HKSAR v. LEUNG KWOK WAH AND OTHERS

HCMA 54/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 54 OF 2012

(ON APPEAL FROM ESCC 1112/2010)

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J U D G M E N T

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The appeal by way of case stated

1.  This is an appeal by way of case stated pursuant to Section 105 of the Magistrates Ordinance.  The questions raised in the Case signed by the magistrate on 11 January 2012  are as follows,

“第一項：在裁決中聯辦大樓為私人物業或公有物業時，及在考慮控方是否能證明答辯人的行為相當可能導致任何人合理地害怕如此集結的人會破壞社會安寧，或害怕他們會藉以上的行為激使其他人破壞社會安寧時，本席有否適用正當的法律指引於本案的事實： ─

(i) 本席是否錯誤地把考慮局限於中聯辦大樓的性質，是屬私人物業抑或公有物業？；

(ii) 本席對案中關於各答辯人是否有權進入中聯辦處所的全部證據，有否作出充份考慮？；及

(iii) 本席沒有作出各答辯人均為擅自進入中聯辦處所的裁決。該項裁決是否任何合理的裁判官，在正確考慮案情和參照正當的法律指引後，可能達致的唯一裁斷？

第二項：有關本席在上述第9段作出的裁決，即答辯人與其他示威者在中聯辦庭院內參與集結，鑑於上述第21(c)段所列出的證供，本席有否犯錯？

第三項：在裁決控方是否能證明答辯人的行為相當可能導致任何人合理地害怕如此集結的人會破壞社會安寧，或害怕他們會藉以上的行為激使其他人破壞社會安寧時，本席把保安員摒除於考慮之外，因而裁定案發時現場沒有其他與案無關的第三者，是否正確？

第四項：在裁決控方是否能證明答辯人的行為相當可能導致任何人合理地害怕如此集結的人會破壞社會安寧，或害怕他們會藉以上的行為激使其他人破壞社會安寧時，本席是否錯誤地未有從保安員之角度考慮答辯人在當時： ─

(i) 明知而擅自進入中聯辦物業範圍；

(ii) 向中聯辦大樓推進；及

(iii) 對嘗試防止他們進一步推進的警員及保安員，加以抗拒？

第五項：本席在2010年12月20日的聆訊中，把告發撤銷的裁決是否正確？”

It can be seen immediately Question 5 does not by itself raise any substantive question of law.  Counsel did not suggest otherwise at the hearing.  It does not require any separate consideration from the other questions raised.

2.  As shall be shown below, the resolution of the remaining questions put to this court in the Case depends on the proper construction of Section 18 of the Public Order Ordinance Cap 245 [“POO”].  Most of the cases that have to be discussed in this judgment were in English.  Though the arguments before the court were principally conducted in Chinese, counsel also used English when referring to the cases.  In the circumstances, this judgment is written in English[1] and I will direct a translated copy of this judgment to be prepared for circulation to the Defendants at the same time of the delivery of judgment.

3.  In an appeal of this nature, the court is solely concerned with questions of law.  It is not the function of the court in this appeal to make finding of facts.  Unlike other kinds of appeal from magistrates, appeal by way of case stated is not a rehearing.  In general the court should not go beyond what has been set out in the Case which should be a self-contained document setting out all information necessary for the proper resolution of the issues raised by the Appellant, see Attorney General v Leung Chi-kin [1974] HKLR 269; Attorney General v Yau Ka-ping [1977] HKLR 76.  Those responsible for drafting the Case and the magistrate signing the Case should pay proper regard to what had been said in these cases as to how a Case should be prepared.  Guidance may also be derived from the experience on how the case stated procedure has been applied in other areas.  I have made some observations in the context of the use of the case stated procedure in tax appeals, see Lee Yee Shing Jacky v Board of Review HCAL 40 of 2008, 22 Feb 2011.

4.  Whenever a party considers that insufficient materials are set out in the Case, the proper course is to seek amendments of the Case instead of inviting the judge hearing the appeal to examine the evidence adduced at the trial to make up for the deficiencies.  This can be done under Section 107 of the Magistrates Ordinance.  The judge hearing the appeal can also exercise such power, see Section 109.  But the primary responsibilities rest upon the parties and their legal advisers to ensure all the necessary findings and all relevant information for the satisfactory consideration of the points of law raised in the appeal are set out in the Case. If there is disagreement between the magistrate and a party as to whether the Case should be amended in a particular manner, the matter can be resolved by the procedure under Section 112.

5.  Before the hearing of the present appeal, both the prosecution as well as the defence requested this court to have regard to materials other than those set out in the Case.  The prosecution invited the court to view the video recordings (produced as exhibits before the magistrate) and the defence invited the court to read certain parts of the transcripts of the trial.  After I made known my views on the proper role of the court in an appeal by way of case stated, these requests were withdrawn.  The appeal therefore proceeded strictly on the basis of what had been set out in the Case.

6.  The charge against the Defendants is in respect of an incident that happened on 25 December 2009 at No 160 Connaught Road West. On that day, the Defendants and other persons held a demonstration outside the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region [“the Liaison Office”].  Outside its building, the Liaison Office has a foreground which was enclosed by a wall with a gateway for access to Connaught Road West.  The demonstration initially took place outside the wall and the gate was closed.  At around 10:50 am, a vehicle left the Liaison Office and the gate was opened to let it get out.  Some protesters (including the Defendants) took the opportunity to move into the foreground (thus coming into the Liaison Office premises) whilst some security guards and police officers tried to stop them and asked them to leave.  The protesters insisted on moving closer to the building.  It developed into some pushing and towing and resulted in a melee.  Three persons were injured: a police officer, a security guard and the 1^st Defendant.

