HKSAR v. MATT JAMES PEARCE

HCMA 322/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 322 OF 2009

(On appeal from TWCC3285/2008)

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REASONS FOR JUDGMENT

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1.  The appellant, a self-proclaimed “activist”, was convicted after trial by John Glass, Esquire, Magistrate, of a single charge of Public Nuisance, contrary to Common Law and punishable under s. 101I of the Criminal Procedure Ordinance, Cap. 221, and sentenced to imprisonment for six months. He appealed both conviction and sentence, subsequently abandoning the appeal against sentence. At the conclusion of the hearing I dismissed the appeal and indicated that I would give my reasons later: these are they.

2.  The charge followed upon a demonstration mounted by the appellant on 8 August 2008, timed to coincide with the opening of the Olympic Games in Beijing. The appellant asserts that all that he was doing was exercising his right to mount a peaceful protest and that no one should be charged, convicted and imprisoned for that. He was not.

3.  The particulars of the offence asserted that on that day he had caused a nuisance to the public by unlawfully climbing onto and moving about and between gantries numbered M15D and M25D, and hanging banners thereon, on Tsing Ma Bridge, Hong Kong. As a consequence of his conduct and out of concern for his safety, particularly given that on two occasions he indicated an intention to jump from the gantry, the authorities found it necessary to close both the Kowloon- and Airport-bound carriageways, the entire upper deck, of the bridge to vehicular traffic thereby creating traffic jams which stretched for many kilometres in both directions.

4.  In YEUNG May Wan and Others v HKSAR [2005] 2 HKLRD 212 it was necessary for the Court of Final Appeal to consider convictions relating to charges of obstruction of public place which already had been set aside by the Court of Appeal. After relating the circumstances in which the appellants before it had been arrested, the majority said:

“31.  Central to the case is the fact that the arrests were made and the charges of public place obstruction laid against the defendants because of their conduct in the course of a peaceful public demonstration.  …  Here, the fact that the defendants were at the time of arrest engaged in a peaceful demonstration meant that the constitutionally protected right to demonstrate was engaged.  Indeed, a peaceful demonstration, may also engage the closely related guaranteed freedoms of opinion, expression and assembly.  Such fundamental rights, when engaged, have an important bearing on the scope of the offence of obstruction and consequentially on the scope of police powers of arrest on suspicion of that offence.

32.  Article 27 of the Basic Law is directly in point and relevantly states:

Article 27

“Hong Kong residents shall have freedom of speech, ...... of assembly, ...... and of demonstration......”

33.  By Article 39 of the Basic Law, constitutional protection is also given to freedom of opinion, of expression and of peaceful assembly as provided for in Articles 16 and 17 of the Hong Kong Bill of Rights, those articles being the equivalents of Articles 19 and 21 of the International Covenant on Civil and Political Rights and representing part of the ICCPR as applied to Hong Kong.”

5.  The majority went on to say, of particular relevance to this appellant's conduct:

“42.  …  The suggestion in some of the earlier reported cases that the public’s right to use the highway is limited to the right of passage and re-passage and acts incidental or ancillary thereto, is too narrow.  It is now established that “......the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage” (DPP v Jones [1999] 2 AC 240 at 255E-G per Lord Irvine of Lairg LC; see also Lord Clyde at 279F, and Lord Hutton at 290H).

43.  Many examples of obstructions which may nevertheless constitute reasonable use of the highway can be found in the cases: …  While other users of the road or footpath may be to some extent impeded by such conduct, the law looks upon such cases applying what Stock JA (citing Harper v G N Haden and Sons Limited [1933] 1 Ch. 298, 320) called “the law of give and take”.  It seeks to strike a balance between possibly conflicting interests of different users of the highway based on a requirement of reasonableness.  Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done:  Nagy v Weston, at 80, DPP v Jones, at 257E-G, 281E-F and 293B-C. 

