SHAM TSZ KIT AND ANOTHER v. COMMISSIONER OF POLICE AND ANOTHER

HCAL 2670/2019

[2021] HKCFI 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2670 OF 2019

________________________

________________________

________________________

J U D G M E N T

________________________

INTRODUCTION

1.  This is the rolled-up hearing of an application for judicial review of:

(1)   the decision made by the Hong Kong Police Force (“the Police”) at around 4:00 pm on 12 June 2019, without reasonable prior notification, to disperse the lawful meeting organized by the Civil Human Rights Front (“CHRF”) using tear gas grenades at the Lung Wui Road southern pavement outside CITIC Tower at 1 Tim Mei Avenue, Admiralty (“the Dispersal by Tear Gas Decision”);

(2)   Section 17(2)(a) and (3)(a) of the Public Order Ordinance, Cap 245; and

(3)   the Notice of Prohibition issued by the Police to the 1^st Applicant on 12 June 2019 (“the Notice of Prohibition”).

2.  In what follows, unless the context indicates otherwise, references to:

(1)   “BL” shall be to the Basic Law of the Hong Kong Special Administration Region;

(2)   “BOR” shall be to the Hong Kong Bill of Rights;

(3)   “CPO” shall be to the Criminal Procedure Ordinance, Cap 221; and

(4)   “PGO” shall be to the Police General Order made by the Commissioner of Police (“the Commissioner”) pursuant to s 46 of the Police Force Ordinance, Cap 232; and

(5)   “POO” shall be to the Public Order Ordinance, Cap 245.

BASIC FACTS

3.  CHRF, founded on 13 September 2002, is an association of various civic organizations and political parties formed with the aim of providing a platform for consolidating their voices to advance the development of civil and political rights in Hong Kong.

4.  The 1^st Applicant was, at all material times, the convenor of CHRF.  The 2^nd Applicant was a participant of a public meeting organized by CHRF on 12 June 2019 more particularly described below.

5.  The Government’s Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the 2019 Bill”), which was met with widespread public opposition in Hong Kong, was set for resumption of its Second Reading in the Legislative Council on 12 June 2019.

6.  On 11 June 2019, the 1^st Applicant telephoned Sergeant Man Ka-Leong (“Sergeant Man”) of the Police Community Relations Office (“PCRO”) informing the Police of his intention to submit a written notification for organizing a public meeting on 3 consecutive days from 12 to 14 June 2019 between 10:00 am and 22:00 pm on each day.  At about 3:00 pm on the same day, the 1^st Applicant, on behalf of CHRF, submitted a written notice (“the Notice of Meeting”) to the Police of an intention to hold a public meeting (“the Public Meeting”) outside the Legislative Council Complex at the designated demonstration area under the drum outside Public Entrance 1 of the Legislative Council Complex (“the Drum Area”) and on the pavement of Legislative Council Road and Tim Mei Avenue on 3 consecutive days, from 12 to 14 June 2019, between 10:00 am and 10:00 pm, to protest against the 2019 Bill.  In the Notice of Meeting, the 1^st Applicant estimated that the number of participants at the Public Meeting would be about 500, and provided the Police with his contact mobile telephone number and that of a person (Mr Wong) able to act, if necessary, in place of the 1^st Applicant in accordance with the requirements of POO 8(4).  Later on the same day, the 1^st Applicant gave notice to the Police to amend the end time of the Public Meeting from 10:00 pm to 11:59 pm on each of the aforesaid 3 dates.

7.  Subsequently, after liaison with the Police, CHRF agreed to hold the Public Meeting outside CITIC Tower on Lung Wui Road, instead of outside the Legislative Council Complex.

8.  On 11 June 2019, the Police uploaded onto its website a letter of no objection (“the LONO”) in respect of the Public Meeting to be held between 10:00 am and 11:45 pm on 12 to 14 June 2019 at Lung Wui Road southern pavement.  The following was stated in the LONO:

“(a) Police will deploy officers to assist the public meeting according to the date, time and location mentioned in your notification …

(b) Police will deploy appropriate number of officers to facilitate the safe conduct of the public meeting according to the notified number of participants …

(c) Experiences have shown that in the interests of public safety / public order you shall provide sufficient marshals to remind participants to proceed in a safe manner and appeal to participants to follow the instructions given by the Police throughout the meeting; also, you shall provide details of the contact person of the organiser of this public meeting in case the Police need to liaise with him / her if discussions are required …

(d)  Experiences have shown that messages communicated by the event organiser to the participants can be an effective way to assist the Police to maintain public safety and public order.  For this reason, you or a person nominated by you to act in your place is required to maintain contact with the police officers responsible for the public meeting and assist the Police to communicate with the participants when asked to do so by the Police officers …”

The LONO was not, however, sent to the 1^st Applicant until late on 12 June 2019 (as further described below).

9.  According to the Applicants, on 12 June 2019:

(1)   A stage (“the Stage”) was set up outside CITIC Tower on the southern pavement of Lung Wui Road.

(2)   The Public Meeting commenced at 10:00 am.  The participants sat peacefully on the ground listening to the speeches of leaders of various CHRF member organizations advocating for peaceful, rational and non-violent protest against the 2019 Bill.

(3)   Meanwhile, other protestors who were unconnected to the Public Meeting (“the Other Protestors”) assembled around the Legislative Council Complex and nearby roads.

(4)   At or around noon, more people joined the Public Meeting such that the vehicle lanes on Lung Wui Road were also occupied by participants of the Public Meeting.  Nevertheless, the Public Meeting continued to remain peaceful.

(5)   At about 3:00 pm, scuffles occurred between the Other Protestors and police officers in the vicinity of the Drum Area (“the LCC Disturbance”).

(6)   At about 3:30 pm, the Police proceeded to disperse the Other Protestors gathered in the vicinity of the Drum Area by using tear gas, pepper sprays, rubber bullets and bean bag rounds.  The Other Protestors started to disperse in all directions.