The Case Stated

7.  The magistrate did not set out specific findings in the Case as to what each of the Defendants did at each stage of the incident.  Though he recited the evidence adduced at the trial at paras 4 to 7, he did not indicate the extent to which those evidence was accepted.  As such, this court cannot assume that such summary of evidence is part of his factual findings.  This has ramifications on how this case should be disposed of in the event that this court takes a different view of the law from that of the magistrate.  After reciting the evidence, he said at paras 8 to 11 of the Case,

“8. 要證明答辯人干犯「參與非法集結」罪，上訴人需證明三項控罪元素，即： ─

(a) 答辯人於案發時參與一個集結；

(b) 答辯人曾作出擾亂秩序或挑撥性的行為；及

(c) 答辯人的行為，相當可能導致任何人合理地害怕如此集結的人會破壞社會安寧，或害怕他們會藉以上的行為激使其他人破壞社會安寧。

9. 就第一項控罪元素，本席裁定答辯人與其他示威者，乘中聯辦鐵閘未能及時關上之機，進入庭院進行示威。由於他們無法預知將有車輛自中聯辦庭院駛出，亦無法估計中聯辦人員會來不及關上閘門，故他們就是次行動明顯並無事前協議。然而，縱然其行動沒有組職，基於各人進入中聯辦庭院時目標一致，本席裁定答辯人與其他示威者在中聯辦庭院內參與集結。

10. 就第二項控罪元素，本席裁定，案中的證供顯示，答辯人和其他示威者竭力走到中聯辦辦公大樓玻璃門前，而警員和保安員，則盡力把他們從玻璃門拉走或推走。在推撞期間，雙方發生肢體碰撞。

11.       雖然各控方證人均表示擔憂示威者會進入中聯辦大樓，對財物造成破壞，故阻止他們靠近玻璃門位置；但根據證供，本席裁定他們並無進入大樓的意圖。因為當部份示威者，包括第五答辯人到達玻璃門的時候，玻璃門當時仍未來得及關上，但是各人並沒有進一步進入中聯辦大樓內，相反，他們轉身背向玻璃門和舉起標語大叫口號。換句話說，證供顯示他們根本沒有意圖進入中聯辦大樓內。但由於當時事發突然，保安員和警員都大為緊張，所以本席相信保安員和警員是沒有辦法在當時當地作出這樣的一個判斷，所以本席認為他們的擔心雖然沒有事實的基礎，但這是可以理解的。但是這並不等於保安員和警員的阻撓的行為是合法的，正如答辯人指出，如果中聯辦是官方的機構，中國公民包括香港的市民是有權在不需要事先批准的情況下進入，這樣保安員和警員就不應該作出無理的阻撓，尤其如果中聯辦是公眾的地方，這樣，基本法和人權法就保障了公眾人士在公眾地方示威的權利，而不應該受到不合理或是不合法的阻撓。因此，中聯辦究竟是不是一個公眾的地方，抑或是一個私人的地方呢？這一點對於本案就變得相當重要。”

8.  At paras 12 to 17 of the Case, the magistrate set out the parties’ respective contentions on the nature of the premises of the Liaison Office.  At para 14 he explained why he did not act upon the evidence of PW4, the head of the administrative and financial department of the Liaison Office,

“14. 然而，由於梁先生作供時曾表示他是以個人身分作供，而控方亦未有進一步提供文件或其他證據，證明梁先生得到中聯辦授權作供， 而他亦非中聯辦的最高負責人或主要官員，故本席未能單靠其證供，裁定中聯辦為私人物業。”

9.  His conclusion on disorderly conduct was set out at para 18,

“18. 本席認為，倘若中聯辦是中央政府駐港的機構，則其地位或許和其他政府機關(如法院大樓及入境事務處大樓)一樣，市民有權自由進入該處所， 而毋須事先批准。當然，本席亦明白並非所有政府機構都對公眾開放。如果中聯辦並非私人地方，答辯人在事發時就有權不需事先批准而進入中聯辦的庭園，而他們在庭園內的示威行動，其權利應受基本法及人權法所保障。本席裁定，在本案中，示威者與警員及保安員的衝突，是因警員和保安員對示威者作出阻撓所致，所以不能夠歸咎答辯人作出控罪所指的擾亂秩序或挑撥性行為。因此本席裁定，上訴人未能證明答辯人曾作出擾亂秩序或挑撥性的行為。”

10.  The magistrate then considered the parties’ respective submissions on reasonable fear of breach of the peace in light of his finding at para 19, which is as follows,

“19. 假若本席就中聯辦是否公眾地方一事之裁決有誤，法庭仍需就第三項控罪元素作出裁斷。證供顯示，當答辯人及其他示威者進入中聯辦庭院後，一些警員及記者亦緊隨進入，而保安員不久亦已關上鐵閘。故此，案發時，庭院內只有答辯人與其他示威者、保安員、警員和記者，並無公眾人士。”

11.  His conclusion is set out at para 22,

“22. 本席參閱了案例HKSAR v. Yeung Kin-ping & others [1997] HKLRD 1008，接納破壞社會安寧的罪行並不一定在公眾地方發生，但控方須提出證據，證明現場有無辜的第三者或與案中行動無關的公眾人士在場，才能證明他們的安危相當可能受到威脅，而導致他們合理地害怕社會安寧會被破壞。當然，如果控罪發生在公眾地方，就算沒證供顯示有其他公眾人士在場，本席都可以作出合理的推斷，由於案發在公眾的地方，所以有可能案發的時候有其他公眾人士在場或者經過。但是如果控罪是發生在私人地方的話，本席就需要有在這一方面的證供或者有事實的基礎，讓本席可以作出合理和唯一的推斷。在本案中，當時庭院的大閘已經關上，只有與案相關的人士，包括答辯人、其他示威者、保安員和記者在場，根本沒有無辜的第三者或與案中行動無關的公眾人士在場，故本席認為，答辯人的行為，根本不會相當可能導致任何人合理地害怕如此集結的人會破壞社會安寧，或害怕他們會藉以上的行為激使其他人破壞社會安寧。”

12.  According to the Case, the magistrate dismissed the charge on the bases of his conclusions at paras 18 and 22.

13.  The focus in this appeal is whether the magistrate erred in law in terms of the questions put to this court.

The offence of unlawful assembly under Section 18

14.  Before I address the specific questions raised in the Case, it is useful to remind oneself of the ingredients of the offence under Section 18 of the POO.

15.  Section 18 is in the following terms,

“(1) When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly.

(2) It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid.

(3) Any person who takes part in an assembly which is an unlawful assembly by virtue of subsection (1) shall be guilty of the offence of unlawful assembly and shall be liable –

(a) on conviction on indictment, to imprisonment for 5 years; and

(b) on summary conviction, to a fine of $5000 and to imprisonment for 3 years.”

