HKSAR v. CHOW NOK HANG AND ANOTHER

[English Translation – 英譯本]
HCMA 193/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 193 OF 2012

(ON APPEAL FROM ESCC NO. 3256 OF 2011)

________________

J U D G M E N T

A. Charges

1.  The two appellants were each charged with one count of Behaving in a Disorderly Manner in a Public Place, contrary to section 17B(2) of the Public Order Ordinance, Cap. 245, Laws of Hong Kong.

2.  The Particulars of Offence were as follows:

“[The 1^st appellant/2^nd appellant] you are charged that on the 10^th day of April 2011, in Hong Kong, in a public place, namely, at the venue of the ‘MTR Hong Kong Race Walking 2011’ Statue Square, Chater Road, Central, [you] behaved in a noisy or disorderly manner, with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be caused.”

3.  Each of them also faced an alternative charge, namely Acting in a Disorderly Manner at a Public Gathering, contrary to section 17B(1) of the said Ordinance.

4.  Both appellants pleaded not guilty but both were found guilty after trial by the magistrate of Behaving in a Disorderly Manner in a Public Place, and were sentenced to 14 days’ imprisonment.  As the magistrate had convicted them of the two substantive charges, he did not need to deal with the two alternative charges.

5.  The two appellants appealed against both conviction and sentence.

B. Facts of the case

6.  At the trial there was no substantial dispute over the facts, and arguments were mainly about points of law.  During the appeal, the parties did not quarrel about the facts set out by the magistrate either.

7.  The following were the facts of this case which I learned from the Admitted Facts, the evidence given by the five prosecution witnesses, and the video compact discs and photographs produced in court.

8.  On 10 April 2011, a charity fund raising event, the “MTR Hong Kong Race Walking 2011” jointly organized by the MTR Corporation Limited (“MTR Corp.”) and the Hong Kong Amateur Athletic Association, took place.  The prize presentation ceremony of the walking race was to be held on a stage built on a pond in Statue Square, Chater Road, Central.  The undisputed fact was that that part of Statue Square, which was the venue of the walking race, and the walking-race-related activities carried out in Statue Square were respectively “public place” and “public gathering” within the meaning of section 2(1) of the Public Order Ordinance.

9.  As part of the arrangements of the activities held on that day, the MTRCorp. deployed 29 staff members and 20 contract security guards to maintain order.  Mills barriers were set up at the scene.  Only members of the staff were allowed to enter certain areas, including the prize presenting stage.  Neither of the two appellants were members of thestaff, so they were not allowed to go onto the stage.

10.  The prize presentation ceremony of the walking race was held at around 12 noon. The Secretary for Transport and Housing Madam Eva Cheng (“the Secretary”) was one of the guests.  At the material time the Secretary, together with the chairman of the MTRCorp. Mr. Raymond Ch’ien, (“Chairman Ch’ien”), the master of ceremonies of this event (PW2) and other guests were on the stage.

11.  The MTRCorp. arranged for staff members to shoot the prize presentation ceremony.  Apart from that, they also commissioned the Cable TV to assist in video recording.  The police, too, carried out their video recording at the scene.  Both parties agreed to produce as exhibits four sections of video footage, which were recorded in a compact disc (P3).  They were respectively one section taken by the MTRCorp. (P3a), two taken by the Cable TV (P3b and P3c) and one taken by the police (P3d).

12.  It was shown on these video recordings that all the guests were sitting on the stage.  When Chairman Ch’ien was giving his speech, shouts of “Shame on MTR for their fare hike” from demonstrators could be heard already.  The next one to deliver a speech was the Secretary.  Soon after she started her speech, the 1^st appellant rushed onto the left side of the stage and scattered paper money offerings around.  Madam Cheng was obviously startled by this sudden move of the 1^st appellant and cried “Wow” once.  She then said, “This is not some kind of sport.  Children, you should not imitate that.  Hahaha…. .”

13.  When the 1^st appellant was being taken away by a staff member, he shouted loudly the slogan “Shame on MTR for their fare hike”.  Immediately after that the 2^nd appellant rushed onto the stage and dashed towards the Secretary.  Chairman Ch’ien sprang up from his seat at once to stop the 2^nd appellant.  The 2^nd appellant snatched away the microphone placed in front of the Secretary and used by her for delivering her speech, then he shouted the slogan “Shame on MTR for their fare hike” through the microphone.  Many staff members came. They separated Madam Cheng from the 2^nd appellant and took him away together with the microphone.

14.  On the ground, a demonstrator wearing a black upper garment went towards the stage, appearing to be trying to go onto the stage, but he was stopped by the staff members.  This demonstrator raised his arm and shouted “Shame on MTR for their fare hike”.

15.  According to the evidence of PW1 (project manager of the MTR walking race), the 1^st appellant dashed into the pond in an attempt to go onto the stage.  PW1 tried to stop him but failed.  He himself lost balance and fell.  He tried again to stop him but failed again.  As a result of this incident PW1’s left elbow suffered a minor injury.

16.  The evidence of PW2 was that he felt something falling from above (later he learned that they were paper money offerings) and at the same time saw that the 2^nd appellant rushed onto the stage at high speed from his left hand side.  In order to prevent the 2^nd appellant from harming the Secretary, he put down the microphone in his hand and tried to stop the 2^nd appellant but he failed.  The 2^nd appellant seized the microphone and said something.  Then PW2 and some staff members together dragged him away from the stage.  In the course of the grappling, PW2 suffered minor injuries.  The 2^nd appellant put up a slight resistance but soon he calmed down.