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

6.  Bokhary PJ in a separate, but concurring, judgment observed:

“144.  The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art. 27 of the Basic Law.  In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate.  As to that, I think that the participants in a large or even massive assembly, procession or demonstration will often be able to say with justification that their point could not be nearly as effectively made by anything on a smaller scale.  Subject to this, the most obviously relevant considerations are, I think, how substantial the interference is and how long it lasts.  But other considerations can be relevant, too.  These include, I think, whether the interference concerned had been recently preceded by another act or other acts of interference on another occasion or other occasions.  What the public can reasonably be expected to tolerate is a question of fact and degree.  But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable. 

…

147.  The law calls upon ordinary highway users to accommodate demonstrators’ freedom to demonstrate by tolerating some interference with their own right to pass and repass along the highway.  They are expected to show such tolerance even if they do not sympathise with the demonstrators’ cause.  … 

148.  Then there is the other side of the coin.  The law also calls upon demonstrators to accommodate other people’s rights, especially ordinary highway users’ right of free passage.  For that purpose demonstrators have to tolerate some interference with their own freedom to demonstrate.  Such tolerance is expected of demonstrators however strongly they may feel about their cause.  … “

7.  Those observations seem to me to be as apposite to considering whether a public nuisance has been committed as they are to considering the issue of obstruction, in a situation where a person’s right to demonstrate is also engaged.

8.  Hartmann JA expanded on this approach in Secretary for Justice v Pearce HMCA1078/2008 (unreported, 11 June 2009), a case stated against a finding by a magistrate that there was no prima facie case  for the accused to answer, again this appellant, in respect of an offence of obstruction under s.4(28) of the Summary Offences Ordinance, Cap. 228, saying, at §34:

“… It is self-evident that what may be considered a reasonable obstruction when a number of persons participate in a demonstration may not be considered reasonable when a singly person only conducts a demonstration. It is, in my view, distorted logic to hold that, because 500 demonstrators would reasonably cause a certain level of obstruction to other users of the highway, therefore a single demonstrator is entitled to cause the same level of obstruction.”

and, at §38:

“… The constitutionally protected right to demonstrate does not include the right to harass”

9.  The magistrate was fully alive to the appropriate test which he was required to apply to the prosecution case, making a number of references to the decision of Beeson J in Pearce v HKSAR HCMA1029/2005 & 313/2006, appeals against convictions in respect of offences flowing from earlier demonstrations mounted, again by this appellant, in which the following appears:

“33.  “Public Nuisance” is defined as:

“an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty’s subjects.” (A Digest of Criminal Law (1877) Ch. XIX p. 108 Sir James Stephen)

34.  That basic definition of the common law offence was more recently interpreted and applied by the House of Lords in R v Rimmington [2005] 3 WLR 982 which held it to be committed when a person did an act not warranted by law, or omitted to discharge a legal duty, and the effect of the act or omission was to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone.

…

36.  An essential ingredient of the offence of causing a public nuisance was that it must cause common injury to the public – the community as a whole or a significant section of it.  Individual acts causing injury to several different people could not constitute criminal public nuisance.

37.  The mens rea which had to be proved against a defendant to convict him of causing a public nuisance was that he knew or ought to have known, because the means of knowledge were available to him, the consequence of what he did or omitted to do.”

10.  The magistrate delivered a comprehensive and detailed Statement of Findings which he structured in a manner such as to cover the factual situation of the demonstration, the issue of reasonableness and the appellant's mens rea as well as to specifically address each aspect of the consequences of the appellant's conduct.