16.  The ingredients of the offence are set out in sub-section (1).  The magistrate analyzed it by reference to three ingredients at para 8 of the Case.  Subject to what I shall say below, I am happy to go along with analyzing the offence under those three ingredients,

(a) Assembled together;

(b) Conduct themselves in a disorderly or provocative manner[2];

(c) Intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace.

17.  On the first ingredient, I am of the view that the way in which it was stated at para 8(a) of the Case does not sufficiently reflect the requirement of joint responsibility for the conducts which are put forward as the second ingredient of the charge.  The sub-subsection refers to “conduct themselves”, not simply “assembled together”.  In The Queen v To Kwan-hang, [1995] 1 HKCLR 251 at p 254, Macdougall V-P emphasized this additional aspect of the offence,

“… where three or more persons conduct themselves in one of the manners described in the sub-section, it is they, not other members of their group who do not so conduct themselves, who became an unlawful assembly.”

18.  In other words, the unlawful assembly is made up of those conducting themselves in the prescribed manner.  If there was only one person out of those assembled together who conducted himself in the prescribed manner, he could not be guilty of this offence.

19.  Further, if more than three persons amongst those assembled together conducted themselves in the prescribed manner, it is still necessary to consider whether in so conducting themselves they could be described as acting as an assembly.  The sub-section provides for this consideration when it stipulates that these people “are an unlawful assembly”. This view is reinforced by the third ingredient (the so-called breach of the peace ingredient, as elaborated below) of the offence.  In one possible limb of this ingredient, the question that has to be asked is whether the conducts of the defendants are “likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace”.  Hence, the conducts of the defendants had to be assessed together to see whether this criterion can be satisfied.  There must be sufficient nexus between the conducts of these defendants to justify having them considered together.  And the fear required is that such persons so assembled, viz acting together, will commit a breach of the peace.

20.  I will call this the corporate nature of the offence under Section 18.  This corporate nature is one of the distinguishing features between this offence and the offence under Section 17B of the POO.

21.  Thus, if three persons in a lawful assembly committed acts of the prescribed nature at different parts of the place of assembly[3] for different purposes, sparking off different incidents, involving and affecting entirely different mix of persons, there would not be sufficient nexus to turn these independent acts into an unlawful assembly of those three persons.  If the event takes place at a public place, they may each be guilty of an offence under Section 17B.  But these would be separate offences, and the fact that they have been in the same lawful assembly prior to their respective commission of the Section 17B offences would not, without the necessary nexus, turn those offences into one single offence of unlawful assembly under Section 18. 

22.  This was highlighted by James LJ in R v John McKinsie Jones (1974) 59 Cr App R 120 at p 127,

“The ingredients of the offence [of unlawful assembly under the common law] are (i) the actus reus of being or coming together — the assembly, and (ii) the mens rea involved in the intention of fulfilling a common purpose in such a manner as to endanger the public peace. Those ingredients have to be co-existent.”

This was said in respect of the common law offence.  In the context of an offence under Section 18, there is a need to adjust the mens rea aspect to take account of the objective limb of the third ingredient discussed below.  However, I consider that the requirement of having a common purpose in acting in the statutorily prescribed manner remains good law in dealing with a charge under Section 18.

23.  I need to come back to this aspect of the offence when I address Question 2 in the Case.

24.  On the second ingredient, I will start with the observation that the statute refers to the character of the conduct, not the legality of the purpose behind the conduct.  Indeed, the same point has been made with regard to the character of the assembly as opposed to the purpose of the assembly in Section 18(2).  This point can be best illustrated by The Queen v To Kwan-hang, supra.  That case concerned the charging of police cordon by a group of protesters.  The defendant protesters regarded the cordon to be unlawful (which was later held by the Court of Appeal to be lawful) and as such infringed their right of peaceful assembly.  Macdougall VP held that the police had a duty (and impliedly the power) to preserve public peace and prevent injury to life and property.  Therefore, in the exercise of the power of crowd control with regard to a demonstration, “a balance had to be achieved between allowing a protest to be made on the one hand and ensuring safety to persons and property on the other.” His Lordship also alluded to the following as a relevant consideration at p 257,

“The emotional climate that undoubtedly exists when protesters assemble in large numbers inherently has a potential for generating an outbreak of violence. The risk that unruly elements may be present with the very object of fomenting violence cannot be overlooked.”

“… had a violent incident then been sparked off, either by over-emotional protesters or unruly elements bent on creating a disturbance, the police would have been gravely handicapped in their efforts to restore order.”

25.  On the argument that the protesters were exercising their right of assembly, Macdougall VP rejected it at p 257,

“I find no merit in the contentions that the protesters were provoked by the District Commander’s decision into rushing the police line in order to enforce their perceived right to assemble wherever they wished, and that they exercised only reasonable force in so doing. The protesters had no right to resort to violence. Moreover, the fact that 31 police officers were injured in the rush on the police line clearly refutes any suggestion that reasonable force was exercised by the protesters.”

Litton JA (as he then was) agreed with the judgment of Macdougall VP.  Bokhary JA (as he then was) said, at p 262,

“The fact that I have entertained the question of whether or not the cordon in this case was lawful should not be taken as implying that I am deciding that storming an unlawful police cordon is something which can be done with legal impunity.”

26.  Thus, even if the court were to come to the conclusion that the cordon was not lawful, it does not mean that the conducts of the protesters in charging it was not disorderly or provocative.  Public order and public peace can still be disturbed, people can still be injured and property can still be damaged even though such protesters perceived (perhaps justifiably) that they were acting in the furtherance of a just cause.  The law does not give a licence to such protesters to act with impunity without regard to the law and order of the community at large just because the police may have erred in the judgment as to how the balance should be struck in a difficult situation occasioned by a demonstration. 

27.  In To Kwan-hang, Bokhary JA said at p 261,

“[The magistrate] was likewise entitled so to conclude, as he did, that, in rushing the cordon as they did, the persons forming that assembly had conducted themselves in a disorderly manner. That, too, is obvious.”

28.  In Campbell v Adair [1945] SC(J) 29, “disorderly” was said to be “a word of very wide comprehension … which indicates less aggressive conduct than would be required to constitute a breach of the peace … The question is not whether the conduct of the appellant provoked disorder by leading to disorderly action on the part of others who were present and witnessed his conduct.  The question is whether he himself acted in a manner which can be described as disorderly.”