17.  PW3 and PW4 were security guards employed by the MTR Corp. .  Their duty was to protect the safety of the guests on the stage and to make sure that no one rushed onto the stage.  The two of them were among those who removed the 2^nd appellant from the stage.

C. Guilty verdict reached by the magistrate

C.1.   Statement of Findings

18.  Having stated that he had borne in mind that the burden of proof was on the prosecution and that the standard of proof was proof beyond reasonable doubt, the magistrate set out the elements of the offence and the findings he made as follows:

“16. In respect of Charges 1 and 2, I accepted the prosecution’s submission that they consist of three elements:

(a) In a public place;

(b) Behavingin a noisy or disorderly manner; and

(c) With intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused.

17. The appellants did not dispute that the scene was a public place: see paragraph 1 of the Admitted Facts. Counsel for the 2^nd appellant did not have any dispute concerning elements (a) and (b), but counsel for the 1^st appellant argued that the 1^st appellant did not behave in a disorderly manner. I considered that such argument was untenable: Firstly, the 1^st appellant was not a member of the staff, nor a participant in the walking race nor a guest, so hehad no right to go onto the stage. Furthermore, scattering paper money offerings was not part of the event on that day. According to HKSAR v Cheung Siu-wing [2003] 4 HKC 471, 480 G-H:

“‘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 ‘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 characterized as disorderly”

The meanings of “unruly or offensive behaviour” and “violating public order or morality” are respectively “rough or aggressive behaviour” and “acting in a way which disrupts public order or is against morality”.

18. The two appellant were “gatecrashers” and they rushed onto the stage at high speed. At that time, it must be within their expectation that the staff members would try to stop them and that in the course of stopping them there were bound to be bodily contacts. In the end, PW1 and PW2 did suffer injuries as a result. In my view,both appellants’ behaviour was unruly and offensive, so they did behave in a disorderly manner. I did not accept the argument that the 1^st appellant was genuinely exercising his freedom of speech, because what the law protects is only freedom of “peaceful” expression of one’s views, but the 1^st appellant’s behaviour was absolutely not peaceful at all.

19.  Did the appellants’ conduct constitute a breach of the peace?  Both parties agreed that the following legal principle was correct and applicable: (See HKSAR v Lo Man-hong [transliteration of 勞文康] HCMA 874/2009, page 9 paragraph 29):

“29. In other words, a breach of the peace can happen under the following three circumstances:

(i) Harm is actually done or is likely to be done to a person;

(ii) Harm is actually done or is likely to be done to [his] property;

(iii) A person is put in fear of being [so] harmed through an assault, an affray, a riot, unlawful assembly or disturbance.”

20.  Both parties agreed that the authorities which they cited respectively, namely HKSAR v Pearce [2006] 3 HKC 105, Brooker v Police [2007] 3 NZLR 91, HKSAR v Wong Wing-yu & Ors [1997] 3 HKC 452 and R v Kam Man-fai [1983] 1 HKC 614 were instances of the courts’ applying the same principle under different circumstances, and that they all originated from R v Howell [1982] QB 416.  I had to consider whether the appellants’ conduct was such that it met the condition “with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused”.

21.  In applying the relevant principle, I took into account the following material and proven facts:

(i)        The 1^st appellant rapidly ran up to the stage and scattered paper money offerings.  PW1 tried to stop him but failed and was injured as a result.

(ii)       The Secretary was startled and cried out “Wow!”.

(iii)     Within a matter of seconds, the 2^nd appellant also rushed up to the stage and towards the Secretary at high speed.  He snatched away the microphone, The Secretary had to step back at that time.

(iv)      P3(d) showed that when the appellants were being taken away, a demonstrator wearing a black upper garment tried to go to the stage but was stopped.  From this and the fact that at the time that demonstrator also chanted the same slogan as that chanted by the 2^nd appellant: “Shame on MTR for their price hike!”, I drew a reasonable inference that that demonstrator was provoked or inspired to follow in the appellants’ footsteps.

22.  I considered that in stopping and taking away the appellants, PW1, PW2 and other staff members exercised restraint and did not overreact.  In my view, their reaction was reasonable under those circumstances.  Before the appellants did the acts in question, they must have reasonably expected that they would encounter obstruction, that there would be bodily contacts and that further, some people might be hurt due to the use of force.  I found that their conduct involved violence, violated public order and breached the peace.  As a matter of fact, their conduct provoked someone to follow their example.  Therefore, I drew an inference, which was the only reasonable inference, that they had the requisite intent.  I was satisfied that the prosecution had proven element (c) beyond reasonable doubt.