(7)   At all material times, the Public Meeting remained peaceful and unconnected to the LCC Disturbance.  The 1^st Applicant told the participants to remain calm, emphasizing that (i) the Public Meeting was a peaceful one, and (ii) the participants should stay and sit on the southern pavement of Lung Wui Road as permitted by and in accordance with the LONO.

(8)   After the Police dispersed the Other Protestors in the vicinity of the Drum Area, they continued their clearance operation by using more tear gas near the roundabout at the junction of Tim Mei Avenue and Lung Wui Road (“the Roundabout”).  Some of the Other Protestors ran towards Lung Wui Road and joined the crowd at the Public Meeting.

(9)   At about 3:34 pm, during the Police’s dispersal of the Other Protestors in the vicinity of the Drum Area, the 1^st Applicant called Sergeant Man to inquire about any potential clearance operation in relation to the Public Meeting.  Sergeant Man told the 1^st Applicant that he was not aware that the Police had any plans to disperse the Public Meeting.

(10)    At around 4:00 pm, police officers formed 2 cordon lines: one at the Roundabout (“the Tim Mei Cordon Line”), and the other at the intersection of Lung Wui Road, Lung Hop Road and Performing Arts Avenue (“the Lung Hop Cordon Line”).

(11)    At around 4:09 pm, without any prior warning or announcement, police officers unleashed tear gas grenades from both sides of Lung Wui Road to disperse the crowd gathered outside CITIC Tower.  Many of the tear gas grenades were fired directly into the crowd, including three fired from the Tim Mei Cordon Line which landed at the back of the Stage, and six from the Lung Hop Cordon Line which landed in the middle of the crowd.

(12)    The Police did not inform the crowd that they were going to use force on them if they refused and/or failed to disperse, or give the crowd sufficient time to comply with the Police’s directions.  The Police also did not offer the crowd a safe route to leave the area in a peaceful and orderly manner.  The only apparent escape route was through the main foyer of CITIC Tower as the Police had surrounded the crowd from both ends of Lung Wui Road (by the Tim Mei Cordon Line and Lung Hop Cordon Line).

(13)    The tear gas engulfed the crowd gathered outside CITIC Tower from both sides, sending everyone into a frenzy.  The crowd was coughing, screaming and running around in fear as the tear gas irritated their eyes and skin.  At the same time, both the Tim Mei Cordon Line and the Lung Hop Cordon Line were moving towards the crowd, who were effectively trapped in between.  The crowd tried to escape the tear gas by rushing into CITIC Tower through an open door which was the only apparent escape route for them.  Chaos ensued as many people tried to get through the door into CITIC Tower.

For ease of understanding, a map of the Central Government Complex Area[1] is attached to this judgment as “Annex A”.

10.  On the other hand, according to the Police:

(1)   On 11 June 2019, CHRF and the 1^st Applicant held a press stand-up outside the Legislative Council Complex actively inciting the public to besiege the Legislative Council Complex on 12 June 2019 until 20 June 2019.  The press stand-up was attended by other political figures and attracted a lot of media coverage.  The 1^st Applicant was prominently calling for on Hong Kong people to surround the Legislative Council Complex.

(2)   There were also online discussions prior to and throughout 12 June 2019 calling on people to (i) surround the Legislative Council Complex and the Central Government Complex and block major roads to prevent Government officials from turning up for work and commencement of the Second Reading of the 2019 Bill, (ii) escalate the level of violence to pressurize the Government to withdraw the 2019 Bill, and (iii) attack police officers with the use of petrol bombs and storm the Legislative Council Complex.

(3)   In the early morning of 12 June 2019, a large number of protestors assembled in Admiralty and Central near the Central Government Complex, and started blocking Lung Wo Road.

(4)   At about 8:00 am, a number of vehicles were trapped by the protestors at the Lung Wo Road underpass, including three police vehicles and a government private car with the Secretary for Environment and his assistant on board.

(5)   By about 9:30 am, the protestors had blocked most of the major thoroughfares in Admiralty and Central including Cotton Tree Drive, Lung Wo Road, Harcourt Road, Lung Wui Road, Performing Arts Avenue and Lung Hop Road with mills barriers, traffic cones and other objects.

(6)   By about 10:22 am, all access routes to the Central Government Complex were fully blocked.

(7)   The protestors also collected weapons from the Admiralty area, including bricks and iron poles from construction sites near Legislative Council Road and Lung Wo Road, and transported the same to the areas around the Central Government Complex.

(8)   At about 11:00 am to 12:00 noon, the protestors began to escalate their level of violence by committing threatening and provocative acts at the junction of Harcourt Road and Tim Wa Avenue.  Thousands of protestors in masks and wearing protective gears started charging police checklines, and used mills barriers to form barricades between themselves and police officers guarding the entrances of the Central Government Complex.  Some of them also tried to climb into the West Wing of the Central Government Complex and the fence of the Legislative Council Complex.

(9)   By about 12:15 pm, the protestors had fully blocked Queensway.

(10)    From about 3:00 pm, the situation around the Central Government Complex began to deteriorate when the protestors at the front continuously charged towards the police cordon line violently.  More scuffles broke out between the protestors and the police in the vicinity of the Legislative Council Complex, with the protestors attempting to charge the Legislative Council Complex.  The police officers were outnumbered by the protestors. They broke into the forecourt of the Legislative Council Complex in a bid to breach the building, hurling bricks, rocks, bottles, wooden planks, umbrellas, iron poles, construction materials, burning objects and mills barriers at the police officers.  They ignored the police’s warning and advice, and repeatedly charged towards the police cordon line violently.  Widespread disorder, property damage and breach of the peace scattered around the Central Government Complex and the Legislative Council Complex, and major roads and junctions in the Admiralty area.

(11)    At about 3:12 pm, a large number of violent protestors in helmets and masks repeatedly charged against police checklines at both ends of Tim Wa Avenue with hard objects and mills barriers.

