HKSAR v. NG MAN YUEN AVERY AND OTHERS

[English Translation – 英譯本]

HCMA 492/2019

[2020] HKCFI 2425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 492 OF 2019

(ON APPEAL FROM WKCC 3654/2017)

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JUDGMENT

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Introduction

1.  There were originally 9 defendants in this case. The 1^st, 2^nd and 3^rd Appellants (“A1”, “A2” and “A3”) were respectively the 1^st, 6^th and 8^th Defendants in the trial. The charges against the Appellants were as follows:

Appellant		Charge
A1	(1):	Inciting others to take part in an unlawful assembly[1]
	(2):	Inciting others to behave in a disorderly manner in a public place[2]
	(4):	Inciting others to take part in an unlawful assembly
	(5):	Inciting others to behave in a disorderly manner in a public place[3]
A2	(6):	Obstructing a police officer in the due execution of his duty[4]
	(7):	Assaulting a police officer in the due execution of his duty[5]
A3	(10):	Taking part in an unlawful assembly[6]

2.  All the Appellants pleaded not guilty to the charges. After trial, Magistrate Ms Peony Wong (“the Magistrate”) found A1 guilty of Charges (1)[7] and (4)[8]; A2 guilty of Charge (6)[9] but not guilty of Charge (7); and A3 guilty of Charge (10)[10]. All the Appellants appealed against their convictions. 

The facts of the case and evidence

3.  The Prosecution called 19 witnesses in total. In addition, the evidence of four prosecution witnesses was admitted pursuant to section 65B of the Criminal Procedure Ordinance, Cap. 221, Laws of Hong Kong. As to the Defence, all the Defendants elected not to give evidence or call any witness[11].

4.  The Prosecution submitted the video recordings of the procession and the assembly relevant to the charges as evidence[12], and the highlights of such recordings[13] were the main basis upon which the Magistrate decided the case[14].

The background facts

5.  The following background facts are not disputed by the parties:

(1)  Around 3 p.m. on 6 November 2016, a public assembly was held at the designated public activity area on Luard Road, Wan Chai. The meeting was organized by “Civil Human Right Front” with “Anti-interpretation of the Basic Law by the National People’s Congress” as the subject-matter, and the police had been notified beforehand. After the assembly, some people started a procession around 3:30 p.m., and prior to that the police had been notified. The original starting point of the procession was the designated public activity area on Luard Road, and the destination was Statue Square in Central. Participants of the procession including A1, A2 and A3 walked along Hennessy Road heading west. 

(2)  Sometime after 4 p.m., some of the participants of the procession did not follow the original route to turn into Bank Street towards the Statue Square. They continued to proceed along Queen’s Road Central and Queen’s Road West heading for the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region (“LOCPG”). Subsequently, other participants of the procession successively chose to proceed along Queen’s Road Central heading west.

(3)  The procession comprising of the aforesaid participants marched along Queen’s Road Central and Queen’s Road West, turned right into Chiu Kwong Street, turned right into Des Voeux Road West, further turned left into Western Street and finally turned left and marched along the pavement into the designated public activity area (“the public activity area”) on the pavement of Connaught Road West. See the procession route map (Prosecution exhibit P40A) for the detail of the actual route taken by the procession.

(4)  Outside Star Seafood Restaurant (“Star Restaurant”) at the junction of Des Voeux Road West and Western Street, the participants of the procession, while waiting for the police to deal with the traffic on Western Street, requested the police to clear the way and pushed towards the police cordon, but later the matter was resolved. This part of the incident was not the allegation of the Prosecution. 

(5)  Later, the police diverted the vehicles from the two traffic lanes of Western Street by directing them to reverse back onto Connaught Road West. The procession entered the carriageway of Western Street between Des Voeux Road West and Connaught Road West, using all the traffic lanes.

(6)  Upon reaching the junction between Western Street and Connaught Road West, the participants of the procession encountered the Mills barriers on the carriageway set up by the police and could not proceed along the carriageway. However, they could pass through an opening (“the opening”) created by prior removal of crash barriers at that junction, step onto the pavement next to the northbound of Western Street and enter the public activity area set up on the pavement of the westbound of Connaught Road West. Later, a small clash between the police and the public arose at the location of Mills barriers at the junction between Western Street and Connaught Road West. However, this clash did not fall within the charges of this case either. Finally, the demonstrators passed through the opening and walked into the public activity area.

6.  At the trial, the allegations of the Prosecution against all the Defendants involved three periods of time. For the sake of convenience, the Magistrate named the three periods of time as “Incident 1”, “Incident 2” and “Incident 3” respectively. To be consistent, I also adopted these abbreviations.

“Incident 1”

7.  In relation to Charge (1) against A1, the Magistrate made the following findings of primary fact[15]:

“63. … after entering the public activity area, [A1] sat on a Mills barrier and conversed with Sergeant Ho[16] for about 5 seconds[17] during which Sergeant Ho pointed his finger to the west. A group of police officers ran from the 1^st left lane of Connaught Road West on the east to the vicinity of [A1][18] and supported a few Mills barriers nearby with hands[19].

64.   [A1] firstly called upon the participants of the procession without an amplifier as follows (simultaneously pointing to the west), “We outnumber the police. Just simply climb out. It’s completely blocked in the front.” “Just simply climb out.” (He moved his fingers in the direction of the road behind and gestured.) Then he repeated generally the same appeal[20].

…

67.   … [A1] called upon the participants of the procession, “Folks, we outnumber the police. We can simply disperse along here and climb out.” “… folks, the police are gathering in front of you and they will not let us go to the area outside the entrance of the LOCPG. We asked the police many times to open one lane to let us walk over there slowly, but the police refused. But today we outnumber the police by tens of times, so we are very calm. There’s no need to pull these Mills barriers, no need (?), (they’re) interlocked. We just climb over the Mills barriers slowly and orderly, and get to the first lane.”

68.   In the video footage, Inspector Luk Ka-wing[21] warned [A1] many times not to incite people to dash out to the road to commit a breach of the peace and endanger traffic safety. [A1] ignored the warnings and continued to call upon the participants of the procession to climb over the Mills barriers.