23.  Based on the above analysis, I found the appellants guilty of Charges 1 and 2 which they respectively faced.  As I had convicted them, I did not need to make any decision as to the alternative Charges 3 and 4. ….” (emphasis added)

C.2.   Oral verdict

19. It is noteworthy that there is the following discrepancy between the oral verdict given by the magistrate and his subsequent Statement of findings (appeal bundle page 136 O to Q):

“The consequence of their conduct was that someone else was provoked to follow their example to do the violent acts in question. Therefore, I am satisfied and am sure that the two defendants had the requisite intent to provoke others to follow their example to breach the peace and that their conduct was intentional, whereby a breach of the peace was likely to be caused. Therefore, I found that the prosecution had proven beyond reasonable doubtthe third element I mentioned earlier…..” (emphasis added)

In the Statement of Findings the magistrate stated that he found that the appellants’ conduct had breached the peace, and that he drew the only reasonable inference that they had the “requisite intent” from the fact that their conduct had provoked someone to follow their example.  However, he did not specifically make any finding as to the element “whereby a breach of the peace was likely to be caused”.

D. Grounds of appeal against conviction

20. Mr. Wong, counsel for the appellants, advanced three grounds of appeal in support of the contention that the convictionswere unsafe.

D.1.   Grounds of appeal (1)

21. Mr. Wong submitted that the magistrate erred in finding that the appellants behaved in the manner they did “with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused”.  Mr. Wong further submitted that the magistrate erred in equating “liable to” with the legal requirement “likely to”.

22. Mr. Wong described what the appellants did after they rushed onto the stage and how they were immediately removed by the staff members.  He pointed out that no further unpleasant incidents happened either during or after these actions. The staff members of the event exercised great restraint and they would not breach the peace.  Both the organizer and the police monitored the event closely and there was no sufficient evidence to support the finding that the appellants had the intent to provoke a breach of the peace or a breach of the peace was likely to be caused.  Mr. Wong said that the Statement of Findings seemed to be written on the basis that “a breach of the peace was ‘liable’ to be caused” was an element of the offence.

23. To support this ground of appeal, Mr. Wong cited English authorities in which observations were made in relation to similar provisions and a Hong Kong authority in which observations were made regarding the same provision: Parkin v Norman [1983] QB 92, R v Howell [1982] QB 416, Marsh v Arscott [1982] 75 Cr App R 211 and R v Kam Man Fai [1983] 1 HKC 614.

D.2.   Ground of appeal (2)

24.  Mr. Wong submitted that the magistrate erred in finding that the appellants’ conduct constituted a breach of the peace.

25.  Mr. Wong averred that the magistrate’s statement, namely “both appellants’ behaviour was unruly and offensive, so they did behave in a disorderly manner” precisely showed that he failed to see that just behaving in that way alone was not enough to found a conviction, and that it was necessary for the appellants to have the intent to provoke “others” to breach the peace, or their conduct was likely to cause “others” to breach the peace.

26.  Mr. Wong cited HKSAR v CHIU Hin-chung & KEUNG Ling-cheung HCMA 163/2012 and Jarrett v Chief Constable of West Midlands Police [2003] EWCA Civ 397 to support his argument.

D.3.   Ground of appeal (3)

27.  Mr. Wong contended that in the circumstances of this case, the inference that the other demonstrator was provoked or inspired to follow in the appellants’ footsteps was far-fetched, and that it was not the only reasonable inference.

E. Respondent’s response

E.1.  Ground of appeal (1)

28.  Mr. Hui, Senior Assistant Director of Public Prosecutions, for the respondent, submitted that the appellants’ submission was an one-sided interpretation of the basis of the magistrate’s findings, without paying regard to the overall effect produced by the evidence in this case as a whole.

29.  Mr. Hui referred to what the magistrate said in paragraphs 20 to 22 of the Statement of Findings and argued that when the magistrate made the finding that the appellants had the “requisite intent”, he meant that the appellants behaved in the manner they did “with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused”.  The finding was not——as alleged by the appellants——just that a breach of the peace was “liable” to be caused by the appellants.

30.  The respondent did not dispute the authorities submitted by the appellants.  The respondent also accepted that the comments made in Parkin v Norman about similar U.K. provisions were applicable to the offence under section 17B(2).  As far as the offence under section 17B(2) is concerned, the legislative intent is mainly targeted at the likely effect or influence of the disorderly conduct on the people who witnessed such conduct at the scene.

31.  Mr. Hui emphasised that in respect of element (c) of the offence under section 17B(2), what the prosecution was required to prove was “with intent to provoke a breach of the peace” or “whereby a breach of the peace was likely to be caused”, not the appellants’ conduct did provoke a breach of the peace, or whereby a breach of the peace was caused.

32.  Mr. Hui described the appellants’ conduct as being likely to provoke other demonstrators or protesters to respond in a violent manner, thereby causing personal injuries, property damage or other disturbances.  Mr. Hui cited the case about taking upskirt photographs to support his argument: HKSAR v Yip Tak Ming [2004] 3 HKLRD 286.

33.  Mr. Hui pointed out that in fact it could be seen from the video recordings that when the appellants were being taken away, at the scene a demonstrator who was wearing a black upper garment attempted to go to the stage but was stopped, which showed that the appellants’ conduct did provoke or inspire other demonstrators to follow their example.

34.  Mr. Hui said that based on the above evidence, the magistrate was perfectly entitled to find that the appellants had the “intent to provoke a breach of the peace” and/or their conduct was such that “whereby a breach of the peace was likely to be caused”.