29.  In HKSAR v Wong Ying Yu [1997] 3 HKC 452, the following conducts were held to be disorderly conduct: a group of protesters moved away from a pre-designated demonstration area and proceeded to the vehicle entrance of the Convention and Exhibition Centre to continue with their protest,

“Their activities included displaying banners and placards, shouting slogans, hitting drums and performing a street drama. Some of the demonstrators were blocking the driveway.

The security staff … then requested the demonstrators to move over to the pavement so that they would not be blocking the traffic. They refused. The security staff then moved in and forcefully tried to remove the demonstrators who put up vigorous resistance. The police who were standing by in the vicinity throughout this time moved in to assist the security staff. The scene rapidly degenerated into a melee …”

The finding of the magistrate as to disorderly conduct was as follows and it was upheld on appeal, (see p 455E)

“In my view the sitting down on the road, the standing in the road and the standing on the pavement blocking it was disorderly conduct. It blocked access to the entrance for pedestrians and exit for vehicles.”

30.  In the recent case of香港特别行政區訴招顯聰HCMA 163 of 2012, 14 June 2012, a case in which demonstrators threw a plastic bottle of powder and a bag of powder into the foreground of the Liaison Office in a demonstration on 28 December 2010, Derek Pang J affirmed the magistrate that such conducts were disorderly.

31.  In the yet more recent case of 香港特别行政區訴周諾恆 HCMA 193 of 2012, 20 July 2012, in the context of another protest case, Barnes J adopted the judgment of Beeson J in HKSAR v Cheng Siu Wing HCMA 619 of 2003, 5 Sept 2003 as regards the meaning of disorderly conduct.  Paras 42 and 43 of the judgment of Beeson J are relevant,

“42. ‘Disorderly conduct’ is not defined in the Public Order Ordinance so the words are to be treated as words in everyday use and given their normal meaning. The relevant entry for ‘disorderly’ in The New Shorter Oxford Dictionary refers to ‘unruly or offensive behaviour’ or ‘violating public order or morality’. It must be a question of fact for the trial court as to whether conduct is characterised as disorderly.

43. The case of Chambers and Edwards v DPP (apparently unreported) is discussed in [1995] Crim LR 896 as to what disorderly conduct means in s 5(1) of the Public Order Act 1986. The section refers to disorderly behaviour in the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. There need be no element of violence whether present or threatened; it covers conduct which is not necessarily, threatening, abusive or insulting.”

32.  These cases show that in considering whether a person conducts himself in a disorderly manner for the purpose of the POO (whether in the context of Section 17B or Section 18), the fact that he is exercising his freedom of assembly should not call for special or exceptional consideration.

33.  At the same time, it must be emphasized, as mentioned in the course of hearing, the mere fact that a person conducted himself in a disorderly manner is not an offence under the POO, whether under Sections 17B or 18.  The other ingredients of the respective offence have to be established before the offence is proved.  This was illustrated by the acquittal in 招顯聰. 

34.  I make these observations by way of general comments instead of having special regards to the facts of this case.  I shall discuss the implications on the present case specifically when I address Question (1) in the Case. 

35.  I turn to the third ingredient.  It is more complicated because different permutations are provided for in the statute.  First, it could be a case where the conducts of a defendant were intended by him or her to generate the stipulated fear (the subjective limb).  Alternatively, it could be a case where the conducts cause any person reasonably to have such fear (the objective limb).  The charge here, as set out in para 1 of the Case, is confined to the objective limb.

36.  Second, the stipulated fear also has different limbs, either

(a)     the persons so assembled will commit a breach of the peace; or

(b)     the persons so assembled will by such conduct provoke other persons to commit a breach of the peace.

Both limbs are relied upon in the charge in the present case.

37.  In the context of the objective limb of the third ingredient, the statute refers to any person reasonably having such fear. It must be a person present at the scene.  His fear has to be reasonable.  It should be noted that the fear is not about fear as to the person’s own safety or security.  Rather, it is a fear that one way or another a breach of the peace will result.  Thus, it is a fear for the deterioration of the event into a breach of the peace, a state of affairs which the common law provides that the power of arrest will become exercisable.  In other words, the word “fear” in this context means an apprehension.

38.  On the first limb of fear, Section 18 refers to a breach of the peace committed by the persons who conducted themselves in the manner prescribed under the second ingredient.  They are the persons “so assembled”.  As observed in Campbell v Adair, with reference to conduct which would constitute the second ingredient, the conducts need not amount to a breach of the peace.  But it may be that in the circumstances of the case an objective bystander would reasonably fear that things might go for the worse and these persons would continue to behave so badly or rowdy to become a breach of the peace.

39.  On the second limb of fear, Section 18 refers to a breach of the peace committed by another group of persons.  Those persons are not the persons who originally conducted themselves in the manner prescribed under the second ingredient.  It refers to other persons present at the scene and provoked by the conducts of “the persons so assembled”.  The fear is the reasonable fear of a third person that those provoked would respond by conduct which amounts to a breach of the peace.  On this limb, three different categories of persons are involved: the original group who are “the persons so assembled” (there must be three or more of them); a second group (actually it could only be one person) who is provoked by the first group and may respond by actions which amount to a breach of the peace; a third person or group of persons who harboured the reasonable fear.

40.  It must be emphasized that Section 18 is very much a preventive measure.  There is no need for a breach of the peace to have occurred.  It is sufficient that a person present at the scene reasonably fear that it would occur if no action is taken in the meantime to prevent it.  The law is there to put a stop to a deteriorating situation.

41.  As regards breach of the peace, the test in R v Howell [1982] QB 416 at p 427 is often cited and applied in Hong Kong.

“… there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”

The freedom of assembly and freedom of demonstration

42.  Article 27 of the Basic Law provides that Hong Kong residents shall have freedom of assembly, of procession and of demonstration.  This Article has to be read together with Article 39 of the Basic Law which provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law and the restrictions shall not contravene, amongst other things, the ICCPR as applied to Hong Kong.

43.  Likewise, such freedoms are protected by the Hong Kong Bill of Rights [“HKBoR”].  Article 17 of the HKBoR implemented Art 21 of the ICCPR in Hong Kong and protects the right of peaceful assembly.