…

70.   Subsequently, in response to [A1]’s appeal, a group of participants of the procession approached the Mills barriers and started to climb onto the Mills barriers one after the other[22]. Among them, there were the 2^nd, 3^rd, 4^th and 5^th Defendants. They faced in the direction opposite [A1]. The 2^nd and 4^th Defendants were to the left of the direction that [A1] faced, whereas the 3^rd and 5^th Defendants were on another Mills barrier to the right of the direction that [A1] faced. Having stood on the bottom of the Mills barrier, three persons including an unknown male in a red top, the 4^th and 2^nd Defendants quickly and very forcibly, using their body weights, tugged at the Mills barrier in front of them twice[23]. On the other side of the Mills barriers, a few police officers had already formed a human chain to support the Mills barriers. Several police officers in front of the three persons saw the situation and immediately stretched out their hands to push the bodies of the three persons in order to stop their actions.

71.  The 2^nd Defendant, having stood on the Mills barrier[24] and tugged at it, was pushed on his left arm near the shoulder by the police officer in front of him. While being pushed, the 2^nd Defendant kept gripping on to the Mills barrier and leaning forward to resist until he was pushed away from his original position by the police officer and went to the back[25].

72.  The 4^th Defendant also stood on the Mills barrier[26] and tugged at the one in front of him. A police officer then pushed his arm and chest backwards. While being pushed, the 4^th Defendant still forcibly leaned forward to resist, but finally he was pushed backwards and returned to the ground[27].

73.  While the three persons were standing on the Mills barrier and tugging, the 3^rd and 5^th Defendants were approaching another adjacent Mills barrier at the same time. Upon [A1]’s appeal, the 3^rd Defendant approached a Mills barrier[28], stood on it[29], grabbed hold of it with both hands, shook it for about 3 times with medium force[30] and then climbed onto the top of it[31]. The police officer in front of him immediately pressed his chest with his hands, but he further put his left knee onto the top of the Mills barrier, and with his upper body leaning forward over it, attempted to climb over it[32]. Another police officer immediately went forward, pushed the chest of the 3^rd Defendant hard with his hands and successfully stopped him from climbing over the Mills barrier and made him return to the ground[33].  

74. The 5^th Defendant, however, stood on the bottom of the Mills barrier, and with his left hand gripping on to a vertical iron bar of it and his right forearm over it, came in close contact with the top horizontal iron bar of it[34]. A police officer immediately talked to the 5^th Defendant and pushed his chest with his hands. Shortly afterwards, another police officer also put his hands onto the left upper arm of the 5^th Defendant. Having returned to the ground from the Mills barrier, the 5^th Defendant did lean his upper body slightly forward and grab hold of the iron bars of the Mills barrier with both hands. The Mills barrier and his body shook back and forth slightly for 4 times[35]. At the time, the 3^rd Defendant was not far away from his right-hand side with both hands gripping and shaking the iron bars of the Mills barrier. Meanwhile, on another Mills barrier to their right-hand side, the 2^nd and 4^th Defendants shook the Mills barrier hard. ”

“Incident 2”

8.  In relation to Charge (4) against A1 and Charge (6) against A2, the Magistrate made the following findings of primary fact:

“77. Inspector Luk Ka-wing mentioned in his testimony that [A1] moved to a location of 10-odd metres away, sat on a Mills barrier again and called upon the participants of the procession at the scene to dash out to the road with a microphone connected to an amplifier. Inspector Luk Ka-wing, therefore, based on the same reasons of warning in Incident 1, warned [A1].

78. The video highlight 73 revealed that [A1] climbed onto and squatted on the top of the Mills barrier, holding a microphone and talking to the participants of the procession, but the sound was not recorded in the video clip. Then [A1] gestured towards the road behind and said, “Climb out.”[36] … Upon [A1]’s appeal, the 2^nd and 6^th [A2] Defendants climbed onto the top of the Mills barrier one after the other; and the 2^nd Defendant not only climbed onto the Mills barrier, but also suggested to the people nearby with gestures and words, “Climb!”[37]

79. Chief Inspector Gar Kam-lam Alfred[38] climbed onto the bottom of the Mills barrier, shouted once and then immediately pulled the right upper arm of [A1] with both hands from behind, and further put his right arm around the front chest, right shoulder and right upper back of [A1][39]. [A2] turned his head to the direction of [A1] and immediately stretched out each of his hands to support the left side and the right side of the body of [A1] respectively[40]. The 2^nd Defendant leaned his body forward and grabbed hold of [A1]’s waist with his hands[41]. On the other side of the Mills barrier, three police officers (one plain-clothed police officer and two uniformed police officers) immediately stretched out their hands to pull [A1]’s body[42]. Meanwhile, a male in a black top (“the male in black”) stood upright, and with both hands successively stretching out from the left-hand side of the 2^nd Defendant and passing over his left shoulder, grabbed hold of the clothes and body of [A1][43]. [A2] was pulled down from the Mills barrier by a plain-clothed police officer from behind[44]. Later, more police officers joined in[45], and both parties grabbed hold of [A1] while grappling with the other side.

80. Chief Inspector Gar Kam-lam Alfred took out a baton from his trouser pocket, raised it[46] and hit mainly on the hands of the demonstrators while repeatedly saying, “Withdraw (your) hands.” Meanwhile, the male in black did prostrate over the body of [A1].

81. Sergeant Sin Tai-kam[47] pressed on the acupressure points on the ears of the male in black[48], causing him to release and drop his hands which were originally grabbing hold of [A1], his head and upper body to hang forward over the Mills barrier[49]and his action to stop.

82. At the time, Chief Inspector Gar Kam-lam Alfred raised his baton and hit in the direction of the head of the male in black[50]. After that, Chief Inspector Gar Kam-lam Alfred raised his baton again, and meanwhile, Sergeant Sin Tai-kam pressed down the head of the male in black with his right hand, and Chief Inspector Gar Kam-lam Alfred wielded his baton downwards once. Subsequently, [A2] stretched out his left hand and then right hand to attempt to snatch the baton. The 2^nd Defendant also stretched out his left hand to join in the snatch[51]. While the 2^nd Defendant and [A2] were attempting to snatch the baton, Sergeant Sin Tai-kam kept trying to grab the hands of the 2^nd Defendant and [A2] with both hands. Then Chief Inspector Gar Kam-lam Alfred kept wielding his baton in the direction of the 2^nd Defendant, [A2] and the male in black. Subsequently, the 2^nd Defendant said, “Stop further hitting,” while [A2] put his left hand on the occiput of the male in black[52]. Then [A2] said to Chief Inspector Gar Kam-lam Alfred, “You, you hit the head. You’re a bastard.” He also said to Sergeant Sin Tai-kam, “You hit the head. Are you going nuts? Despicable.”[53] Meanwhile he waved his hand backwards at Sergeant Sin Tai-kam twice, while Sergeant Sin Tai-kam was grabbing hold of the forearm of the male in black.

