgment.

[29] (2014) 17 HKCFAR 689.

[30] [1999] 181 D.L.R. (4th ) 463.

[31] See Kiss, “Permissible Limitations on Rights”, in Henkin (ed.), “The International Bill of Rights”, 1981, p.301 which was referred to in Ng Kung Siu.

[32] That is charge three in the present case: failing to behave in an orderly manner.

[33] See paragraphs 121-129 and 137-139 of Chow Nok Hang.

[34] (1999) 28 EHRR 603.

[35] Emphasis added

[36] See paragraph 20 of this judgment.

[37] (2002) 5 HKCFAR 381

[38] (2005) 8 HKCFAR 229.

[39] ‘Prescribed by law’.

[40] See paragraph 64 of this judgment.

[41] See page 49 of the appeal bundle. Slight re-arrangement has been made.

[42] (2006) 9 HKCFAR 574.

[43] (2013) 16 HKCFAR 837.

[44] See paragraph 83 above.

[45] (2013) 16 HKCFAR 837.

[46] See paragraph 6 of the judgment.

[47] See paragraphs 67-68 of the judgment.

[48] Cap 245 Laws of Hong Kong.

[49] (2012) 15 HKCFAR 16.

[50] See paragraphs 39-41 of this judgment.

[51] See the plan referred to in paragraph 99 of this judgment.

[52] See paragraph 1 of the judgment.

[53] See paragraph 33 of the judgment.

[54] See paragraph 39 of Chow Nok Hang.

[55] See paragraph 77 of Chow Nok Hang.

[56] This warning  relates to the offence under section 17(c) of the Ordinance.

[57] The appellants did not query the accuracy of the summary given in the statement of findings.

[58] See paragraph 24 of the statement of findings.

[59] Mr Wong based his submission on paragraph 20 of the statement of findings.

[60] Mr Wong pointed out that the time shown on the clip was 10:38:49.

[61] Mr Wong pointed out that the clip showed that the time was 10:39:01 when the message was being posted.

[62] (2005) 8 HKCFAR 216.

[63] See paragraph 127 of this judgment.

[64] See section 36(b) of the Offences against the Person Ordinance, Cap 212.

[65] (2010) 13 HKCFAR 142.

[66] [1987] HKLR 1221.

[67] [1985] QB 509

[68] HCMA 564/1999.

[69] See paragraph 5 of the statement of findings and paragraph 6 of this judgment.

[70] See paragraph 25 of the statement of findings.

[71] Paragraph 34 of CACC 446/2006.

[72] See paragraph 60 of this judgment.