E.2.  Ground of appeal (2)

35.  The respondent submitted that in paragraphs 17 and 18 of the Statement of Findings, the magistrate was dealing with element (b) of the offence, namely “disorderly conduct”.  Having reasonably analysed the appellants’ acts, the magistrate found that they constituted disorderly conduct.  Furthermore, paragraphs 19 to 22 of the Statement of Findings showed that the magistrate then proceeded to correctly and separately analyse element (c).  According to the respondent, it is clear that the magistrate did not confuse “disorderly conduct” with “breach of the peace”, and that he had properly considered the cause and effect relationship between these two elements.  His approach was not inconsistent with what was said in Chiu Hin-chung.

36.  The respondent cited HKSAR v Au Kwok-kuen [2012] 3 HKLRD 371, 398 (paragraph 75 of the judgment) and submitted that under certain circumstances an offender’s conduct could amount to both “disorderly conduct” and “a breach of the peace”. In respect of the charges under section 17B(2), the magistrate had considered elements (b) and (c) separately, and the cause and effect relationship between them.  His findings were fully justified.

37.  As for the case Jarrett, Mr. Hui said the facts of that case were so different from those of this case that the two cases were not comparable with each other.

E.3.  Ground of appeal (3)

38.  The respondent submitted that on the basis of the various kinds of evidence before the magistrate (including video recordings and the evidence of the prosecution witnesses), it was open to him to draw the only reasonable inference: a demonstrator was provoked or inspired by the appellants to follow in their footsteps.

F.  My considerations

39.  Although the appellants put forward three grounds of appeal, I will deal with them at the same time because they were closely related with one another and involved the same facts.

F.1  Relevant law and legal principles

40.  I shall first set out the relevant law and legal principles.  Section 17B(2) of the Public Order Ordinance provides that:

“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 of $5,000 and to imprisonment for 12 months.”

41.  The charges against the appellants stated that they behaved in a noisy or disorderly manner in a public place, with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused.  Therefore, in relation to this offence the prosecution was required to prove the following three elements:

(a) In a public place;

(b) The appellants behaved in a noisy or disorderly manner, and

(c) (i) With intent to provoke a breach of the peace; or

(ii) Whereby a breach of the peace was likely to be caused.

In other words, for the court to find the appellants guilty, the prosecution was required to prove elements (a) + (b) + (c)(i) or (a) + (b) + (c)(ii).

Public Place

42.  The definition of “public place” can be found in section 2(1) of the Public Order Ordinance:

““public place”（公眾地方）means any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, and in relation to any meeting, includes any place which is or will be, on the occasion and for the purposes of such meeting, a public place;”

Behaving in a noisy or disorderly manner

43.  Neither “noisy” nor “disorderly conduct” is defined in the Public Order Ordinance.

44.  “Noisy” needs no explanation.

45.  As for “disorderly conduct”, I entirely agree with the views of Beeson J in HKSAR v Cheng Siu Wing.  I also endorse the magistrate’s interpretation of “unruly or offensive behaviour” and “violating public order or morality”: namely “rough or aggressive behaviour” and “acting in a way which disrupts public order or is against morality” (paragraph 17 of the Statement of Findings; paragraph 18 of my judgment).

Breach of the peace

46.  What constitutes a breach of the peace?  In Howell (a case about the power to arrest for a breach of the peace under common law), the U.K. Court of Appeal had this to say (page 427):

“ We are emboldened to say that 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. …”

47.  This definition has been adopted by the courts of Hong Kong in a large number of cases: for example, HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371; Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797; HKSAR v Yip Tak Ming [2004] 3 HKLRD 286; the above-mentioned HKSAR v Cheng Siu Wing and R v Kam Man Fai.  In CHIU Hin-chung (paragraph 7), D. Pang J rephrased the three situations set out in Howell as follows:

“(1) Harm is actually done or is likely to be done to a person;

(2) Harm is actually done or is likely to be done to a person’s property in the presence of that person; or

(3) A person is put in fear of himself or his property being harmed or likely to be harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.”

48.  In Howell, before the U.K. Court of Appeal made the above-mentioned holding on the definition of “breach of the peace”, it made the following comment in the course of their deliberation and analysis (page 426G):

“… Nevertheless, even in these days when affrays, riotous behavior and other disturbances happen all too frequently, we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person’s body or property.” (emphasis added)

The gist is that even though affrays, riots and other disturbances happen frequently, a course of conduct does not constitute a breach of the peace unless an act has been done or threatened to be done which either actually harms a person, or his property in his presence, or is likely to cause such harm, or which puts him in fear of such harm being done.  Nothing is more likely to arouse resentment and anger in a person and a desire to take instant revenge than attacks or threatened attacks on his body or property.

49.  It is thus clear that the Court of Appeal took into account the reaction of the person who is attacked or is likely to be attacked, or whose property is damaged in his presence or is likely to be so damaged.

With intent to provoke a breach of the peace

50.  Obviously it means that the defendant has the “intent” to “provoke” “others” to breach the peace, not the defendant himself to breach the peace.