83.   After that, the 2^nd Defendant prostrated over the legs of [A1]. Chief Inspector Gar Kam-lam Alfred raised his baton and hit the 2^nd Defendant on the position of his shoulder. Sergeant Sin Tai-kam assisted in pulling [A1] away in the course of both parties grappling with each other. Finally, the police took [A1] away successfully.” 

“Incident 3”

9.  In relation to Charge (10) against A3, the Magistrate made the following findings of primary fact:

“84. After [A1] had been taken away by the police, the 7^th Defendant made a speech to the participants of the procession in the public activity area with his back towards the road. From the beginning to 01:00 of the video highlight 80, [A3] was all along right in front of the 7^th Defendant on his right-hand side. At 01:01 of the video clip, [A3] turned around to face the road. At the end of the video clip, the 7^th Defendant, whose back was originally towards the road on Connaught Road West, turned around to face the road while shouting “Storm the LOCPG”[54]. At 01:05 of the video clip, [A3] moved to the other side of the 7^th Defendant, but he was still facing the road.

    …

87.   At 01:10 of the video highlight 80, [A3], who was at the back row, suddenly moved forward quickly and dashed towards the gap in the crowd from 01:10 to 01:11. From 01:11 to 01:12 of the video, [A3] moved to the right-hand side of the 3^rd Defendant who was in the first row. From 01:12 to 01:14 of the video, the act of [A3] moving forward appeared a few times, the rhythm of which was obviously different from that of the other people around him.

88.  In the meantime, a lot of the participants of the procession marched towards and pushed the Mills barriers, occupying the entire first left lane and part of the second left lane of Connaught Road West. Police officers retreated to the second left lane, leaving only the outer lane for traffic. As a result, some buses and other vehicles had to travel slowly; some were even stuck on the third left lane at a later stage. Police officers used pepper spray on the participants of the procession, whereas there were participants of the procession at the scene splashing liquid or hurling plastic bottles to the direction of the police.”

10.  During the appeal hearing, I repeatedly watched the aforesaid video highlights relating to each incident at normal speed and slow speed. In my opinion, the descriptions of the Magistrate were not only meticulous but also accurate.    

Grounds of appeal

11.  The grounds of appeal of A1 are as follows:

 (i)  The Magistrate erred in finding that the act of [A1] climbing over the Mills barrier was inevitably behaviour in a disorderly manner;

 (ii)  The Magistrate erred in finding that [A1] incited the participants of the procession to commit an act of unlawful assembly; and

 (iii)  The Magistrate, without sufficient basis of fact, erred in inferring that [A1] intended or believed at the time that the people climbing over the Mills barriers in response to his appeal to climb over them would have the criminal intention to commit an unlawful assembly.

12.  The sole ground of appeal of A2 is that:

“The finding of the Magistrate that [A2] was not genuinely mistaken was unsafe and unsatisfactory.”

13.  The grounds of appeal of A3 are as follows:

(i)  The Magistrate erred in finding that [A3] committed the act of pushing the Mills barrier;

(ii)  The Magistrate erred in finding that the pushing of the Mills barrier was behaviour in a disorderly manner; and

(iii)  The Magistrate erred in finding that the persons at the scene reasonably feared that (1) the persons so assembled would commit a breach of the peace, or (2) would by the act of pushing the Mills barrier provoke other persons to commit a breach of the peace.

The legal principles concerning the appeal

14.  A magistracy appeal is conducted by way of “rehearing” on the testimony and evidence before the magistrate: Chou Shih Bin v HKSAR[55]. In HKSAR v Ip Chin Kei[56], McWalters J (as he then was) summarized some legal principles in dealing with a magistracy appeal, including the following:     

 (1)  The appellate court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

 (2)  The test in determining whether an error by the magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

 (3)  Absent the appellate court identifying any error by the magistrate, the appellant court must still perform its statutory duty of conducting a “rehearing”. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution, the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.

15.  In relation to item (1) above, the appellant court must have regard to the fact that the trial magistrate enjoyed the advantage of hearing and seeing the witnesses giving evidence and that the appellate court does not have such advantage: Raymond Chen v HKSAR[57]. In general, the credibility and reliability of any witness is a matter for the trial magistrate to assess. As pointed out by Barnes J in HKSAR v Chan Wai Yip Albert[58],when the findings of the trial magistrate are shown to be unreasonable, illogical or inherently improbable; or that the trial magistrate has misquoted, omitted or failed to consider and analyse any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

Preliminary issues  

16.  Before considering the respective grounds of appeal of the Appellants, I have to deal with several preliminary issues. The first one is the common issue put forward by both A1 and A3, namely when the Magistrate considered the charge of “taking part in an unlawful assembly” or related charges:

(1)  whether she neglected the constitutional right to hold “spontaneous demonstration” that was exercised by the Appellants at that time; and

(2)  whether the police had faithfully discharged their duty in assisting the demonstrators to exercise their rights to lawful assembly and freedom of expression, especially whether the police had the duty to facilitate the demonstrators to go to the entrance of the LOCPG to hold a peaceful assembly and demonstration, or even arrange a meeting for them to meet with the officials of the LOCPG.

17.  The second is the elements of the offence of “unlawful assembly”.

18.  The third is the elements of the common law offence of “incitement”.

“Spontaneous procession”

The Appellants’ submissions

19.  The Appellants, namely A1 and A3, who were represented by Mr. Kwok and Mr. Tang respectively, cited Kudrevicius v Lithuania[59] in which the European Court of Human Rights held that “spontaneous demonstration” would override the statutory requirement for prior notification in special circumstances, namely where the delay of an immediate response to a current event would have rendered that response obsolete[60].  The Appellants contended that the right to hold “spontaneous demonstration” had been accepted by the Court of Final Appeal and Court of Appeal respectively in Hong Kong in Leung Kwok Hung & others v HKSAR[61] and Leung Kwok Hung v Secretary for Justice & Chief Executive in Council[62].