(12)    At about 3:18 pm, banner warning was given by police officers (“Stop Charging or We Use Force停止衝擊 否則使用武力”) at the junction of Tim Wa Avenue and Harcourt Road, as the police checkline was subjected to relentless attack from protestors at Harcourt Road.

(13)    At about 3:36 pm, the police officers outside the Legislative Council Complex also gave banner warning (“Stop Charging or We Use Force停止衝擊 否則使用武力”) to the protestors that the police would use force unless they stopped charging the police checkline.  However, the protestors did not pay heed to the police’s warning and continued to breach the police checkline.

(14)    At about 3:43 pm, the Police’s Headquarters Command and Control Centre (“HQCCC”) gave a general instruction by radio to the frontline police officers that tear gas might be used.

(15)    At about 3:45 pm, Chief Superintendent Dover (“CS Dover”) commenced the “Vehicle Rescue Plan” to rescue the trapped police and government vehicles in the Lung Wo Road underpass.  Police platoons led by Superintendent Shave (“S Shave”), under the instruction of CS Dover, proceeded to the junction of Lung Wui Road, Lung Hop Road and Performing Arts Avenue to set up checklines as a diversion to the protestors to enable the team led by CS Dover to proceed to rescue the besieged vehicles.

(16)    At about 3:46 pm, police officers retreated to inside the Legislative Council Complex in light of the escalating attacks from the protestors.  The police officers gave verbal warnings to the protestors and deployed tear gas beneath the Drum Area against the protestors.

(17)    At about 3:47 pm, when S Shave arrived at the junction of Lung Wui Road and Long Hop Street, barricades set up by protestors were about 20 metres deep and waist high, consisting of mills barriers positioned across the eastbound and westbound carriageways of Lung Wui Road. The protestors also set up a “wall” of open umbrellas pointing towards the police checkline, obstructing their view of the people and their activities behind.  The crowd displayed hostility to the police through taunts and shouting abuse, and occasionally threw hard objects towards the police.  S Shave assessed that it was an “extremely dangerous environment”, and considered that it would require the police officers to break their formation to cross the barricades safely.  Senior Inspector Leung Seen Yan (“SI Leung”) turned up the volume of her loudhailer and warned the crowd that possible police force would be used if they did not leave.

(18)    At about 3:47 pm, the protestors broke through police checklines at both ends of Tim Mei Avenue and attacked police officers with umbrellas, helmets, construction materials and burning objects.

(19)    At about 3:54 pm, CS Dover’s platoons conducted sweeping operation along Lung Wo Road, and issued both verbal and banner (carrying the words “Warning Tear Smoke”) warnings to the protestors.

(20)    At about 3:57 pm, CS Dover’s platoons reached the junction of Lung Wo Road and Legislative Council Road where several hundreds of protestors started throwing projectiles and missiles at police officers.

(21)    At about 4:00 pm, CS Dover was notified by HQCCC that apart from rescuing the vehicles trapped under the Lung Wo Road underpass, he needed to urgently rescue and assist the police officers inside the Legislative Council Complex and to clear Tim Mei Avenue down to Harcourt Road.

(22)    CS Dover therefore split the sweeping party into two, with one team sweeping westwards along Lung Wo Road and the other (headed by him) proceeding south along Legislative Council Road.  While sweeping southwards along Legislative Council Road, protestors continued to throw missiles at his direction and fled southwards and mingled with the crowd gathered outside CITIC Tower.  To disperse the violent protestors, CS Dover’s platoons deployed tear gas between about 3:58 pm and 4:04 pm.

(23)    At about 4:04 pm, CS Dover arrived at the Roundabout and saw the violent protestors that had earlier taken part in the attacks at the Legislative Council Complex mingle with the crowd on Lung Wui Road.  He considered that it was not feasible to single out the violent protestors from the crowd.  The protestors who were outside CITIC Tower had been and continued to display hostility through taunts and shouting abuse and throwing hard objects towards the police.  CS Dover considered it necessary therefore to urgently disperse all those in the vicinity of the Legislative Council Complex and CITIC Tower to restore order in the area.

(24)    At about 4:07 pm, CS Dover instructed S Shave to breach the barricades at the junction of Lung Wui Road and Lung Ho Street and disperse the crowd along Lung Wui Road towards Tim Mei Avenue so that S Shave’s team could link up with CS Dover’s team and sweep the protestors along Tim Mei Avenue in the direction of Harcourt Road.  CS Dover decided to disperse the crowd on Lung Wui Road because the violent protestors would likely outnumber the sweeping party heading south along Tim Mei Avenue towards Harcourt Road, and those protestors gathered on Lung Wui Road would be at the rear of the sweeping party if they continued to sweep along Tim Mei Avenue without first dispersing the protectors on Lung Wui Road.

(25)    CS Dover also instructed police officers to form a new checkline at the junction of Legislative Council Road/Lung Wui Road and Tim Mei Avenue and to move back towards the Legislative Council Complex (northwards), in order to leave Tim Mei Avenue as an unblocked escape route for the protestors to leave the area.

(26)    At about 4:09 pm, S Shave instructed two of his platoons to deploy tear gas to the barricaded area to disperse the crowd on the other side of the barricades on Lung Wui Road.  The use of tear gas was necessary so that the police would be able to maintain a safe distance from the protestors while attempting to move through and cross the barricades.  After tear gas was deployed, the protestors started to retreat along Lung Wui Road in the direction of Tim Mei Avenue.

(27)    By about 4:12 pm, the protestors had retreated sufficiently away from the barricades, and S Shave’s platoons moved through the barricades and formed a new checkline on the other side of the barricades.

(28)    During that time, outside CITIC Tower, speakers were speaking on the Stage through a powerful public announcement (“PA”) system, making it very difficult for CS Dover and S Shave to communicate with other police officers, and for police officers to use their loudhailers to give directions to the crowd to disperse via Tim Mei Avenue.  CS Dover approached the Stage and saw Mr Lee Cheuk-yan using a microphone connected to the PA system telling the crowd to enter CITIC Tower.  CS Dover stopped Mr Lee using the PA system and seized his microphone.