11.  An appeal against a magistrate's decision is, of course, a rehearing on the material before the magistrate. The court hearing the appeal is required to arrive at its own decision in regard to criminal liability. I can do no better, however, than to summarise the magistrate’s more important findings of fact as to the events of the morning, without repeating in detail the evidence before him:

the bridge was within Tsing Ma control area, a public place and a public highway to which the public had a right to pass and repass;

the bridge has three vehicle lanes in each direction on the upper deck and one lane in each direction on the lower deck;

the lower deck is open for public use only in certain defined circumstances;

the gantries named in the charge are two separate gantries 5.7 m high and 12.6 m wide and separated by a gap approximately 2 m wide;

although the gantries had safety fencing around them the appellant had climbed onto a parapet which had the effect of making the fencing very low against his body ;

the appellant had crossed the gap between the two gantries by laying down a metal ladder with a sheet of wood on top of it;

the appellant climbed one gantry by 8:12 am and was removed, after being arrested, at 10:15 am;

the appellant had notified the Commissioner of Police and the Director of Fire Services of the fact that a demonstration would occur on 8 August 2008;

"... at stages during the demonstration [the appellant] had put his leg over the gantries to indicate he might jump if anyone tried to go to him; … he had worn a hard hat and a safety harness and a brightly coloured jacket, … he had also put on a horse's head, boxing gloves and used a badminton racket and guitar and had acted out Olympic sports whilst so doing. … he had roamed above all six upper deck lanes during his time on the gantries";

the appellant had neither sought nor obtained permission to climb the gantry: no member of the public was authorised to go onto a gantry platform, it being dangerous to allow the public to do so;

the gantries were deliberately designed and placed in order to provide maximum visibility to drivers;

the appellant hung three banners from the gantries one of which obscured traffic warning lights on that gantry, thus obscuring infomation and potential warnings of danger to motorists;

a driver would be distracted by the appellant's antics and, to some extent, by the banners which he had caused to be displayed;

from when the appellant first scaled the gantry both carriageways were gradually closed until, by 9:18 am, the upper deck was completely closed to traffic;

as a consequence of this closure traffic was heavily congested involving stationary lines of vehicles stretching 4 km in one direction and 12 km in another; vehicles were prevented from accessing/leaving Ma Wan as there was no access provided from the lower deck of the bridge; and

"... even though some vehicles could move using the lower deck there was still a considerable obstruction to a large number of motorists who were jammed in by the closure of the upper deck and caught in the long traffic jams. … there were times when vehicles in the traffic jams needed to reverse before traffic could begin to move even when the upper deck was reopened".

12.  On the evidence before him the magistrate was entitled to make each of those findings of fact. He then went on to apply them to the test which he had earlier noted, holding:

“55.   I found that the defendant had not done something, which was obviously just a legal demonstration... but he had embarked on an activity that I found any reasonable person would consider very dangerous to himself and to the drivers using the bridge. He had, I found, by his activities on the gantries endangered the life and property of the public and he had caused the complete closure of the upper deck and caused huge traffic jams on approach roads, which the lower deck lanes could not alleviate except to a small degree. I found that the defendant's obstruction of the upper deck was far greater than a de minimis obstruction.

56.    I found... that the obstruction had gone well beyond and had "exceeded the bounds of what is reasonable in the circumstances" and what the public would be expected to tolerate in order to demonstrate the defendant's causes, and it had taken place for at least two hours during a time when there would be many ordinary road users on the road using this only road link to the Lantau area. I found therefore that this user by the defendant was not a reasonable balance of user of the bridge public highway.

...

60.... I found the number of motorists and their passengers involved amounted to a substantial number of the ordinary general public and these people had been deprived of their primary right to use the bridge highway for purposes of passage and re-passage.

61.    I also found it could be said that all citizens had suffered a public nuisance caused by the obstruction of the bridge, which was in normal circumstances available to them all for ordinary use.

62.    I found that I could draw the irresistible inference that a large proportion of the people caught in the traffic jams were frustrated and angry by the traffic congestion because of their inability to go timely to their destinations and by their loss of their right of way, which in normal circumstances was openly available to them....

...

72.    I found that the defendant was not being frank with the court when he said that he did not appreciate or foresee that the upper deck of the bridge would be closed and that he would cause the serious congestion that arose, as I found -

...