20.  They submitted that the procession exercised the right to hold “spontaneous procession” early at 4pm on that day.  However, the police failed to fulfil their duty to work in coordination with the procession, which was on the way to the LOCPG.  Later, A1 was taken away from the scene by the police, while the 7^th Defendant made a speech to the demonstrators in the public activities area and shouted to those on the carriageway, “Storm the LOCPG”.  It was once again the exercise of the right to hold “spontaneous procession” and the request to go to the LOCPG.

21.  They further submitted that it was also pointed out in Kudrevicius v Lithuania thatcitizens would inevitably cause disruption to ordinary life, especially disruption of traffic, when they were exercising the right to hold “spontaneous demonstration”.  (“Any demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic.”)  However, in a democratic society, “it is important for the public authorities to show a certain degree of tolerance”.  The Court must look at the particular circumstances of the case and particularly at the extent of the disruption to ordinary life to assess the appropriate degree of tolerance.  (“The appropriate ‘degree of tolerance’ cannot be defined in abstracto: the Court must look at the particular circumstances of the case and particularly at the extent of the ‘disruption to ordinary life’”)[63].

22.  Based on the above, the Appellants submitted that under those circumstances, the police had the positive obligations to secure the effective enjoyment of the right of demonstration of the participants of the procession: see Djavit An v Turkey[64] and Oya Ataman v Turkey[65], including the right to hold assemblies “within sight and sound of their target audience”: see Guidelines on Freedom of Peaceful Assembly[66]。However, the police refused to work in coordination with the procession, including their refusal to close more traffic lanes for the procession in order to facilitate the participants to go to the LOCPG, restricting the participants to stay within the designated public activities area which was at a distance from the LOCPG and so on.  Such refusal had infringed the right of participants of the procession to hold “spontaneous procession”.  The court should appreciate that the behaviours of A1 and A3 were tolerable in a democratic society, and should not consider their behaviours “disruption to public order”.  

Legal principles

23.  Article 27 of the Basic Law provides:

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

Article 39 provides:

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

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

24.  The abovementioned constitutionally protected fundamental human rights and freedom are mainly implemented through the Hong Kong Bill of Rights (“BOR”), Part II of Cap. 383, Laws of Hong Kong. Concerning the right of assembly, Article 17 of the BOR provides:

Right of peaceful assembly

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

[cf. ICCPR Art. 21]

Concerning the right to freedom of expression, which is closely associated with the right of assembly, Article 16 of the BOR provides:

Freedom of opinion and expression

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

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

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

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

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

[cf. ICCPR Art. 19]

25.  It can be seen from the provisions of Articles 27 and 39 of the Basic Law and Articles 16 and 17 of the BOR that both the right of assembly and right of expression are, to a certain extent, subject to the restrictions imposed by law.  The control of meetings, processions and gatherings is listed in Part III of the Public Order Ordinance, Cap. 245.  It is provided in sections 8 and 13A respectively that prior notice of the intention to hold public meetings and public processions shall be given in writing to the Commissioner of Police.  The police powers over meetings, processions and gatherings are conferred by section 17. Sections 17B and 18 respectively provide that “disorder in public places” and “unlawful assembly” are criminal offences.  Before I discuss the elements of the offence under sections 17B and 18 from the perspective of criminal law, I will discuss the legal principles concerning the right of assembly and “spontaneous demonstration” from the perspective of constitutional law.    

26.  In Leung Kwok Hung & others v HKSAR (above), the issue was whether the regulation of meetings, procession and gatherings contained in Part III of the Public Order Ordinance satisfied the fundamental human rights and freedoms protected by the Basic Law.  According to the majority judgment of the Court of Final Appeal, the right of holding peaceful assemblies and freedom of speech involve a positive duty on the part of the Government to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully.  The statutory requirement for notification is constitutional.  In fact, some other jurisdictions in the world also have similar requirements.  Mr. Justice Bokhary PJ pointed out in his dissenting judgment that the requirement for notification in the Public Order Ordinance precluded “spontaneous demonstrations” and was therefore incompatible with due enjoyment of free assembly[67].  However, this view was not accepted by the other members of the Court of Final Appeal.

27.  As held by A. Cheung J (as he then was) in Chan Hau Man, Christina v Commissioner of Police[68], the aforesaid “positive duty” on the part of the Government is not an absolute one, and the “reasonable and appropriate measures” must depend on all the circumstances in the particular case.

28.  The case of Kudrevicius v Lithuania is about the freedom of assembly as protected by Article 11[69] of the Convention for the Protection of Human Rights and Fundamental Freedoms, which is similar to Article 17 of the Hong Kong Bill of Rights.  In that case, the European Court of Human Rights held that the demonstrators could, in special circumstances, continue to exercise their right of assembly outside the original designated area without being dispersed, provided that the “spontaneous demonstrations” did not involve any illegal conducts of the participants[70]:

“92. Article 11 of the Convention only protects the right to ‘peaceful assembly’, a notion which does not cover a demonstration where the organisers and participants have violent intentions ... The guarantees of Article 11 therefore apply to all gatherings except those where the organisers and participants have such intentions, incite violence or otherwise reject the foundations of a democratic society.”

“152. In the case of Bukta and Others (cited above, §§ 35 and 36), the Court held that in special circumstances where a spontaneous demonstration might be justified, for example in response to a political event, to disperse that demonstration solely because of the absence of the requisite prior notice, without any illegal conduct on the part of the participants, might amount to a disproportionate restriction on their freedom of peaceful assembly.

153. The Court has also clarified that the principle established in the case of Bukta and Others cannot be extended to the point where the absence of prior notification of a spontaneous demonstration can never be a legitimate basis for crowd dispersal. The right to hold spontaneous demonstrations may override the obligation to give prior notification of public assemblies only in special circumstances, namely if an immediate response to a current event is warranted in the form of a demonstration. In particular, such derogation from the general rule may be justified if a delay would have rendered that response obsolete.

154. Furthermore, it should be pointed out that even a lawfully authorised demonstration may be dispersed, for example when it turns into a riot.

155. Any demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic … This fact in itself does not justify an interference with the right to freedom of assembly …, as it is important for the public authorities to show a certain degree of tolerance … The appropriate “degree of tolerance” cannot be defined in abstracto: the Court must look at the particular circumstances of the case and particularly at the extent of the “disruption to ordinary life” … This being so, it is important for associations and others organising demonstrations, as actors in the democratic process, to abide by the rules governing that process by complying with the regulations in force … .