(29)    At about 4:22 pm, S Shave continued the sweeping operation along Tim Mei Avenue in a southerly direction.  He saw that Tim Mei Avenue was an available route and was in fact used by many protestors as an escape route towards Harcourt Road.

(30)    All the protestors were eventually dispersed from the Admiralty and Central areas in the late evening of 12 June 2019.

11.  Pausing here, I should mention that while there is some measure of agreement on the broad picture of what happened on 12 June 2019 as put forward by the Applicants and the Police, there remain many important factual disputes between the parties which I shall further identify below.  The disputed facts have not been tested by cross-examination, and the court in an application for judicial review is not in a position to resolve those disputes even with the assistance of contemporaneous photos and video recordings which the court has examined with care.  I shall come back to this matter later in this judgment.  For the avoidance of doubt, I should make it clear that the facts and matters as stated in §§9 and 10 above, where they are in dispute or controversial, should not be regarded as facts found by the court on the evidence before it.

12.  At around 11:00 pm on 12 June 2019, the Commissioner issued the Notice of Prohibition.  At about 11:15 pm, the 1^st Applicant received both the LONO and the Notice of Prohibition from Sergeant Man via WhatsApp message.  In the Notice of Prohibition, it was stated that although the Police had issued the LONO on 11 June 2019, in view of the violent and unlawful activities occurring around the Central Government Complex on 12 June 2019, including the blocking of various thoroughfares on Hong Kong Island, serious damage done to the Legislative Council Complex, CTIC Tower and the Central Government Complex, and the storming of police defence lines, the Police decided to categorize the Public Meeting as a riot.  Accordingly, the Commissioner decided to prohibit the holding of the Public Meeting based on reasons of public safety and public order pursuant to POO 9(1).

APPLICATION FOR JUDICIAL REVIEW

13.  On 11 September 2019, the Applicants made the present application for leave to apply for judicial review of the three decisions or matters mentioned at the beginning of this judgment.  The following grounds of judicial review are advanced in the Form 86, at §53:

(1)   The Dispersal by Tear Gas Decision was unlawful and unconstitutional because:

(a)    it amounts to a breach of the right to be free from torture or cruel, inhuman or degrading treatment or punishment (“CIDPT”) under BOR 3, and/or a breach of the right to life under BOR 2 (“Ground 1”);

(b)   it constitutes use of unreasonable force and amounts to a violation of POO 46 and/or CPO 101A (“Ground 2”); and

(c)    it is premised on a misinterpretation/misapplication of the Police’s internal guidelines regulating (i) the use of tear gas grenades contained in the Police’s internal “Weapons Training Manual”, Chapter 13, Annex B titled “The Use of Tear Smoke” (February 2019 version)[2] (“WTM 13”) and (ii) the use of force and firearms contained in PGO 29 (“Ground 3”).

(2)   If and insofar as the Police seeks to rely upon POO 17(2) and/or (3) to justify the Decision, those provisions are unconstitutional in that they place unreasonable restrictions on the right to lawful assembly and/or give the Police sweeping and excessive powers to ban, stop and disperse a notified assembly (“Ground 4”).

(3)   The Dispersal by Tear Gas Decision and POO 17(2) and (3) unjustifiably restrict the right to freedom of peaceful meeting guaranteed by BL 27 and BOR 17, and violated BL 4 (“Ground 5”).

(4)   It is ultra vires/illegal for the Commissioner to issue a notice of prohibition with less than 24 hours’ notice and/or once the public meeting as notified under POO 8 has commenced (“Ground 6”).

GROUNDS 1, 2 AND 3: LEGALITY AND CONSTITUTIONALITY OF THE DISPERSAL BY TEAR GAS DECISION

14.  The focus of the Applicants’ complaint under Ground 1 relates to the deployment of tear gas by the Police to disperse the Public Meeting, which the Applicants contend was in breach of (i) BOR 2 and 3, (ii) POO 46 and/or CPO 101A, and (iii) PGO 29 and WTM 13.  I shall first set out the relevant provisions relied upon by the Applicants and briefly explain their meaning and effect, before I consider their application to the facts of the present case.

15.  BOR 3:

(1)   It provides that: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment …”

(2)   The right not to be subjected to torture or CIDTP under BOR 3 is absolute and non-derogable (Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, at §§114-115).

(3)   To constitute CIDPT, the ill-treatment in question must attain “a minimum level of severity”, which “generally involves actual bodily injury or intense physical or mental suffering” or “humiliates and debases an individual, diminishing his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance” (Ubamaka, at §§172-173).

(4)   It is a question of fact and circumstances in any given case whether the minimum level of severity is attained.

(5)   Strasbourg jurisprudence on Article 3 of the European Convention on Human Rights (“ECHR”), which is materially the same as BOR 3, establishes that in respect of a person who is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the rights set forth in that article (Ribitsch v Austria (1996) EHRR 573, at §38; El-Masri v Macedonia (2013) 57 EHRR 25, at §207; Bouyid v Belgium (2016) 62 EHRR 32, at §88).

(6)   In Bouyid, the European Court of Human Rights held, at §101, that a violation of ECHR 3 would occur in such a situation even if the minimum severity threshold for degrading treatment had not been attained:

“The Court emphasises that the words ‘in principle’ cannot be taken to mean that there might be situations in which such a finding of a violation is not called for, because the above-mentioned severity threshold (see paragraphs 86-87 above) has not been attained. Any interference with human dignity strikes at the very essence of the Convention (see paragraph 89 above). For that reason any conduct by law-enforcement officers vis-à-vis an individual which diminishes human dignity constitutes a violation of Article 3 of the Convention. That applies in particular to their use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.”