A breach of the peace was likely to be caused

51.  In Parkin v Norman, when dealing with section 5 of the Public Order Act, which is similar to our section 17B(2), the U.K. Court of Appeal said (page 98D-G):

“ The purpose of the Act was to promote good order in places to which the public have access: see Cawley v. Frost [1976] 1 W.L.R. 1207 per Lord Widgery C.J. at p. 1212. It is clear, both from the long title and from sections 1, 2 and 4 that Parliament intended to prevent activities liable to lead to public disorder, regardless of whether or not those engaging in them intended that disorder should result. The use of the phrase ‘whereby a breach of the peace is likely to be occasioned’ in section 5 reflects this thinking. … But not all threats, abuse or insults necessarily have this result. Qualifying words were therefore required, and conduct of this kind was only prohibited if it was likely to lead to a breach of the peace or, as was added, if it was so intended.” (emphasis added)

The gist is that the purpose of the Public Order Act is to promote good order in places to which the public have access.  The legislative intent is to prevent conduct or activities liable to lead to public disorder, regardless of whether the people engaging in such conduct or activities intended to disrupt public order.  Not all threats or insulting words or deeds necessarily result in a breach of the peace.  It is therefore necessary to lay down some qualifying conditions.  Only when such conduct is likely to cause a breach of the peace or if it is so intended will it be prohibited by the law.

52.  As I mentioned earlier, the respondent agreed that these comments are applicable to section 17B(2) (paragraph 30 of the judgment).

F.2  Application of relevant law and legal principles to this case

53.  When these legal principles and definitions are applied to the facts of this case, did the prosecution succeed in proving the three elements?

Public place

54.  First of all, element (a) “public place”.  The part of Statue Square where the walking race was held evidently met the statutory definition of “public place”. In the Admitted Facts both parties admitted this fact.  Element (a) was proved.

Behaving in a noisy or disorderly manner

55.  Element (b), behaving in a noisy or disorderly manner.  At the trial the defence admitted that the 2^nd appellant did behave in a disorderly manner, and Mr. Wong did not make an issue of it during the appeal hearing.  I also agree that the 2^nd appellant’s conduct was clearly disorderly conduct.

56.  As for the 1^st appellant, at the trial the defence argued that his conduct did not amount to disorderly conduct.  In paragraph 17 and 18 of the Statement of Findings the magistrate made an analysis and found that both the appellants (in particular the 1^st appellant) did behave in a disorderly manner at the material time.

57.  I completely agree with the magistrate’s view.  As pointed out by Mr. Hui, when considering whether the appellants (particularly the 1^st appellant) were behaving in a disorderly manner, the court should not only take into account what they did afterthey got onto the stage, but should consider the whole chain of their actions.  The 1^st appellant’s conduct did amount to disorderly conduct.

Breach of the peace

58.  Following an analysis of considerable length, the magistrate found that the appellants, by their disorderly conduct, had breached the peace.

59.  Mr. Wong submitted that the appellants’ conduct alone was not sufficient to justify the convictions, and that the prosecution had to prove element (c).

60.  Mr. Wong went on to say that the appellants’ conduct did not breach the peace.  He relied on Jarrett to support his argument.  Jarrett was about the issue whether a woman’s conduct of becoming excited, throwing her arms about and wielding her handbag in front of a police officer constituted a breach of the peace.  The U.K. Court of Appeal, after citing the definition of a breach of the peace in Howell, held that on the evidence, the woman’s conduct involved no questions of injury or possible threat of injury to any member of the public, that her conduct, namely the waving of her handbag, was nothing more than a symptom of her agitation, and that the trial judge was entitled to find that there were no proper grounds established for arrest in relation to a breach of the peace.

61.  Admittedly, as Mr. Hui submitted, the chain of actions done by the appellants were more violent than what the woman did in Javett, and they caused two staff members minor injuries.  However, was their conduct likely to cause the two injured persons or other people who might be injured by their conduct to take revenge and result in a breach of the peace?

62.  The evidence of this case showed that the staff members acted in a very restrained and professional manner.  Their duty was to maintain good order and to prevent people who had no right or no prior approval from entering certain areas, including the prize presentation stage.  They would not themselves breach the peace when, in the course of the performance of their duty, some people disrupted the order.

63.  It seems that when the magistrate found that the appellants had breached the peace, he did not take this factor into consideration.

64.  In fact, the prosecution was not required to prove that the disorderly conduct was the conduct constituting a breach of the peace.  As agreed by the respondent, the legislative intent of this offence is not that the person who behaves in a disorderly manner should himself be the person who breaches the peace; rather, it is aiming at the effect or influence which the disorderly conduct is likely to produce on the people who witnessed the conduct in question at the scene.

65.  It is true that disorderly conduct could at the same time be conduct which breaches the peace, as held by A. Cheung J (as he then was) in Au Kwok Kuen.  However, there are material differences between the facts of that case and those of this case.  In that case, a group of protesters (the defendants) entered a private residential development, without any permission to enter, to hold a demonstration.  The policemen formed a “human chain” to keep them from approaching the open space at the end of the driveway.  Later, the defendants broke through the “human chain” and reached the open space.  They were charged with taking part in an unlawful assembly, contrary to section 18(3) of the Public Order Ordinance.  The prosecution was required to prove that the protesters assembled together (three persons or more), conducted themselves in a disorderly manner, intending or likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace.

66.  At the appeal, A. Cheung J pointed out that on the facts of that case, the police officers were executing their duty when they formed the “human chain” to prevent the protesters from going to the open space, that when the defendants charged and broke through the “human chain”, they behaved in a disorderly manner likely to cause any person reasonably to fear that they would commit a breach of the peace, and that there was evidence to the effect that the police were apprehensive of the situation turning volatile and were mindful of the safety of the people there, including elderly people and children.