156. The intentional failure by the organisers to abide by these rules and the structuring of a demonstration, or of part of it, in such a way as to cause disruption to ordinary life and other activities to a degree exceeding that which is inevitable in the circumstances constitutes conduct which cannot enjoy the same privileged protection under the Convention as political speech or debate on questions of public interest or the peaceful manifestation of opinions on such matters. On the contrary, the Court considers that the Contracting States enjoy a wide margin of appreciation in their assessment of the necessity in taking measures to restrict such conduct …

157. Restrictions on freedom of peaceful assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic.  Since overcrowding during a public event is fraught with danger, it is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering. …”

  (emphasis added)

29.  The European Court of Human Rights said that the abovementioned appropriate “degree of tolerance” could not be “defined in abstracto”, as all the circumstances in the particular case had to be taken into account.  The Court of Final Appeal in Yeung May Wan & Ors v HKSAR[71]applied a test of reasonableness in assessing whether a demonstration taking place on a highway or street has crossed the mark to constitute an offence of obstruction of public place. The Court of Final Appeal on the one hand emphasized the protection to the right to demonstrate, but at the same time pointed out that there was no absolute right to demonstrate even at public places or premises of a public nature:

“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.”

And at HKSAR v Fong Kwok Shan Christine^[72]:

“In short, the proper approach is to focus on the right instead of on property interests, and to examine the validity of any restrictions imposed on its exercise by applying the principle of proportionality within the framework of the permitted restrictions listed in BOR 16.”

30.  The European Court of Human Rights pointed out in Oya Ataman v Turkey that even the assembly was unlawful and without notification, the authorities still had the positive duty to secure the effective exercise of the demonstrators’ right of peaceful assembly.  However, the “requirement for prior notification” enabled the authorities to take necessary measures in order to minimize the disruption to traffic that the demonstration could have caused during rush hour, and to take other measures such as, the presence of first-aid services at the site of demonstrations, in order to guarantee the smooth conduct of the event.  In that case, the European Court of Human Rights found the authorities’ dispersal of the assembly in question was disproportionate, but it is worth noting that the number of people taking part in the assembly in question was at most 50, and there is no evidence to suggest that these people represented a danger to the public order.  Furthermore, the assembly had been dismissed within half an hour by the authorities:

“39. The Court considers, in the absence of notification, the demonstration was unlawful, a fact that the applicant does not contest. However, it points out that an unlawful situation does not justify an infringement of freedom of assembly (see Cisse v. France, no. 51346/99, § 50, ECHR 2002 III (extracts)). In the instant case, however, notification would have enabled the authorities to take the necessary measures in order to minimise the disruption to traffic that the demonstration could have caused during rush hour. In the Court’s opinion, it is important that preventive security measures such as, for example, the presence of first-aid services at the site of demonstrations, be taken in order to guarantee the smooth conduct of any event, meeting or other gathering, be it political, cultural or of another nature.

40. It appears from the evidence before the Court that the group of demonstrators was informed a number of times that their march was unlawful and would disrupt public order at a busy time of day, and had been ordered to disperse. The applicant and other demonstrators did not comply with the security forces’ orders and attempted to force their way through.

41. However, there is no evidence to suggest that the group in question represented a danger to public order, apart from possibly disrupting traffic. There were at most fifty people, who wished to draw attention to a topical issue. The Court observes that the rally began about midday and ended with the group's arrest within half an hour. It is particularly struck by the authorities’ impatience in seeking to end the demonstration, which was organised under the authority of the Human Rights Association.

42. In the Court’s view, where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance.

43. Accordingly, the Court considers that in the instant case the police’s forceful intervention was disproportionate and was not necessary for the prevention of disorder within the meaning of the second paragraph of Article 11 of the Convention.”

31.  The case of Djavit An v Turkey cited by the Appellants is about the repeated obstruction of the applicant from taking part in some contemplated meetings by the authorities, which has nothing to do with “spontaneous demonstrations” and is of little relevance to the present case.

32.  The Court of Appeal in Leung Kwok Hung v Secretary for Justice & Chief Executive in Council followed the judgment of the Court of Final Appeal in Chow Nok Hang that the participants of procession could only hold peaceful assembly by virtue of the right of assembly and they were not entitled to conduct themselves in a disorderly manner and to commit a breach of the peace[73].  By citing Kudrevicius v Lithuania, the Court of Appeal said that demonstration without prior notification to the police as provided by the statutory requirement, was not necessarily (but not the case that it could never be) a reason for dispersal.  Of course, the police enforcement of the law was still subject to proportionality requirement:

“181. For demonstration which has not been authorized, the Court made some general observations at [150] ‑ [153]. Whilst acknowledging that it is essential to have a system of prior notification, the absence of prior authorization does not give carte blanche to the authorities in taking enforcement actions. Such actions would still be subject to proportionality requirement. The Court highlighted that though there could be special circumstances which justify the holding of spontaneous demonstrations without prior notification, such exception must not be extended to the point where the absence of prior notification of a spontaneous demonstration can never be a legitimate basis for crowd dispersal.

182. Thus, the proportionality analysis has to be applied on two different levels:

(1) examining the systemic proportionality by reference to the legislation or rules in question;

(2) examining the operational proportionality by reference to the actual implementation or enforcement of the relevant rule on the facts and specific circumstances of a case at the operational level.”[74] (emphasis added)

33.  The Court of Appeal highlighted the importance of preventing demonstrations deteriorating into riots and crimes, and pointed out that in order to protect others from violence and harm as well as their rights and freedoms, interferences with the right of freedom of assembly were in principle justified[75]:

“229. In this connection, it is noteworthy that in the case of Austin v United Kingdom (2012) 55 EHRR 14, the Grand Chamber of the Strasbourg Court had made these observations at [55] and [56] (omitting the footnotes):

‘55. … In connection with Article 11 of the Convention, the Court has held that interferences with the right of freedom of assembly are in principle justified for the prevention of disorder or crime and for the protection of the rights and freedoms of others where demonstrators engage in acts of violence. It has also held that, in certain well-defined circumstances, Articles 2[76] and 3[77] may imply positive obligations on the authorities to take preventive operational measures to protect individuals at risk of serious harm from the criminal acts of other individuals. When considering whether the domestic authorities have complied with such positive obligations, the Court has held that account must be taken of the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.