(7)   In Izei v Turkey, App No 42606/05, 23 July 2013, at §55, the European Court of Human Rights stated:

“… recourse to physical force which has not been made strictly necessary by a person’s own conduct is in principle an infringement of the right set forth in Article 3 of the Convention. In this connection, the Court reiterates that the undeniable difficulties inherent in the fight against crime cannot justify placing limits on the protection to be afforded in respect of the physical integrity of individuals” [emphasis added].

(8)   In the same case, the European Court of Human Rights also stated, at §54, that ECHR 3 “does not prohibit the use of force for effecting an arrest”, but “such force may be used only if it is indispensable and it must never be excessive”.  The same principle should, in principle, apply where the police use force to prevent a breach of the peace.

16.  BOR 2(1):

(1)   It provides that: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”

(2)   This provision adds nothing of substance to the Applicants’ argument under BOR 3, and does not require further consideration.

17.  POO 46:

(1)   POO 46(1) provides that: “Whenever in this Ordinance it is provided that such force as may be necessary may be used for any purpose, the degree of force which may be so used shall not be greater than is reasonably necessary for that purpose.”

(2)   For the purpose of the present discussion, this provision should be read together with POO 45(a), which provides that: “Without prejudice to any other powers conferred by this Ordinance, any police officer may use such force as may be necessary - (a) to prevent the commission or continuance of any offence under this Ordinance”.

18.  CPO 101A provides that: “A person may use such force as is reasonable in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

19.  PGO 29-01, titled “Use of Force”, states as follows:

“ Police officers shall display self-discipline and exercise a high degree of restraint when dealing with the public and shall not resort to the use of force unless such action is strictly necessary and he is otherwise unable to effect the lawful purpose.

2. Police officers shall identify themselves as such and, when circumstances permit, a warning shall be given of the intention to use force and of the nature and degree of force which it is intended to use. Persons shall be given every opportunity, wherever practicable, to obey police orders before force is used.

3.    The principle governing the use of force is that only the minimum force necessary to achieve the purpose may be used and once that purpose has been achieved, the use of such force shall cease.  The force used must be reasonable in the circumstances.”

20.  Finally, WTM 13 (under the title “The Use of Tear Smoke”), so far as material, states as follows:

“INTRODUCTION

Throughout the world riots and violent public disorder are becoming an increasingly common occurrence. Whatever the cause, and even though riot suppression tactics have changed over the years, most civil and military authorities agree that the most effective less-lethal weapons against such disturbances are smoke producing chemical agents. As a non-contact use of force, the deployment of chemical agents significantly minimizes the potential for any resulting injury or permanent harm. There are several specific circumstances when it may be necessary to use smoke and these are:-

(a) to move or disperse a crowd whether they be stationery or moving;

(b) to subdue a violent suspect in order to make an arrest;

(c) to neutralise barricaded suspects;

(d) for training purposes.

(a) - (c) will always involve chemical agents i.e. CS whereas (d) may be inert smoke or tear smoke depending on the training requirements.

BASIC PRINCIPLES

Apart from the above considerations, several basic principles exist which are essential to any appreciation and choice of tactics:-

(a) know the area in which the disturbance or riot is occurring …

(b) obtain as much intelligence about the crowd or suspect as possible. For example, have the crowd experience tear smoke before? If they have, they will know what to expect and the effect will be diminished. If the barricaded suspect has a respirator effective against tear smoke there would be little use in using penetrating CS ammunition. Are the crowd angry or just demonstrating? i.e. is the use of smoke likely to make the crowd even angrier, do other measures need to be taken?

(c)  the senior officer must ensure that if tear smoke is to be used then the crowd will have an escape route.  It is essential that the crowd are not subjected to smoke with no chance of escape-this would cause the crowd to panic and strike out blindly.  By choosing the escape route carefully the crowd can be directed accordingly, but care must be taken to ensure that the crowd are not marshalled into sensitive areas or key points.”

21.  Where tear gas grenades are used, more stringent requirements and safeguards should be observed.  In Abdullah Yasa v Turkey (Application No 44827/08), the following was said by the European Court of Human Rights:

“[41] In this connection, having viewed the video recordings and examined all the evidence in the case file, the Court observes that the demonstration was not peaceful. In particular, the demonstrators, most of whom were teenagers, some with their faces concealed, were throwing stones at the police (paragraph 22 above). In the instant case the Court considers that the mere fact of using tear-gas to disperse this gathering does not raise any particular issue under Article 3 of the Convention; the applicant did not contest this.

[42] However, this case is very different from previous ones in which the Court examined the effects of the use of tear gas or pepper spray against demonstrators (see Çiloğlu and Others and Oya Ataman, both cited above) or against persons immobilised by the police (Ali Güneş and Petruş Iacob, both cited above). The instant case concerned not only the use of ‘tear gas’ but also the launching of a tear-gas grenade at the demonstrators. In fact, firing a grenade by means of a launcher generates the risk of causing serious injury, as in the instant case, or indeed of killing someone, if the grenade launcher is used improperly.

[43]     Consequently, given the dangerous nature of the equipment used, the Court considers that its case-law on the use of potentially lethal force should apply in the instant case mutatis mutandis. It should be noted in this connection that in the context of Article 2 of the Convention, the Court has always held that unregulated and arbitrary action by State agents is incompatible with effective respect for human rights (see Makaratzis v. Greece [GC], no. 50385/99, § 58, ECHR 2004‑XI). The same applies to Article 3 of the Convention. This means that police operations – including the launching of tear-gas grenades – should not only be authorised but should also be sufficiently delimited by domestic law, under a system of adequate and effective safeguards against arbitrary action, abuse of force and avoidable accidents.”