“The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

44.  Article 16(2) and (3) of the HKBoR implemented Art 19 of the ICCPR and protects the freedom of expression, under which the right to demonstrate is subsumed.

“(2) Everyone shall have the right to freedom of expression …

(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.”

45.  As these are freedoms protected by both HKBoR and the Basic Law, the permissible restrictions are those within the scope of the HKBoR, see Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at para 26.  

46.  The constitutionality of Section 18 in the context of the HKBoR was upheld by the Court of Appeal in The Queen v To Kwan-hang, supra.  Thus, according to the principle set out in Gurung Kesh Bahadur, Section 18 is also a permissible restriction in respect of the rights under Article 27 of the Basic Law.

47.  There is no challenge as to the constitutionality of Section 18 in this case, whether before the magistrate or this court.

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

“… 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….”

49.  A Cheung J briefly referred to the exercise of the right of assembly in public places or places of a public character at paras 38 to 41.  He distinguished Police v Beggs [1999] 3 NZLR 615, a case where a protest took place in Parliament grounds and the New Zealand High Court applied a test of reasonableness to determine whether the eviction process was consistent with the right of peaceful assembly protected by the New Zealand Bill of Rights.  As can be seen from the discussion in the judgment in Au Kwok Kuen of overseas cases, there is a spectrum in terms of the character of a place: private residential property, private commercial building, large shopping mall or shopping centre where the public had been invited to congregate freely and as such can be said to have acquired a public character, buildings used by the Government which are not open to the public, buildings used by the Government which are open to the public only upon application (as in the case of the Parliament grounds in Beggs) and Government buildings or premises which are generally open to the public without any application.  Different considerations apply with regard to different places in this spectrum.  It is not simply a dichotomy between public places and private properties.

50.  Whilst there is a positive duty on the part of the Government (including the police) to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully (see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229), there is also a duty on the part of the Government to take reasonable and appropriate measures to protect the personal safety and property of other citizens who might be affected, see Au Kwok Kuen para 74 and the recent judgment of this court in T v Commissioner of Police HCAL 102 of 2011, 16 July 2012.  Public order and public safety must be weighed in the balance.

51.  This is the position even if the right of assembly and the right to demonstrate are exercised at public places at the very end of the spectrum, see T v Commissioner of Police, supra, a case of demonstration which took place on a street.  In this connection, Strasbourg jurisprudence is to the same effect, see G v Germany (1989) 60 DR 256 (blockade of public road leading to a barrack); G v Norway (1984) 6 EHRR SE 357 (Parliament ground).  Recently, the English Court of Appeal upheld decisions to evict protesters occupying public places for demonstrations, see City of London Corp v Samede [2012] 2 All ER 1039 (camping by the Occupy Movement at St Paul’s Cathedral churchyard); Mayor of London v Hall [2011] 1 WLR 504 (protest camp on Parliament Square Garden).

52.  G v Germany, supra is a case where a demonstrator participated in a blockade of a road leading to U.S. barracks in Stuttgart by way of protest against nuclear arms.  He was convicted of an offence of unlawful coercion under German law.  He complained that the conviction violated his right to freedom of peaceful assembly as guaranteed by Article 11 of the European Convention which is in substance similar to Article 17 of the HKBoR.  The Commission rejected his complaint as manifestly ill-founded.  It said at p 263,

“The Commission considers that the right to freedom of peaceful assembly is secured to everyone who organizes or participates in a peaceful demonstration. The notion of ‘peaceful assembly’ does not, however, cover a demonstration where the organizers and participants have violent intentions which result in public disorder….”

The Commission found that the applicant had not been actively violent in the course of the sit-in concerned and as such the Article was engaged.  The restriction imposed by the German law needed to be justified and the Commission found it justified.

“… in the circumstances of the present case, the applicant’s conviction for having participated in a sit-in can reasonably be considered as necessary in a democratic society for the prevention of disorder and crime. In this respect, the Commission considers especially that the applicant had not been punished for his participation in the demonstration of 12 December 1982 as such, but for particular behaviour in the course of the demonstration, namely the blocking of a public road, thereby causing more obstruction than would normally arise from the exercise of the right of peaceful assembly. The applicant and the other demonstrators had thereby intended to attract broader public attention to their political opinions concerning nuclear armament. However, balancing the public interest in the prevention of disorder and the interest of the applicant and the other demonstrators in choosing the particular form of sit-in, the applicant’s conviction for the criminal offence of unlawful coercion does not appear disproportionate to the aims pursued.”

53.  In Mayor of London v Hall, supra, Lord Neuberger MR put the point in a different way from that of A Cheung J.  At para 37, His Lordship said,

“37. The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation. Accordingly, the defendants' desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long-term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11.”

54.  But it does not mean that the protesters have an absolute right in choosing the place and the manner in which they demonstrate for Lord Neuberger continued at para 38,

“Having said that, the greater the extent of the right claimed under article 10.1 or article 11.1, the greater the potential for the exercise of the claimed right interfering with the rights of others, and, consequently, the greater the risk of the claim having to be curtailed or rejected by virtue of article 10.2 or article 11.2.”

55.  In the subsequent case of City of London Corp v Samede, supra, another case of occupation of property which has a public character, Lord Neuberger adopted a test not dissimilar to the “test of reasonableness” in Police v Beggs, supra.  At para 39, the Master of the Rolls said,

“… the answer to the question [whether the interference with the defendants’ rights would be lawful, necessary and proportionate] is inevitably fact-sensitive, and will normally depend on a number of factors. In our view, those factors include (but are not limited to) the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.”

56.  Coming back to local authorities, the Court of Final Appeal in Yeung May Wan v HKSAR (2005) 8 HKCFAR 137 applied a test of reasonableness in assessing whether a demonstration taking place at a highway or street has crossed the mark to constitute an offence of obstruction of public place.  At para 44, the constitutional protection to the right to demonstrate was emphasized,

“Where the obstruction in question results from a peaceful demonstration, a constitutionally protected right is introduced into the equation. In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction. Whilst the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.”