56. As the Court has previously stated, the police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to make them. Moreover, even by 2001, advances in communications technology had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown scale.  Police forces in the contracting states face new challenges, perhaps unforeseen when the Convention was drafted, and have developed new policing techniques to deal with them, including containment or ‘kettling’.  Article 5[78] cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of Article 5, which is to protect the individual from arbitrariness.’”

34.  Barnes J also said in HKSAR v. Chung Kin Ping & Others[79]：

“49. The police have a duty to take lawful and appropriate measures to ensure lawful assemblies and processions are conducted in a peaceful manner. The police have to consider public safety, public order and to protect the rights and freedom of others (including participants of processions and assemblies).”

35.  The following legal principles of “spontaneous demonstrations” can be derived from the above cases:

(1)  Lack of a prior notification of demonstration to the police as required by the Public Order Ordinance is not necessarily (but not the case that it cannot be) a reason for dispersal.

(2)  Based on the fundamental right of freedom of assembly and expression as protected by the Basic Law, demonstrators who have not complied with the requirement in the Public Order Ordinance by giving prior notification to the police can still exercise the constitutional right to hold “spontaneous demonstration” in “special circumstances”.

(3)  Any demonstration, whether it is “spontaneous” or not, would inevitably cause disruption to ordinary life, particularly disruption of traffic.  However, demonstrators cannot cause disruption to ordinary lives of other citizens to an exceeding extent, and no illegal conducts can be involved on their parts.  The authorities should show a certain degree of tolerance to the demonstrators. The appropriate degree of tolerance depends on the particular circumstances at that time.

(4)  Concerning “spontaneous demonstration”, the authorities still have the positive duty to take “reasonable and appropriate” measures to enable assemblies to take place peacefully.  What are “reasonable and appropriate” measures must depend on the objective circumstances in the particular case, including the absence of prior notification of the demonstration to the police because the police may not have sufficient time for preparing the corresponding deployment.

(5)  On the other hand, the police also have the duty to prevent demonstrations deteriorating into riots and crimes in order to protect the rights and freedom of others from violence and harm.  However, the police enforcement of the law is still subject to proportionality requirement.

The Magistrate’s Findings

36.  As to whether the police’s refusal to further open the carriageway to facilitate participants of the procession to proceed to the LOCPG is proportionate, it hinges on the issue of “operational proportionality” as set out by the Court of Appeal in Leung Kwok Hung v Secretary for Justice & Chief Executive in Council where the concern was about the assessment of testimonies and evidence and the scope of the finding of facts.  In this regard, the Magistrate had the following findings[80] in her Statement of Findings:

“91.  In relation to the part of the procession on that day which the police received no prior notification, I am of the view that the police did know that some of the participants of the procession might go to the LOCPG to express their opinions.  Off the junction of Queen’s Road Central and Bank Street, the 1^st Defendant and other people spoke on loudspeaker, mentioning about the meeting held at the LOCPG and calling upon the participants of the procession to proceed to the LOCPG to express their opinions.  Thereafter, in the course of the procession, there existed some participants of the procession who were also chanting “Storm the LOCPG” from time to time.

…

93.  Nevertheless, even the police knew that some participants of the procession were going to the LOCPG to express their opinions, it will be irrelevant to this case whether and when the prosecution witnesses knew about the starting and ending time of the meeting.  I am of the view that the police did have the positive duty to ensure the smooth running of the procession.  However, they did not have the duty to ensure that participants of the procession could reach the LOCPG at a particular time or before the completion of a particular event.  The police also did not have the duty to procure a meeting between participants of the procession and certain people. … The police had no responsibility or power to decide when the meeting should start or end.  There was also no evidence at the trial to show that the LOCPG had an official channel to inform the police of the progress and time of the meeting.  The police only learnt that the meeting already ended after the meeting was concluded. … Besides, neither the size of the procession nor its moving speed was under the control of the police.

94.  What the police could control was the technical arrangement only, such as traffic and the route of the procession.  When making the relevant arrangement in practice, the police must consider many different factors, including the right of assembly and procession of the participants of the procession, the right of other citizens, the maintenance of public order, the arrangement for diverting the traffic and the safety of different people.  Although the police had considerable experience in managing processions to the LOCPG as the destination, there was a lapse of several hours between the time when the police learnt in Central that the procession might go to the LOCPG to protest and the time when the procession arrived at Western District. As in this case, no prior notice of the procession was given, the police found it harder to divert the traffic, clear any obstacles and parked vehicles on the road, and arrange for deployment of police force than they would have done so should a prior notice was given.  This is one of the factors that the court has to take into consideration when dealing with the defence’s complaint against the police.      

95.  I am of the view that even if the police deployed their reserved manpower at Western immediately after they realized, at the time the procession arrived in Central, that participants of the procession might go to the LOCPG to express opinions, it would not mean that the police could close the roads or clear them in time so that the procession could continue to proceed once arriving at Western District without having to stop or wait.  In balancing the rights of road users, there could not be a long period of road closure when the time of arrival of the procession was unknown.

…

106.  The defence pointed out that the opening created by the crash barriers at the junction of Western Street and Connaught Road West was very narrow.  It was impractical for the police to request the large number of protesters to pass through that opening.  The defence further stated that the congested crowd at the junction of Western Street and Connaught Road West and their discontented emotion were indeed caused by the unreasonable request made by the police that protesters should pass through the said opening.

107.  I do not agree with the defence’s submission.  It could be seen from the video footage that when the protesters arrived at the junction of Western Street and Connaught Road West, some people without holding up photographic devices had entered Connaught Road West via the said opening.  That opening was wide enough to allow several people to pass through at the same time[81]. Although many reporters were standing at that opening later, protesters could still pass through that place without difficulty or being blocked[82] after the police had called upon the reporters to give way.  What was shown in the footage tallied with what was stated by superintendent Wong Kei Wai[83], namely the opening was 8 to 10 metres wide.

108.  As I consider that the said opening was wide enough for participants of the procession to enter the public activity area from Western Street, I need not consider whether the police should arrange for the procession to enter the public activity area via the footbridge.  In any event, former Western District Deputy District Commander superintendent Lee Man Yiu[84] explained that there was a bend on the footbridge that could cause congestion.  If someone fell down on the footbridge, it could lead to an accident of “human stampede”. Therefore, using the footbridge was more dangerous than using the carriageway.  Also, it was not feasible to use the footbridge, the pavement of Western Street and the carriageway of Western Street at the same time because it involved even more police manpower.  I consider that his analysis is reasonable.