22.  In summary, while police officers are entitled to use force in the course of carrying out lawful operational duties, the force actually used should be no more than reasonably necessary in the circumstances of the case to achieve the intended purpose(s).  Where circumstances permit, prior warning should be given of the intended use of force and of the nature and degree of the force that it is intended to use.  The person or persons against whom force is intended to be used should be given an opportunity to obey police instructions before force is actually used.  Moreover, where tear gas is to be deployed to disperse a crowd, police officers should give prior warning of its intended deployment, allow the crowd sufficient time to disperse, and provide a reasonable route for safe and effective dispersal without being subjected to tear gar.  A failure to observe these requirements may lead to the conclusion that the police officers concerned have acted in breach of BOR 3, POO 46, CPO 101A, PGO 29 and/or WTM 13.

23.  While the above principles are, I believe, clear, the question of whether police officers acted in breach of those principles on 12 June 2019 requires the resolution of substantial disputes of facts, including (but not limited to):

(1)   whether the Public Meeting and the LCC Disturbance were “two assemblies (both factually and legally)” as submitted by the Applicants[3], or whether the Public Meeting organized by CHRF was in fact part of the escalating action publicly announced during a press stand-up on 11 June 2019 to besiege the Legislative Council and major roads in the vicinity to force the Government to withdraw the 2019 Bill[4];

(2)   whether the Police had given proper or sufficient notice to the participants of the Public Meeting of the intention to curtail the meeting and to disperse the crowd;

(3)   whether the Police had given proper or sufficient notice of the intention to deploy tear gas to disperse the crowd;

(4)   whether the Police had given sufficient time to the participants to leave the Public Meeting prior to the deployment of tear gas;

(5)   whether the Police had provided a clear and safe route for the participants to leave the Public Meeting, and had given sufficient indication of such route to the crowd - the Commissioner’s case is that Tim Mei Avenue was a feasible escape route and the Police had sufficiently indicated to the crowd to leave via Tim Mei Avenue, while the Applicants’ case is that the crowd was effectively trapped between the two ends of Lung Wui Road by two cordon lines formed by police officers who fired tear gas grenades continuously and simultaneously directly into the Public Meeting and its vicinity[5], and the only feasible escape route for the crowd, which had been sent into a frenzy by the tear gas, was through a single revolving door on Lung Wui Road into CITIC Tower giving rise to a significant risk of a stampede.  At the hearing, Mr Benjamin Yu, SC (for the Commissioner) also mentioned that there was a side entrance to CITIC Tower on Tim Mei Avenue leading to a basement carpark which the crowd could have used to get into CITIC Tower;

(6)   whether the Police had provided assistance to the participants to leave the Public Meeting prior to the deployment of tear gas, including assigning a PCRO officer to police or attend the Public Meeting, and keep in direct communication with the 1^st Applicant (or the person nominated to act in his place where necessary) about any intended clearance operation and other directions/instructions by the Police;

(7)   whether the Other Protestors who took part in the unlawful and violent activities in Central/Admiralty had mingled with the participants of the Public Meeting, and the extent of such mingling;

(8)   whether it was feasible in the circumstances for the Police to “identify and arrest the alleged wrongdoer(s)” who had merged with the participants of the Public Meeting without using tear gas to disperse the crowd, or “differentiate between peaceful and non-peaceful participants” (as contended by the Applicant)[6];

(9)   whether (as alleged by the Police) the 1^st Applicant used, or intended to use, the Public Meeting as a “safe haven to any protestor, off limits to the Police’s law enforcement”[7];

(10)    whether the deployment of tear gas grenades was the “minimum level of force” necessary, or reasonably necessary, for the dispersal of the crowd.

24.  On the materials now before the court, the Applicants’ case that the Police acted in breach of BOR 3, POO 46, CPO 101A, PGO 29 and/or WTM 13 on 12 June 2019 is reasonably arguable.  Whether such case can actually be made out would, however, depend on a proper resolution of the aforesaid factual disputes.  As recently mentioned by this court, an application for judicial review, where evidence is normally given by means of affidavit without cross-examination, is generally an inappropriate means to resolve substantial disputes of facts (see 陳基裘 v 香港政府警務處 [2020] 5 HKLRD 653; at §16; The Hong Kong Journalists Association v The Commissioner of Police [2021] 1 HKLRD 427, at §29).  That this is so is recognized by the Applicants[8].

25.  The question is whether, in such circumstances, the court should simply dismiss Grounds 1, 2 and 3 of judicial review and leave it to the Applicants to commence a writ action (if they so wish) to pursue an ordinary civil action against the Commissioner, or make an order that these proceedings shall continue as if they had been begun by writ under Order 53, rule 9(5) of the Rules of the High Court, which states as follows:

“Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ; and Order 28, rule 8, shall apply.”

26.  Since I have not heard submissions from the parties on the possible application of Order 53, rule 9(5), I shall not dismiss Grounds 1, 2 and 3 of judicial reviews at this stage without giving the Applicants an opportunity to apply, if they wish, for an appropriate order under that rule.

27.  There are two other matters that I should mention in passing.  First, I do not consider that this case raises any issue of misinterpretation or misapplication of WTM 13 or PGO 29 (cf Ground 3 of judicial review).  The question is not whether those provisions were misinterpreted or misapplied, but simply whether they were breached by the Police.

28.  Second, I do not regard the present action as being an abuse of process on the ground that the Applicants have a sufficient remedy by making a complaint to the Complaints Against Police Office or Independent Police Complaints Council.  Quite apart from any issues of “lack of independence” in respect of the former and limitation of “investigative powers” in respect of the latter, it is clear that both bodies do not have the powers to grant the remedies sought by the Applicants in the present application.

GROUND 4: CONSTITUTIONALITY OF POO 17(2) AND/OR (3)

29.  I can deal with the remaining grounds of judicial review briefly.

30.  The Applicants argue that the provisions of POO 17(2) and/or (3) are unconstitutional in that they place unreasonable restrictions on the right to lawful assembly and/or give the Police sweeping and excessive powers to ban, stop and disperse a notified assembly.