67.  I have repeatedly read the magistrate’s Statement of Findings.  I do not see he had made any analysis or finding as to the influence or effect which the appellants’ disorderly conduct might produce on other people at the scene who witnessed such conduct, except his description about members of the staff and the man dressed in black who, according to the magistrate, “followed the appellants’ example”.

68.  If the disorderly conduct could not cause the people at the scene who witnessed such conduct to breach the peace, the person who behaved in such disorderly manner committed no offence under section 17B(2).  (Authorities include Kam Man Fai: In the small hours the defendant moved his hands and feet about in the middle of a road and several taxis were blocked by him.  HKSAR v Pearce [2006] 3 HKC 105: The defendant dressed in a horse costume and ran about on the race track, resulting in a race being delayed.)

69.  Leaving the man dressed in black for a moment, I have said earlier that the facts of this case showed that the staff members who intercepted the appellants exercised great restraint.  There was no sign whatsoever that they had breached the peace.  According to the authorities, law enforcing officers generally would not be violators of the peace, nor would they react too quickly or too strongly (R v Li Wai Kuen [1973-1976] HKC 346; HKSAR v David Morter [2003] 2 HKLRD 510).

With intent to provoke a breach of the peace

70.  Did the conduct of the appellants show that they had the intent to provoke a breach of the peace?

71.  Before the 1^st appellant rushed onto the prize presentation stage, there were already people protesting below the stage, shouting loudly the slogan “Shame on MTR for their fare hike”.  When Chairman Ch’ien was making his speech, the shouting of the slogan by the protesters was still clearly audible, though the speech by Chairman Ch’ien was not interrupted.

72.  Soon after the Secretary began her speech, the 1^st appellant rushed onto the stage.  PW1 tried to stop him but in vain and PW1 was slightly injured.  Upon reaching the left side of the stage, the 1^st appellant scattered the paper money offerings and shouted once the slogan “Shame on MTR for their fare hike”.  It could be seen from the video recordings that he immediately turned round and appeared to be going to leave, but the staff members came.  He then stood on one side and was taken away by a staff member.

73.  In Hong Kong, a Chinese-dominated society, scattering paper money offerings is indeed a very insulting act, but the act itself does not amount to a breach of the peace.

74.  The 1^st appellant did not provoke, by means of slogan or speech, any person to do anything to disrupt social order.  I do not agree that the 1^st appellant’s conduct was “peaceful demonstration”, but his purpose was still to hold a demonstration and to draw people’s attention to the grievances he sought to express by behaving in an insulting manner.  There was no evidence which showed that the 1^st appellant had the intent to provoke a breach of the peace.

75.  The 2^nd appellant’s act of snatching the microphone was even more violent than that of the 1^st appellant.  He swiftly dashed onto the stage, ran towards the microphone placed in front of the Secretary, snatched the microphone and shouted the slogan “Shame on MTR for their fare hike” through the microphone.  The staff members had to remove him together with the microphone from the stage.  The purpose of the 2^nd appellant’s behaving in such violent manner was also to draw people’s attention to the grievances he tried to express.  He did not shout any slogan or say anything to provoke any people to come onto the stage.

76.  I understand how the magistrate came to the conclusion that the appellants had the said intent by relying on the fact that there was a man who “followed the appellants’ example”.  However, when all the circumstances are taken into account, the picture thus revealed is that before the 1^st appellant got onto the stage, people were already there protesting and shouting the same slogan.  It was neither heard nor seen during or after the 1^st appellant’s getting onto the stage to scatter the paper money offerings and the 2^nd appellant’s snatching the microphone that any person who was watching what was going on at the scene became agitated or raised his voice in support of the appellants’ conduct.  The man dressed in black did move towards the stage appearing to be trying to go onto the stage; however, given the circumstances at the material time, I do not think that the only reasonable inference is that the man was provoked by the 1^st and/or the 2^nd appellants to try to go onto the stage.  Even if the man was provoked by the two appellants to try to go onto the stage, it does not follow that the 1^st appellant or the 2^nd appellant had the “intent” to provoke other people to “follow their example” to go onto the stage.  Therefore, in my judgment, there was no solid ground on which the magistrate could find that the prosecution had proven that the 1^st and 2^nd appellants had the intent to provoke a breach of the peace.

A breach of the peace was likely to be caused?

77.  I have pointed out that in the magistrate’s oral verdict he stated that by the appellants’ disorderly conduct a breach of the peace was likely to be caused, but that in his Statement of Findings he expressed himself in a different way.  I do not know why it was so.  The respondent’s submission actually meant that the magistrate used the term “requisite intent” to cover element (c) (i.e. the (c)(i) and (c)(ii) which I referred to).  However, according to the law, only (c)(i) requires proof of “intent”, whereas the “likely” in (c)(ii) has nothing to do with “intent”.  I am unable to distil the real reasons for the magistrate’s findings from his oral verdict or his Statement of Findings.

78.  As a magistracy appeal is conducted by way of rehearing (HKSAR v Chou Shih Bin (2005) 8 HKCFAR 70; HKSAR v Raymond Chen [2011] 2 HKLRD 189), I can consider, on the basis of the undisputed facts before me, whether the prosecution was able to prove that the appellants’ disorderly conduct was such that whereby a breach of the peace was likely to be caused.  Both the appellants and the respondent agreed that I am entitled to deal with the appeal in this way.