57.  These are cases about peaceful assembly and peaceful expression of opinion.  Even in such context, these cases show that there is no absolute right to demonstrate even at public places or premises of a public nature.  Section 18 is to address situations which, unless preventive actions are taken, are likely to develop into a breach of the peace.  Breach of the peace, as we have seen, involved harm to other persons or damages to properties of others or a fear of such consequences.  The constitutional rights to protection of persons and properties are therefore engaged.  These must be weighed in the balance in drawing the legitimate lines for the exercise of the rights of peaceful assembly and demonstration.

58.  Adopting a similar approach as in Yeung May Wan v HKSAR, in the assessment of whether the conducts of the defendants would cause a reasonable person to fear that they would commit a breach of the peace, one must not apply that objective test in a manner that would unduly impair the ability to exercise the constitutional rights of peaceful assembly and demonstration. However, when that line has been crossed, Section 18 has to be applied to stop a deterioration of an often highly emotionally charged assembly into a serious disruption of law and order.

Question 1: whether the Liaison Office is a public or private premises

59.  Three sub-questions were raised in the Case under this head and the magistrate certified the questions as being raised in the context of both the second and the third ingredients of the offence.  I should explain how the questions arose in relation to the two ingredients.

60.  For the second ingredient, the magistrate explained at para 11 of the Case why the question whether the Liaison Office is a public or private building was important in this case.  He was of the view that if the Liaison Office was a public place, Chinese citizens (including Hong Kong citizens) should be entitled to enter without any prior permission and the police and the security guards should not have prevented them from doing so.  He considered that the exercise of the Basic Law and human rights of demonstrating at a public place should not be subject to unreasonable restrictions.

61.  After setting out the submissions of the parties, the magistrate recorded his conclusions at para 18 of the Case.  Reading the paragraph as a whole, the magistrate’s conclusion was that the Liaison Office was not a private premises and the right of the Defendants to demonstrate there should be upheld.  He was of the view that the melee was caused by the actions of the police and security guards to prevent the protesters from continuing to demonstrate there instead of the conducts of the Defendants.  He concluded the paragraph by holding that the prosecution failed to establish that the Defendants had conducted themselves in a disorderly or provocative manner.

62.  For the third ingredient, the magistrate was proceeding in the alternative to his ruling on the second ingredient (see para 19 of the Case).  Thus, he considered the implications flowing from the position that the Liaison Office was a private premises at para 22 of the Case in the application of the principle set out in HKSAR v Yeung Kin-ping [1997] HKLRD 1008.  He considered that in that scenario (viz the Liaison Office was a private premises), the third ingredient cannot be satisfied for want of presence of innocent third parties.

63.  It would be more convenient to discuss the implications of these questions in respect of the third ingredient when I deal with Questions 3 and 4.  At this juncture, I shall focus on the second ingredient.

64.  On the first sub-question, having regard to what I said above in relation to the second ingredient in the context of the exercise of the right to demonstrate and the permissible scope of restriction on the constitutional rights of peaceful assembly and demonstration, I am of the view that the magistrate erred in law in holding that the Defendants did not conduct themselves disorderly simply because the Liaison Office was not a private premises.

65.  At paras 11 and 18, in considering the second ingredient, the magistrate effectively confined himself to the question whether the Liaison Office was a private premises.  His reasoning was that once he reached the conclusion that the Liaison Office was a premises of a public character, the Defendants had the right to enter the premises and to demonstrate at the foreground.  And the police and security guards should not try to prevent them from doing so.  As such, whatever happened afterwards was not attributable to the faults of the Defendants.

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

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

68.  Thus, the more important question is whether the foreground of the Liaison Office, even assuming it were a premises with a public character, was generally open to the public.  The magistrate failed to address that question independently.  He assumed that the answer to that question had to be affirmative once he found that the Liaison Office was a premises with a public character.

69.  Further, even assuming for the sake of argument that the Defendants were entitled to enter into the foreground to hold their demonstration there, it does not mean that in so doing they had not conducted themselves in a disorderly or provocative manner.  The magistrate erred in law in assuming otherwise.  Irrespective of the lawfulness as to the exercise of the right of demonstration at the foreground, the magistrate should have considered the evidence on the conducts of the Defendant after they had entered the premises and made findings of fact as to how they had conducted themselves.  Upon making such findings, he should then assess the quality of these conducts to see whether the statutory criteria under Section 18 have been satisfied.  The only difference stemming from the entitlement to demonstrate in the foreground is the defence of self-help.

70.  However, as discussed above, even if the Defendants were entitled to resort to self-help to reinforce their right to demonstrate at the foreground, there is still the question whether they had used excessive force in the incident, see To Kwan-hang.

71.  As recited in the Case, there was evidence before the magistrate that the police and the security guards had requested the Defendants to leave and they had refused to heed.  They did not stop right after they had entered into the foreground.  Instead, they had pushed towards the glass door entrance of the building.  Though the magistrate found that the Defendants did not have the intention of entering into the building, he still needed to consider whether he accepted such prosecution evidence and, if accepted, whether such conducts amounted to the use of more than reasonable force for the exercise of the right of demonstration at the foreground.

72.  According to the Case, there was also evidence that after some protesters had come into the foreground, some police officers and security guards formed a defence line to prevent the protesters from moving further towards the building.  The magistrate did not say whether such evidence is accepted.  However, if it is accepted, he should have asked: if the conducts of the Defendants were simply in furtherance of the exercise of the right of demonstration at the foreground, why was it necessary for them to push against such defence line?  In so pushing, did the Defendants not use more than reasonable force to facilitate their exercise of right of demonstration?  In respect of the quality of the conducts, was there any material difference between such conducts and the charging of police cordon in Au Kwok Kuen and To Kwan-hang?

73.  Therefore, there are material matters which the magistrate failed to consider by reason of his error in law in focusing on the public character of the Liaison Office.

74.  The answer to Question (1)(i) is therefore “yes”.

75.  Had the magistrate applied his mind properly to consider whether the Defendants were entitled to enter into the foreground, he should have appreciated that in addition to the evidence of PW4 (which he refused to act upon on its own), the evidence is corroborated by the circumstantial evidence.  The foreground was enclosed by a wall and access to it was through a gateway.  The gate was closed at all times until it was opened to let the vehicle leave the premises.  This, in my view, is a very telling piece of evidence showing that members of the public were not freely admitted into the premises.  In this respect, the foreground was clearly different from areas in the court building or the immigration building where members of the public were allowed to enter in general.  The analogy drawn by the magistrate at the first sentence of Para 18 is plainly wrong.