109.  I also noticed that when participants of the procession gathered at the junction of Western Street and Connaught Road West, the police kept making appeals that there was sufficient space to proceed and requested the procession to turn left to enter Connaught Road West via the opening.  The police made the appeal by using quite polite wording and thanked the marchers several times for their cooperation. However, in the video footage shown, there was a female voice calling upon participants of the procession to do the opposite, indicating that the place of assembly was on the driveway outside the LOCPG and asked participants of the procession not to walk onto the pavement[85]. Judging from the content of the words, that female was not speaking on behalf of the police.

110.  Similarly, earlier on outside Star Seafood Restaurant, Wu Sui Shan Suzanne of the Labour Party told participants of the procession on loudspeaker that “running-water-styled protest” would not be accepted and called upon them to sit down outside the LOCPG.  She also reminded the participants of the procession to take care[86] if they had to walk on the carriageway because of the crowdedness on the pavement.

111.  Therefore, I consider that the police was not to be blamed for some of the participants of the procession remaining at the junction of Western Street and Connaught Road West, the clashes between the police and the public, or the discontent of some of the participants of the procession.  At that time, there was a proper passageway to Connaught Road West.  They just opted not to take it instantly but rather stayed on Western Street.

112.  According to superintendent Wong Kei Wai, there was traffic flow in all the traffic lanes other than the first left lane of westbound Connaught Road West.  As shown in the video footage, the traffic was rather busy.  The police stood guard on the first left lane which was closed for vehicles.  Although the procession wished to reach the vicinity of the LOCPG to protest, the front protest area outside the north gate of the LOCPG… could only accommodate dozens of people per group (the number depending on whether props were carried); therefore, when handling the protests having the LOCPG as the final destination, the police would arrange the protesters to wait at the public activity area.  Only after the officers of the Police Community Relations Office had ascertained that participants of the procession were peaceful and non-violent would they allow them to go in batches to the front protest area to protest and then go towards the west to leave.

113.  In his evidence, he also mentioned the reasons for not allowing participants of the procession to use the westbound lane of Connaught Road West was to ensure the safety of participants of the procession, the police and road users, and to avoid any collision regardless of the vehicles’ speed.  He had also taken into consideration that the whole carriageway of Des Voeux Road West had already been occupied by participants of the procession leaving only Connaught Road West as the main carriageway for traffic from east to west.  If Connaught Road West was also blocked, Central and Wanchai would also be affected.  Since the vehicles on Connaught Road West were not far from the public activity area, setting up Mills Barriers outside the public activity area was for the purpose of providing more protection for participants of the procession.

114.  Senior Superintendent Tse Kwok Wai[87] also explained why the public activity area was not set at a location nearer to the LOCPG.  The reason is that the space of the pavement next to the flower bed at the west gate of the LOCPG was smaller than the public activity area outside Kwan Yik Building Phase 3.

115.  I am of the view that the above explanations given by the prosecution witnesses and the crowd management arrangements on Western Street and Connaught Road West made by the police on that day were reasonable.

116.  During cross-examination, Mr Kwok had put his question to police inspector Cheung Lok-tin[88] of the Tactical Unit, Hong Kong Island Headquarters about the possibility of closing the second lane of Connaught Road West for the participants of the procession. The second lane referred to by the defence in cross-examination was actually the second of the four lanes which existed outside the road section between the junction of Connaught Road West and Western Street and the LOCPG.  However, the original first lane no longer existed after passing the junction of Connaught Road West and Western Street; whereas the third and the fourth lanes also merged into one lane outside Kwan Yik Building.  Therefore, the second lane referred to by the defence was the first left lane mentioned by various prosecution witnesses.  Outside the public activity area, there were only the first left, second left and the merging third and fourth left lanes[89].   

117.  If, as suggested by the defence in court, the first left lane was closed for vehicles and the participants of the procession were allowed to proceed to the LOCPG on that lane, the police would have to retreat from the first left lane to the second left lane while only maintaining the merging third and fourth lanes for vehicles. As shown in the video highlights, the traffic in that road section was very busy.  Therefore, the suggestion made by the defence was not feasible.

118.  Based on the above reasons, I do not agree with the proposition that the police had repeatedly obstructed the procession.” (emphasis added)   

Ruling of this Court  

37.  I am of the view that the Magistrate had set a good example of making a thorough and accurate analysis on relevant evidence, which does not contain anything unreasonable.  As regards the assessment of evidence, the Magistrate had the benefit of watching and hearing the witnesses giving evidence that I had not.

38.  I do not accept Mr Kwok’s submission that the Magistrate overlooked the “effective enjoyment of the right” by mistakenly pointing out that the police “did not have the duty to ensure that participants of the procession could reach the LOCPG at a particular time or before the completion of a particular event” and “did not have the duty to procure a meeting between participants of the procession and certain people”.

39.  Firstly, I am not without doubt whether there was any “special circumstance” at the time when the incident occurred such that the protest activities occurred in the vicinity of Western District on that night without any prior notification to the police under the established protocol would be constitutional and legitimate.  As the theme of protest on that day was “Anti-interpretation of the Basic Law by the National People’s Congress”, regardless of whether or not the LOCPG had asked for a meeting with Hong Kong deputies to the National People’s Congress and the National Committee of the Chinese People’s Political Consultative Conference to discuss matters about the interpretation of the Basic Law, the target of protest would still be the LOCPG.  Therefore, there were ample opportunities and reasons for the protesters to give the police a prior notice pursuant to the protocol that the destination of the procession would be the LOCPG instead of the Statue Square in Central.  However, based on the evidence before the Magistrate, many protesters had not been to Statue Square but rather directly walked westbound on Queen’s Road Central heading to the LOCPG.  Thus, it is perceived that the protesters did not intend to disperse after getting to Statute Square but rather they all along intended to go to the LOCPG to protest.

40.  Secondly, just put aside my question whether any “special circumstances” existed, it can be seen from the Statement of Findings that the Magistrate did not regard the protest activities in the Western District as illegal assembly simply because no prior notice was given so that the police had the authority to disperse or stop the assembly.  On the contrary, she agreed that the police “did have the positive duty to ensure the smooth running of the procession” before proceeding to consider whether the measures taken by the police to control the crowd flow and the assembly was appropriate at that time.  It shows that the Magistrate did not ignore the protesters’ right of assembly and the right to freedom of expression.