31.  POO 17(2) and (3) state as follows:

“(2) Any police officer of or above the rank of inspector may -

(a) prevent the holding of, stop, disperse or vary the place or route of any public gathering, other than a public gathering exclusively for religious purposes, whether or not the public gathering is one to which section 7 or 13 applies; or

(b) stop or disperse any public gathering exclusively for religious purpose or any meeting convened or held in any premises or place which is not a public place or any gathering or procession whatsoever or wheresoever,

if he reasonably believes that the same is likely to cause or lead to a breach of the peace.

(3) For the purpose of exercising the powers conferred by subsections (1) and (2), respectively, a police officer and a police officer of or above the rank of inspector may give or issue such orders as he may consider necessary or expedient, and such police officer and any other police officer may -

(a) use such force as may be reasonably necessary to prevent the holding of, stop or disperse, as the case may be, the public meeting, public procession, public gathering or other meeting, gathering or procession; and

(b) enter any premises or place whatsoever in which any meeting is taking place or any persons are gathered.”

32.  The freedom of lawful assembly is undoubtedly an important fundamental right in any modern society.  It has been described as being of “cardinal importance for the stability and progress of society” (see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, at §§1-2).  This decision of the Court of Final Appeal also confirms that the Government has a positive duty to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully (§22), consistently with BL 4, which states that “The Hong Kong Special Administrative Region shall safeguard the rights and freedoms of the residents of the Hong Kong Special Administrative Region and of other persons in the Region in accordance with law”.

33.  The freedom of lawful assembly is, however, not absolute, but may be restricted provided that two requirements are satisfied:

(1)   the restriction is prescribed by law; and

(2)   the restriction is necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others (see Leung Kwok Hung, ante, at §17).

34.  In respect of the first requirement, a restriction is “prescribed by law” if:

(1)   the restriction is imposed with proper legal authority;

(2)   the restriction is accessible to those affected by it; and

(3)   the restriction is formulated with sufficient precision to enable the citizen to regulate his conduct (see Cheung Tak Wing v Director of Immigration [2020] HKCA 124, at §48).

35.  In the present case, the restrictions on lawful assembly imposed by POO 17(2) and (3) are imposed with proper legal authority, and accessible.  The restrictions are also formulated with sufficient precision: (i) both subsections (2) and (3) impose objective criteria in relation to the exercise of the powers thereunder - the powers under subsection (2) can only be exercised if the relevant police officer “reasonably” apprehends a breach of the peace, while the force which may be used under subsection (3) cannot exceed what is “reasonably necessary”; and (ii) the concept of a “breach of the peace” is a sufficiently clear and well-defined legal concept to be regarded as “prescribed by law”.  See R(Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105, at §137 per Lord Mance:

“The common law requirement to keep the peace has been held by the European Court of Human Rights to be sufficiently clear to be regarded as ‘prescribed by law’: see Steel v United Kingdom (1998) 28 EHRR 603, paragraphs 25-29 and 55. This was on the basis that

‘… the concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property or acts in a manner the natural consequence of which would be to provoke others to violence. It is also clear that a person may be arrested for causing a breach of the peace or where it is reasonably apprehended that he or she is likely to cause a breach of the peace.’”

36.  In respect of the second requirement, the parties agree that it should be approached by reference to the 4-step proportionality test established in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372[9]. Applying this test, I consider that:

(1)   the restrictions contained in POO 17(2) and (3) pursue the legitimate aims of maintenance of public safety, public order and protection of the rights and freedoms of others;

(2)   the restrictions are rationally connected with advancing those aims, in that the Police is authorized to take action to prevent the holding of, stop, disperse or vary the place or route of any public gathering only for the purpose of preventing or restraining a breach of the peace;

(3)   the restrictions are no more than reasonably necessary, because the powers under the two subsections can only be exercised where the relevant police officer reasonably apprehends a breach of the peace arising from the holding or continuation of a public gathering; and

(4)   a reasonable balance between the societal benefits of the encroachment and the inroads made into the constitutionally protected right of lawful assembly is struck in view of the requirement of a reasonable apprehension of a breach of the peace before the Police may take action to prevent the holding of, stop, disperse or vary the place or route of any public gathering under subsection (2), and the fact that the Police may only use “such force as may be reasonably necessary” to achieve the intended purpose(s) under subsection (3).

37.  As pointed out by Mr Yu, the Court of Appeal in Kwok Wing Hang v Chief Executive in Council [2020] 2 HKLRD 771 was clearly of the view that the full range of discretionary powers that the Commissioner could exercise in restricting the freedom of assembly under the POO, including the powers under POO 17, were constitutional:

“[196] The power to order the stopping and dispersal of a gathering under section 17(3) must be exercised for the purpose of maintenance of public safety, public order and the protection of the rights and freedoms of others since the conditions under sections 11(2) and 15(2) can only be legitimately imposed for such purposes...

[203] The compatibility of the statutory scheme under the POO (in respect of public procession) was examined by the Court of Final Appeal in Leung Kwok Hung & Others v HKSAR, supra…

[204] At [47], [50] and [54] ‑ [57], the majority of the Court of Final Appeal highlighted that the discretionary powers of the Commissioner must be exercised for the statutory legitimate purposes, viz, he reasonably considers that the restriction is necessary in the interests of national security or public safety, public order or the protection of the rights and freedom of others. The Commissioner must himself apply the proportionality test in that consideration, see [57].

[205] Though the Court of Final Appeal held that the statutory scheme under the then POO (regulating the discretion of the Commissioner by reference, inter alias, to the concept of order public) did not satisfy the ‘prescribed by law’ requirement, the majority held that such reference to order public could be severed and the remaining concept of public order (in the law and order sense, viz, the maintenance of public order and prevention of public disorder, see [82] and [83]) is sufficiently certain. The majority of the Court of Final Appeal also held that the Commissioner’s statutory discretion to restrict the right of peaceful assembly for the purpose of public order is no more than is necessary to accomplish the legitimate purposes: see [92] ‑ [94]. The convictions were upheld accordingly.