(g) he knew while he was on the gantry platforms, which were high places with a very good view in each direction over the bridge upper deck, of the effects that his actions were having on the traffic flow on the upper deck of the bridge and I found that despite seeing how bad the situation in each direction had become he still refused to come down until he felt he was ready to do so and he threatened suicide if anyone tried to bring him down before he was ready.”

13.  In my judgment, that approach was, and the findings were, flawless in the circumstances.

14.  The appellant made a number of points in his home-made grounds of appeal which substantially repeated what he had said in argument to the magistrate and which he repeated during the hearing of the appeal. These may be summarised as follows: first, it was the police and fire services department which had created a traffic jam, not he, as a result of their decision to close the entire upper deck, thus it was not he who had created any obstruction; second, that the lower deck of the bridge had been opened meant that road users could still "pass and repass" the bridge; third, the demonstration "only" lasted two hours on a day of particular significance; fourth, traffic jams are a common occurrence in Hong Kong; fifth, no member of the public was called to testify to the effect that his conduct had created a public nuisance; sixth, the doxic argument; seventh, another person who has attracted attention to himself by scaling buildings has not been prosecuted; eighth, the magistrate had hypothesised and expressed opinions; and, ninth, he had taken safety measures and advised the authorities in advance of the demonstration that he intended to demonstrate during which he would act safely and peacefully.

15.  Of course it was the police and fire services department that took the decision to close the bridge and which implemented that decision. They did so because they recognized, and rightly so, that the appellant’s conduct on the gantries constituted a danger to himself and to road users. As the evidence showed, he had placed a leg over the safety fencing on two occasions threatening to throw himself off; he had bridged the gap between the gantries with a makeshift arrangement which simple common sense dictates to have been hazardous; when constructing that bridge and when using it to move from gantry to gantry there were significant periods when the safety harness which he wore was not connected to any anchor; particularly at these times, there was an appreciable danger that he may have fallen; there was a real danger to road users of an accident resulting from the distraction caused by his performance; there was a real danger to road users of an accident resulting from one of the banners breaking loose and dropping to the road below. It was the appellant’s conduct that directly necessitated the authorities taking the action they did.

16.  Whilst it is correct, insofar as the submission goes, that the lower deck of the bridge permitted road users to pass and repass, the evidence is clear that the use of that lower deck placed severe restrictions on the rights of other road users as was demonstrated by the traffic congestion which resulted from closing of the upper deck despite the lower deck being available for restricted passage - and not just users of the bridge but also of users of the highway approaching the bridge for many kilometres. Public nuisance does not require total obstruction, but that the effect of the act or omission is to endanger the life, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone. Moreover, the fact that there may have been an alternative route available does not prevent the conduct on one particular section of highway being a public nuisance, as it interferes with the right of others to enjoy the use of that particular section of highway.

17.  The consequences of the appellant’s conduct was wholly disproportionate and, as such, unreasonable. The right to demonstrate, whilst constitutionally entrenched, is not an absolute right. It is a right to which it may be said that there exists a corresponding obligation: the obligation to exercise that right in such a manner as not to unreasonably interfere with rights enjoyed by other members of the public. The right to demonstrate does not encompass the creation of havoc on the highway.

18.  The significance of the day, the opening of the Olympic Games in Beijing, may well have made it a tempting day upon which to demonstrate but the fact that the demonstration lasted what the appellant describes as "only two hours" does nothing to ameliorate the unreasonableness of the consequences of his conduct. It is obvious that it would have been open to him, as but one example, to scale the gantries, hang the three banners and then descend, in which case the point of his demonstration would still have been made but with only limited adverse effect to other users of the highway. It was persisting in his dangerous conduct, which went well beyond the bounds of conduct necessary to his demonstration, that obliged the authorities to take the action they did.