76.  Likewise, the magistrate’s acceptance of the submission of the defence that Chinese nationals, including Hong Kong citizens, had the right to enter the Liaison Office as it is an official agency of the Chinese Government is without basis.  Mr Lee SC, appearing on behalf of the 1^st to 5^th Defendants, accepted that there was no evidence supporting this proposition.  However, counsel submitted that there is insufficient evidence supporting the prosecution case that the foreground was not open generally to members of the public.  The only evidence, counsel said, was that emanated from PW4 which the magistrate was entitled to reject.

77.  I do not agree with this submission.  As explained, there was strong circumstantial evidence that the foreground was not open to the public generally.  The magistrate should have considered the evidence of PW4 in that light.  He had failed to do so.  The case of the defence, based on the function of the Liaison Office as shown on its website and in Articles 27 and 41 of the Constitution of People’s Republic of China, does not even begin to address the question whether the foreground of the Liaison Office was open to public generally.  With respect, the reliance by the Defendants on these materials was completely misconceived.  In any event, it is not clear from the Case whether the magistrate had accepted these submissions.

78.  The answer to Question (1)(ii) is therefore “yes”.

79.  Since the magistrate had not clearly set out in the Case as to the evidence he accepted or rejected, and he has misdirected himself on law as to the questions that he should consider, I am not sure if I have got a summary of all relevant evidence before me.  In such circumstances, since I would not be able to draw conclusions on all the relevant facts in any event, I do not deem it helpful to deal with Question (1)(iii).

Question 2: assembled together

80.  This question was raised at the request of the Defendants.  The relevant finding by the magistrate is at para 9 of the Case.  He was of the view that the Defendants did not have any prior agreement and was unorganized as to what they would do after entering into the foreground.  He however found that they were acting with a common objective and therefore they were assembled together at the time of the incident. 

81.  In his written submissions, Mr Lee relied on what was set out at para 21 of the Case to contend that the magistrate had erred in law.  That paragraph is as follows,

“21. 第一、第二、第四、第五答辯人陳詞指出：

(a) 致於擾亂性的行為，證供顯示(1)安民與中聯辦；(2)安民與警方和(3)中聯辦與警方，完全沒有因應警方是否有權進入中聯辦履行職責而達致任何協調或共識。再者，要評估答辯人的行為是否構成擾亂性行為，必需聽其言，觀其行。答辯人在庭院裡高叫口號，但沒有證據證實他們有衝入中聯辦大樓的意圖；

(b) 示威者以及警方雙方也沒有任何計劃進入中聯辨後會採取什麼行動，而只是見步行步。示威者以及警方，均是下意識地向中聯辦大樓的玻璃門邁進。因此，在這一群散亂的示威者中，看不到任何共同目的；

(c) 法律上，要有至少三個人或以上作出擾亂性行為才能構成“非法集會”。從答辯人沒有組織的大前題下，控方並沒有任何實質理據，令本席裁定任何一位答辯人有意圖和至少兩位其他答辯人或示威者一同進入中聯辦庭院內作出擾亂性行為。在評估答辯人有沒有犯罪意圖時，本席必需考慮整個事件發生的情況，特別是以下數點∶—

(i) 整個過程只歷時約兩分鐘；

(ii) 汽車從中聯辦駛出，事發突然，亦不在示威者或警方預料當中；

(iii) 雙方其後的行動變得混亂；

(iv) 雙方沒有任何一人能控制自己的陣營；

(v) 有人倒地後，騷亂立即平息；

(vi) 騷亂平息後場面立即回復平靜；及

(vii) 雙方都互相存有誠實但嚴重的誤會。

     (d)   因此，控方提出的證供只能反映雙方都有誤會，並沒有任何實質證據能證明答辯人的犯罪意圖。”

82.  The magistrate accepted submission (a) but rejected (b).  He found that the Defendants had a common objective after they entered into the foreground.  Unfortunately, he did not spell out what their common objective was.  Obviously, it could not be entering into the building because he had expressly found otherwise.  This court cannot speculate.

83.  As regards submission (c), I have already explained above the corporate nature of the offence under Section 18.  The necessary nexus can be satisfied by a common purpose.

84.  Whilst there is evidence capable of establishing the necessary nexus, I am handicapped by the absence of clear findings of fact and the identification of common objective as found by the magistrate.  Without such information, I am simply unable to answer Question 2.

85.  One option is to direct the magistrate to amend the Case by stating what he found to be the common objective and set out the relevant findings of fact pertaining to such conclusion.  Whether this course should be taken may depend on how the appeal is to be disposed of.  For reasons set out below, I intend to hear submissions from the parties before I reach a decision.

Questions 3 and 4: innocent third parties and breach of the peace

86.  I can consider these two questions together.  Not only did the magistrate exclude from his consideration of the third ingredient the security guards, he also excluded the other protesters who had also entered the foreground and news reporters.  Though he did not expressly refer to them, he obviously also did not consider the perception of the police.

87.  It appears from para 22 of the Case that the magistrate examined the attribute of innocent third parties as the necessary quality of the person who held the reasonable fear under the objective limb of the third ingredient.  His reasoning was that since there was no such person present at the material time (because by then the gate had been closed), this limb cannot be established.

88.  The magistrate derived this requirement of innocent third parties from HKSAR v Yeung Kin-ping, supra.  The relevant part of the judgment of Stock J (as he then was) is at p 1020,

“There is, as a matter of law, of course no need to call third parties to say that they were in fact afraid that a breach of the peace might occur (see R v To Kwan Hang & Another [1994] 2 HKC 293), although that presupposes that there are or are likely to be third parties about. For an incident in a public place, “it is probably unnecessary to prove that any innocent person was present” (see Smith & Hogan, Criminal Law, 5th edn., p.733); that, no doubt, because the character of the place is such that the presence or likely presence of others is assumed. The magistrate did not, in the circumstances of this case, require any member of the Law family to testify that he or she apprehended a breach of the peace. That inference cried out from the other established facts.