[206] In this connection, though on the facts of the case the conviction was due to the failure to give notification, the Court of Final Appeal also examined the full range of discretionary powers that the Commissioner and the police could exercise in restricting the freedom of assembly and procession: see the analysis of the statutory scheme and the statutory discretion at [43] ‑ [63]. In light of that, it would be surprising if after the severance of order public from the relevant provisions, the majority of the Court of Final Appeal still regarded some aspects of the statutory discretion concerning unauthorized assembly other than the requirement to give notification to be unconstitutional and made no comment on the same.

[227]  In Secretary for Justice v Leung Kwok Wah, supra, the court observed that section 18 (which deals with unlawful assembly) has a pre-emptive effect and the design of the law is to put a stop to a deteriorating situation.  The same observation can be made with regard to the provisions in sections 17 and 17A in relation to unauthorized assembly.  The purpose of empowering the police to order a stop and dispersal of a gathering under section 17(3) is to prevent the escalation of confrontation and disorder when a gathering has given rise to imminent threats to the peaceful enjoyment of the right of demonstration and the rights and safety of other citizens.  It is essential for effective crowd control and the due performance of the positive duty on the part of the police to facilitate lawful assemblies to take place peacefully (as explained in Leung Kwok Hung & Others v HKSAR, supra) that the police could bring a gathering to a halt when there are signs of such imminent threats.”

38.  In the face of these observations by the Court of Appeal, I do not believe it would be open to me, as a judge at first instance, to find POO 17(2) and (3) to be unconstitutional.  In all, Ground 4 of judicial review is rejected.

GROUND 5: THE DISPERSAL BY TEAR GAS DECISION AND POO 17(2) AND (3) UNJUSTIFIABLY RESTRICT THE RIGHT TO FREEDOM OF PEACEFUL MEETING

39.  The answer to the question of whether the Dispersal by Tear Gas Decision unjustifiably restricts the right to freedom of peaceful meeting depends on the resolution of the factual disputes mentioned in §23 above, and cannot be determined on the basis of the existing materials.

40.  In so far as POO 17(2) and (3) are concerned, for reasons given under Ground 4 above, I consider those provisions to be constitutionally valid.  It follows that they cannot be regarded as imposing unjustifiable restrictions on the right to freedom of peaceful meeting.

GROUND 6: WHETHER IT IS ULTRA VIRES/ILLEGAL FOR THE COMMISSIONER TO ISSUE A NOTICE OF PROHIBITION WITH LESS THAN 24 HOURS’ NOTICE AND/OR ONCE THE PUBLIC MEETING AS NOTIFIED UNDER POO 8 HAS COMMENCED

41.  POO 9 states as follows:

“(1) Subject to this section, the Commissioner of Police may prohibit the holding of any public meeting notified under section 8 where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.

(3) The power conferred by subsection (1) shall not be exercised in respect of any public meeting notified under section 8 -

(a) where notice is given in accordance with section 8(1), at any time later than 48 hours; or

(b) where shorter notice of 72 hours or more is accepted by the Commissioner of Police pursuant to section 8(2), at any time later than 24 hours,

prior to the time of commencement of the meeting as so notified.”

42.  This ground has largely fallen away in view of the Commissioner’s clarification or confirmation that the Notice of Prohibition did not have “retrospective” effect, but only prohibited the reminder of the Public Meeting from the time of its issue at 11:00 pm on 12 June 2019 up to 11:59 pm on that day, and its continuation into the following two days (as originally scheduled).

43.  In so far as it is argued that a notice of prohibition can only be given prior to the commencement of the relevant public meeting under POO 9(3), it seems to me that the notice requirements under that subsection have application only where:

(1)   notice of the proposed meeting is given in accordance with POO 8(1) (ie not later than 11 am on the same day of the week in the preceding week as the day on which the meeting is intended to be held, or where the last day for giving notice would fall on a general holiday, not later than 11 am on the first day immediately preceding that day which is not a general holiday); or

(2)   shorter notice of meeting of at least 72 hours is accepted by the Commissioner pursuant to POO 8(2).

44.  In the present case, notice of less than 24 hours was given of the proposed meeting by the 1^st Applicant.  I do not consider that the notice requirements for giving a notice of prohibition under POO 9(3) are applicable in the circumstances of the present case.

45.  Where a public meeting has, as a matter of fact, been stopped or dispersed by the Commissioner prior to its completion, I see no reason in principle why the Commissioner may not give a notice of prohibition in relation to the reminder of the meeting, particularly where the meeting is scheduled to span several days.  Whether the stopping or dispersal of the meeting is unlawful is another matter.

CONCLUSION AND DISPOSITION

46.  Of the 6 grounds of judicial review raised by the Applicants, I do not consider Grounds 4, Ground 5 (in so far as it is contended that POO 17(2) and (3) impose unjustifiable restrictions on the right to freedom of peaceful meeting), and Ground 6, to be reasonably arguable or have a realistic prospect of success.  I would not therefore grant leave to apply for judicial review in respect of those grounds.

47.  The remaining grounds of judicial review, ie Grounds 1, 2 and 3 and Ground 5 (in so far as it is contended that the Dispersal by Tear Gas Decision imposed unjustifiable restrictions on the right to freedom of peaceful meeting) are reasonably arguable and have a realistic prospect of success, but would require the resolution of substantial disputes of facts for their proper determination, which it is not possible to do on the basis of the existing affidavit evidence.  I give leave to the Applicants to apply, if they wish, for an order that these proceedings shall continue as if they had been begun by writ under Order 53, rule 9(5) of the Rules of the High Court within 14 days from the date of this judgment.  Since I have not heard submissions on the applicability of Order 53, rule 9(5), or the appropriateness of making an order under that rule in the circumstances of the present case, I propose to deal with the matter (and also the form of the order and question of costs) by way of written submissions.  I shall give further directions regarding the filing of submissions after the Applicants have informed the court whether they wish to apply for an order under Order 53, rule 9(5).

Annex A