79.  I took into account the fact that at the beginning of the prize presentation ceremony there were already people at the scene protesting and chanting the same slogan.  As I have said, it was neither heard nor seen during or after the 1^st appellant’s getting onto the stage to scatter the paper money offerings and the 2^nd appellant’s snatching the microphone that any person who was watching what was going on at the scene became agitated or raised his voice in support of the appellants’ conduct.  The man dressed in black did move towards the stage appearing to be trying to go onto the stage; however, given the circumstances at the material time, I do not think that the only reasonable inference is that the man was provoked by the 1^st and/or the 2^nd appellants to try to go onto the stage.  Even if the man was provoked by the two appellants to try to go onto the stage, it does not follow that the 1^st appellant or the 2^nd appellant had the “intent” to provoke other people to “follow their example” to go onto the stage.  Moreover, at that time the man was not behaving violently, and the staff members at the scene exercised great restraint.  The man’s so-called “following the appellants’ example” did not show that a breach of the peace was likely to be caused by the conduct of the 1^st appellant and/or the 2^nd appellant.  Therefore, judging from the chain of actions done by the 1^st appellant,including his rushing onto the stage, and taking into consideration all the circumstances at the scene, I do not find that his conduct was such that whereby a breach of the peace was likely to be caused.

80.  The chain of actions done by the 2^nd appellant were more violent than those of the 1^st appellant.  He dashed towards the microphone in front of the Secretary, but it is clear that he did not mean to physically attack her in any way.  Chairman Ch’ien stood in front of the Secretary to protect her, but neither he nor the guests on the stage did anything which breached the peace.  Similarly, I do not find that the 2^nd appellant’s conduct was such that whereby a breach of the peace was likely to be caused.

81.  The facts of this case are materially different from those of a case in which the defendant took upskirt photographs of a woman.  When a defendant did such an outrageous act in a public place, it was likely that the people who saw that would desire to take the law into their own hands, or even actually punish the offender themselves; therefore a breach of the peace was likely to be caused by the offender’s disorderly conduct.

82.  The appellants chose to express their complaints about the MTR Corp. fares increase in a rather violent manner.  However, I do not see that such disorderly conduct of theirs was likely to cause other people present at the scene to breach the peace.

83.  I find that the prosecution failed to prove beyond reasonable doubt that the appellants committed the offence of Behaving in a Disorderly Manner in a Public Place.

G.  Alternative charges

G.1.  Relevant law

84.  Regarding the alternative charges of Acting in a Disorderly Manner at a Public Gathering, section 17(B)(1) of the Public Order Ordinance provides that:

“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 of $5,000 and to imprisonment for 12 months.”

85.  The Particulars of Offence of the charges against the appellants were as follows:

“[The 1^st appellant/The 2^nd appellant], you are charged that on the 10^th day of April 2011, in Hong Kong, at a public gathering, namely, the public gathering at the ‘MTR Hong Kong Race Walking 2011’ held at Statue Square, Chater Road, Central, [you] acted in a disorderly manner for the purpose of preventing the transaction of the business of the ‘MTR Hong Kong Race Walking 2011’ for which the public gathering was called together.”

G.2.   Elements of the offence

86.  The elements of this offence are:

(a) At a public gathering called together for a certain business;

(b) Acting in a disorderly manner; and

(c) For the purpose of preventing the transaction of the business.

Public gathering

87.  According to the definition provided in section 2(1) of the Public Order Ordinance, “public meeting” means any meeting held or to be held in a public place.  Activities related to the walking race and which took place in the Statue Square were obviously within the meaning of “public gathering” ascribed by the law.  This was admitted by both parties in the Admitted Facts.

A certain business

88.  In this case, “a certain business” referred to the walking-race-related activities (including the prize presentation ceremony).

Acting in a disorderly manner

89.  Both appellants did act in a disorderly manner.

For the purpose of preventing the transaction of the business

90.  What I am required to consider is whether the prosecution could prove that the appellants acted in a disorderly manner for the purpose of preventing the transaction of the walking-race-related activities (i.e. element (c)).

H.  Magistrate’s findings

91.  When the magistrate was giving his oral verdict, he expressly said that if it was necessary to do so, he would find both appellants guilty of the alternative charges.  The following were the findings he made in respect of the alternative charges (appeal bundle page 136 S to page 137 E):

“The elements of Acting in a Disorderly Manner at a Public Gathering are as follows: 1, At a public gathering called together for a certain business.  2, Acting in a disorderly manner; 3, For the purpose of preventing the transaction of the business.  In respect of the first element, that is to say, whether there was a public gathering at the material time, the prosecution and the defence have reached an agreement.  Reference can be made to exhibit P5, that is paragraph 1 of the Admitted Facts.  As for the second element of the offence, my findings made in relation to the first and the second charges are also applicable.  As regards the third element, the dispute between the prosecution and defence is over one word, namely the word “preventing”.  The prosecution submitted that prevention could be of a temporary nature; whereas the defence case is that, they contended that the gathering in question must be completely brought to an end or be completely terminated.