However, the concept that there needs to be present or perhaps within earshot an innocent third party is drawn from the decision in Kamara & Others v DPP [1973] 2 All ER 1242. …”

Further down the same page,

“In other words, these offences are not intended to cover the situation where only the protagonists are present or are likely to be present or within earshot.

In my judgment, the same principle applies to a s.18 charge. If the only persons present or likely to be present to witness or to hear the insulting or disorderly conduct or to be within earshot or so placed as to be caused apprehension or fear are, apart from the disorderly group whose conduct is the subject of the charge, others who are themselves engaged upon unlawful conduct which occasions or contributes to the unruly conduct which is the subject matter of the charge, then, in my judgment, no offence under s.18 is committed.”

89.  It should be noted that the protagonists present in that case was the family members of the debtor who, as suggested by some evidence, were engaged in the unlawful conduct in terms of preventing the creditor from leaving and one of them started the fight, see p 1019 H to J and p 1014 A to C.  It was in that context that Stock J said these people were “themselves wrongdoers in connection with the very same episode”.

90.  Stock J cited the judgment of Lord Hailsham in Kamara [1974] AC 104 at p 116,

“… the essential requisite … is the presence or likely presence of innocent third parties, members of the public not participating in the illegal activities in question. It is their presence or the likelihood of it and the danger to their security in each case which constitutes the threat to public peace and the public element necessary to the commission of the offence.”

91.  The facts of Kamara can shed light on the meaning of innocent third parties.  In that case, some students staged a protest action by entering the High Commission of Sierra Leone.  They threatened the caretaker with an imitation gun and locked him in a reception room.  10 other members of the staff were brought and detained.  Whilst those members were frightened, there was no evidence that there was any person outside the building having put in fear.  One of the charges was unlawful assembly.  The students were convicted and they appealed to the House of Lords.  Their argument was that there was no terror and alarm in the neighbourhood which was an essential ingredient of this offence.  The question certified was this,

“Whether it is necessary in proving the crime of unlawfully assembling in such a manner as to disturb the public peace, to show that fear was engendered in persons beyond the bounds of a building”.

92.  At p 115 G, Lord Hailsham said this with regard to the argument of the students,

“I agree with Lawton LJ that in those cases ‘in the neighbourhood’ must be read in the context as simply the equivalent of those nearby.”

After referring to the definition in Hawkins’ Pleas of the Crown, he continued,

“I consider that the public peace is in question when either an affray or a riot or unlawful assembly takes place in the presence of innocent third parties. It was accepted on behalf of the appellants that a riot can take place in enclosed premises, e.g. Dartmoor Prison. But an unlawful assembly is only an inchoate riot … When this was pointed out to him, counsel for the appellants was driven to argue that, if rioters in Dartmoor beat the warders inside the prison, they would be rioting, but they would not be guilty of an unlawful assembly unless the noise from inside the prison frightened some of Her Majesty’s lieges outside the prison. I find this contention wholly unattractive. No doubt unlawful assembly differs from an affray, because, unlike affray, it implies a common purpose, and because, unlike affray, actual violence is unnecessary provided the public peace is endangered, but in my view it is analogous to affray in that (1) it need not be in a public place and (2) that the essential requisite in both is the presence or likely presence of innocent third parties, members of the public not participating in the illegal activities.”

93.  The appeal was dismissed.  It is therefore crystal clear that victims to the attack (the staff in the High Commission building who were threatened by the students and the warders who were beaten up by the rioting prisoners) can be the innocent “third parties” for this purpose.

94.  Properly understood, the phrase “innocent third parties” does not exclude those, like the security guards, who were confronted by the conducts of the Defendants.  They could not be regarded as participants in the illegal activities in question.  On the scenario that the Defendants had no right to enter the foreground to demonstrate (which was the scenario that the magistrate considered this question, see para 19 of the Case), the security guards merely performed their duties in trying to prevent the Defendants from moving further into the premises.  They were in the same position as the staff members in Kamara.

95.  I also fail to see why the reporters should be excluded.

96.  Mr Lee relied on several authorities and submitted that since these people (as well as the police) were trained personnel they would unlikely be provoked into committing an breach of the peace: R v Li Wai Kuen [1973-76] HKC 346; HKSAR v David Morter [2003] 2 HKLRD 510; HKSAR v Cheng Siu Wing, supra; Percy v DPP [1995] 1 WLR 1382; 香港特别行政區訴招顯聰, supra.

97.  Counsel’s submission is sound only as regards the provocation limb of the third ingredient.  However, as analysed above, there is another limb, viz the fear that the Defendants themselves would commit a breach of the peace.  This was also a limb relied upon by the prosecution.  I do not read the cases cited by Mr Lee as going as far as saying that when the only persons present are trained personnel they could not reasonably hold the fear that the Defendants would commit a breach of the peace.

98.  I would therefore answer Question 3 as follows: “No, the magistrate was wrong to exclude from his consideration the security guards”.

99.  As regards Question 4, the matters raised in the Question are clearly relevant considerations as to whether the security guards had a reasonable fear that the Defendants would commit a breach of the peace.  The answer is therefore: “yes, the magistrate was wrong in failing to have regard to those matters”.

Disposal of the case

100.  Having answered the questions that I can answer, I wish to hear further submissions from the parties as to how the matter should proceed.  I do this for this reason.  The event took place in December 2009.  The trial before the magistrate took place between July and December 2010.  The magistrate acquitted the Defendants in December 2010.

101.  For some reasons unknown to me, the Case was only signed on 11 January 2012.  Further, as explained above, there are insufficient findings of fact in the Case itself as regards which Defendants did what at the time of the incident.  I wonder how realistic it is to remit the Case back to the magistrate at this stage given the lapse of time and consequently lapse of memories, not only on the part of the magistrate but also on the part of the witnesses.  In this connection, I am very much alive to what was said in Police v Beggs, supra at p 633 in respect of the outcome of that case.

102.  Given what I said in relation to Question (2), even if the case were remitted, there is no guarantee that there would be convictions.

103.  In some cases, the purpose of prosecution of appealing by way of case stated is to clarify the law.  I hope that by and large this objective is served by this judgment.  I would therefore like to hear from the parties how the case should proceed in the light of this judgment.  I shall direct that the case be listed in consultation with counsel’s diaries with an estimate length of 2 hours.