19.  That traffic jams are a common occurrence in Hong Kong is an irrelevance.

20.  The fifth and the eighth submissions may be taken together. It was open to the magistrate to draw the inferences that he did as to the reaction of members of the public caught up in the traffic disruption: they were obvious and inevitable inferences which I, too, would draw. There was no necessity for the prosecution to call any member of the public to testify as to his reaction to the situation created by the appellant’s conduct. The evidential requirement is analagous to that considered by the Court of Appeal in R v TO Kwan-hang and Anor HCMA945/1993, an appeal against conviction of an offence of taking part in an unlawful assembly contrary to s. 18(1) of the Public Order Ordinance, Cap. 245, in which it applied Taylor v. DPP (1973) 57 Cr. App. R. 915, and said, in connection with whether a breach of the peace would be apprehended:

“It was not necessary for the prosecution to call civilian bystanders to testify that they had been in fear that there would be a breach of the peace. The evidence given by the police was sufficient to establish that the events which they described were likely to cause not only bystanders who were not participants in the assembly but also those in the assembly who were not in favour of a rush on the police line and wanted to stage a sit-in, to have a reasonable fear that a breach of the peace would be committed.”

21.  The sixth ground advanced by the appellant was that "the public" supported his demonstration. No doubt, some members of the public may well support the views he espouses; no doubt, others do not. But to suggest, as he did, that "everyone" support his conduct is baseless. Nor does it sit easily with his observation that during the hearing that "it is annoying to be in a traffic jam", precisely the finding of the magistrate.

22.  As to the lack of prosecution of another person who has climbed prominent buildings in Hong Kong, apart from the fact that the prosecution or lack of prosecution of another is irrelevant to these proceedings the fact is that the appellant was not prosecuted for climbing onto the gantries but for the consequences of his ongoing conduct which resulted in the creation of a public nuisance.

23.  The final submission by the appellant was that there was a complete overreaction by the authorities, such as would not have occurred in other jurisdictions, specifically by virtue of the fact that he had notified the authorities in advance of the intent to demonstrate and assured them that he would carry out his demonstration safely and peacefully.

24.  That is a thoroughly disingenuous submission when it is appreciated that although, indeed, the appellant did warn the police and fire services departments some time in advance of his intention to demonstrate on that day, he deliberately concealed from them, until the very last moment, where the demonstration would take place. Moreover, during the demonstration he refused to answer telephone calls from or to respond to messages sent to him by the police, despite having provided them with his telephone numbers.

25.  The appellant further raised a query why, in the light of the comments of Beeson J in HCMA1029/2005 & 313/2006, he had been charged with the common law offence of public nuisance rather than obstruction contrary to the Summary Offences Ordinance. The creation of a statutory offence does not abolish, of necessity, an existing common law offence, absent express indication: the restriction, if it maybe regarded as such, is against the prosecution charging a common-law offence with the express purpose of circumventing the statutory offence, especially, perhaps, as to either time limits or penalty.

26.  Lord Bingham of Cornhill expressed it in this way in R v Rimmington, R v Goldstein [2005] UKHL 63:

”30.   … I would not go to the length of holding that conduct may never be lawfully prosecuted as a generally-expressed common law crime where it falls within the terms of a specific statutory provision, but good practice and respect for the primacy of statute do in my judgment require that conduct falling within the terms of a specific statutory provision should be prosecuted under that provision unless there is good reason for doing otherwise.”

27.  It seems to me that good reason for prosecuting the appellant under the common law offence clearly existed in the instant matter: why, when one has regard to the facts and the levels of unreasonable interference with the rights of others, the appellant was charged with the statutory offence of obstruction in respect of the proceedings which gave rise to HCMA 1078/2008 and the common law offence of public nuisance in respect of these proceedings. As Ms Lam, who appeared for the respondent, indicated the single major consideration was the factor of common injury, so prominent in these proceedings, which was a factor absent from s. 4(2) of the Summary Offences Ordinance.

28.  The appeal was devoid of any merit and was consequently dismissed.