In any case, both defendants argued that at the material time they had no intention to completely bring the gathering to an end.  In my view, I accept the prosecution’s submission that “to prevent” does not require that the activity in progress be completely brought to an end.  This is the ordinary meaning of the word.  Any interference which causes the gathering in question to stop functioning is already an act to prevent.  In any event, on the basis of the evidence before me I can make an inference, which is the only reasonable inference, that what the defendants did at that time was certainly done with the intention to bring the prize presentation ceremony to an end.”

I.  Grounds of appeal

92.  The appellants submitted that they should not be convicted of the alternative charges either.  The grounds put forward by Mr. Wong were essentially that the appellants’ conduct did not “prevent” the transaction of the business of the walking race, and that what they did was not “for the purpose of preventing” the transaction of that business.

93.  Mr. Wong submitted that the word “preventing” must refer to the walking race being “completely brought to an end” or “aborted”.  He argued that the short interruption of “a matter of seconds” which happened in this case did not amount to “preventing”.  He went on to say that when the appellants did the acts in question, their purpose was not for “preventing” the transaction of the business of the walking race and that therefore the charges were not established.

J.  My considerations

94.  I do not accept Mr. Wong’s argument.  There is no definition of “to prevent” in the Public Order Ordinance.  According to the Shorter Oxford English Dictionary (6^th ed), “prevent” means “stop, hinder, avoid”.  I do not agree that the “preventing” in section 17B (1) must refer to “being completely brought to an end” or “being aborted”, because to stop for a moment due to hindrance also fits the definition.  The magistrate’s finding as to the meaning of “prevent” is correct.

95.  The facts of the present case showed that the purpose of the appellants’ behaving in a disorderly manner was not simply to prevent the conduct of the prize presentation ceremony of the walking race.  They were not content to stage their protest below the stage, so they chose to conduct themselves in a more violent and disorderly manner: They rushed onto the stage, scattered the paper money offerings, snatched away the microphone and shouted slogans.  As a result of the 1^st appellant’s conduct, the Secretary’s speech stopped for a few seconds.  Shortly after she resumed speaking, the 2^nd appellant snatched away the microphone, so that she was unable to continue with her speech.  It is obvious that the appellants were preventing the prize presentation ceremony of the walking race from going on by behaving in that way in order to stay on the stage and capture everyone’s attention for as long as they could, to fulfil their purpose of escalating the intensity of their protest.  It can therefore be said that the purpose of their behaving in such disorderly manner was two-fold: First, to prevent the prize presentation ceremony from going on; second, to escalate their protest.

96.  I find that the prosecution had proven beyond reasonable doubt the charges of Acting in a Disorderly Manner at a Public Gathering against both appellants.

K  Conclusion on appeal against conviction

97.  For the above reasons, the appellants’ appeal against conviction is allowed in part. I quash their convictions for Behaving in a Disorderly Manner in a Public Place (charges 1 and 2), but find them guilty of Acting in a Disorderly Manner at a Public Gathering, that is the offence in the alternative charges (charges 3 and 4).

L.  Appeal against sentence

98.  Appeals were lodged by the appellants against the sentences passed for the charges of Behaving in a Disorderly Manner in a Public Place.  Basically, Mr. Wong’s submission was that the 14 days’ imprisonment imposed on the appellants was manifestly excessive, that both appellants had a clear record and that the magistrate should not have meted out such a heavy sentence to them on the ground of deterrence.

99.  The respondent made a reply about the sentences for charges 1 and 2.  Mr. Hui submitted that the magistrate’s imposition of the short term custodial sentences is not wrong in principle, but he agreed that there is room for downward adjustment.

100.  The appellants were sentenced by the magistrate for the charges of Behaving in a Disorderly Manner in a Public Place.  Now I have convicted them of the alternative charges of Acting in a Disorderly Manner at a Public Gathering.  I will reconsider the sentences pursuant to section 119(d) of the Magistrates Ordinance, Cap. 227 of the Laws of Hong Kong and award punishments which I think appropriate.  I will listen to submissions on mitigation before I make any decision.

[Mitigation by defence counsel]

101.  Under section 17B(1) of the Public Order Ordinance, any person convicted of Acting in a Disorderly Manner at a Public Gathering shall be liable to a fine of $5,000 and to imprisonment for 12 months (penalty is the same as that provided in section 17B(2)).

102.  No sentencing guideline is available for this offence.  How a person acts in a disorderly manner varies with the facts of different cases.  There is no single approach which is applicable to every kind of situation.

103.  Both appellants were first time offenders.  Their occupations are respectively District Councillor Assistant and Councillor Assistant.  Their monthly salaries are the same, i.e. about $8,500.

104.  As rightly pointed out by the magistrate in passing sentence, recently the expression of opinions by conducting oneself in a more radical manner or by employing methods involving bodily actions and physical contacts is on a rising trend.  In the course of such activities, sometimes innocent workers and staff members were harmed.  In this case, PW1 and PW2 suffered minor injuries.  However, having considered the facts of the case and the background of the appellants, I believe that a fine is an appropriate punishment.

105.  Looking at the culpability of the appellants, the 2^nd appellant’s culpability is higher than that of the 1^st appellant.  For the 1^st appellant’s culpability, a fine of $2,000 is appropriate, while the 2^nd appellant should be fined $3,000.  Both appellants have seven days to pay.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.