41.  Thirdly, even adopting a view more advantageous to the Appellant – namely that the protesters were exercising their right to “spontaneous demonstration”, as stated before, the “positive duty” assumed by the police was not absolute but was subject to objective factors of individual matters, including: the geographical features of the scene, the traffic condition, the number of protesters, the police’s manpower and deployment of resources, etc.  Given the expanse of the protesting activities on that day, from Wanchai to Western, and their length, from afternoon till night, the police had certain difficulty in deploying their resources and manpower, particularly where the police were not notified in advance of the areas of the protests from Central to Western.  The sketch of the scene and the video footage show that the roads in the vicinity were narrow and the traffic was busy.  There was a huge flower bed in front of the sea-facing entrance to the LOCPG.  There were driveways on both sides of the entrance for entering and exiting the carpark.  There were 3000 odd protesters at the scene.  There were also many journalists and photographers carrying their equipment.  All of the above caused tremendous pressure on those controlling traffic and managing the crowd.  I agree with the Magistrate’s finding, namely that the crowd management arrangements at Western Street and Connaught Road West were both considerably reasonable and there was no disproportionate restriction imposed on the legitimate rights of the protesters.      

42.  The Guidelines on Freedom of Peaceful Assembly cited by the Appellant does not say the police has the duty to procure a meeting between participants of the procession and the target of the protest.  As regards whether the police could arrange for the protesters to assemble within the sight and hearing range of the target of the protest, it depends on the objective circumstances of the scene at that time.  The Magistrate, who is the one to find the fact, has the authority to accept the explanations given by the prosecution witnesses.  I have considered all the relevant evidence by way of rehearing.  I agree that the section of the road was very busy.  As stated by the Magistrate, if the first left lane was closed for the use of participants of the procession to proceed to the LOCPG on foot as suggested by the defence, it would have been necessary for the police to retreat from the first left lane to the second left lane to stand guard, and only keeping the merging third and the fourth lane open for traffic, which would not be feasible.  I consider that what the police did had balanced the constitutional rights of the protesters and the need to maintain the peace and public order.

43.  Fourthly, I am of the view that although the “public activity area”[90] designated by the police was not at the entrance to the LOCPG, it was sufficiently close to it.  The procession route of the protesters along Queen’s Road West, Chiu Kwong Street, Des Voeux Road West, Western Street and the vicinity of Connaught Road West was actually equivalent to circling half of the outer perimeter of the LOCPG.  Also taking into consideration the number of people assembling at the scene and the scale, the activities in the outskirt area and the gathering on the pavement of Connaught Road West, I have sufficient reasons to believe that those inside the LOCPG would not be unaware of the situation outside.

44.  I have examined the relevant video footage.  The situation at that time was like what was pointed[91] out in Mr Cheng’s submission:

“… both A1(D1) and A3(D8) arrived at the “designated public activity area” outside the north gate of the LOCPG to stage their protest activities on that day.  Upon the time when A1(D1) just entered the “designated public activity area”, there was still ample room in front of him facing the direction of the LOCPG to allow him to move closer to the LOCPG.  Nonetheless, A1(D1) opted not to move closer to the LOCPG, but instead entered the “designated public activity area” and then immediately incited other people at the scene to climb over the Mills Barrier to rush out to Connaught Road West.  On the other hand, after A3(D8) had entered the “designated public activity area” for 40 minutes, he responded to D7’s appeal to “Storm the LOCPG” and pushed the Mills Barrier separating the “designated public activity area” and Connaught Road West to the carriageway of Connaught Road West.  In his submission, the Respondent pointed out that A1(D1) and A3(D8) were actually within the “sight and hearing range” of the LOCPG …”  

The Offence of Unlawful Assembly

45.  Section 18 of the Public Order Ordinance is as follows:

18.  Unlawful assembly

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

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

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

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

(b)  on summary conviction, to a fine at level 2 and to imprisonment for 3 years.

(Emphasis added)

46.  In R v To Kwan-hang & Another[92], the Court of Appeal made it clear that section 18 of the Public Order Ordinance is not inconsistent with Article 17 of the BOR.  It is because the right of peaceful assembly does not mean that the participants can commit a breach of the peace. Macdougall VP[93] said,

“I can find nothing in s. 18 of the Public Order Ordinance which is inconsistent with Article 17. Giving Article 17 a wide and purposive interpretation, it is impossible to say that it was intended to confer a right of assembly on those who conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that those so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace. The opening words of Article 17 speak for themselves, ‘The right of peaceful assembly shall be recognised.’ (Emphasis supplied.) As is to be expected in a democratic society, it is only the right of peaceful assembly that is protected. I think that the position is so clear that no further comment is necessary.”[94]

“I find no merit in the contentions that the protesters were provoked by the District Commander’s decision into rushing the police line in order to enforce their perceived right to assemble wherever they wished, and that they exercised only reasonable force in so doing. The protesters had no right to resort to violence. ...”[95]

47.  In HKSAR v Leung Kwok Wah[96], Lam J (as he then was) stated that the offence of unlawfully assembly was preventive in nature, its purpose was to put a stop to a deteriorating situation, and the ingredients of the offence include the following[97]:

(1)  At the material time and place, when 3 or more persons, assembled together, and they possess the necessary “corporate nature/common purpose”; and

(2)  These persons conducted themselves in the manner of which the nature concerned is as prescribed in section 18(1), that is, they conducted themselves in a disorderly, intimidating, insulting or provocative manner; and

(3)  When these persons conducted themselves in the above manner:

(i)  they intended to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace, which is the subjective limb; or

(ii)  they would likely cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace, which is the objective limb.

The “fear” as appeared in section 18(1) of the Public Order Ordinance is not about fear as to one’s own safety or security.  Rather, it is a fear that one way or another a breach of peace will result.  In order words, the word “fear” in this context means an “apprehension”[98].

48.  In HKSAR v Leung Tin Kei and 2 others[99], the Court of Appeal agreed with the aforesaid reasoning and conclusion of Lam J, and reiterated as follows:

“61. Since Section 18(1) preserves the common law requirement of having a common purpose, the common purpose referred to in the section must be the same as that under the common law. According to the precedents cited above, under the common law, the common purpose for which the people assembled conducted themselves in a way endangering the public peace may be a lawful purpose, or unlawful, or even purely for a breach of the public peace and no other purpose is required. Therefore, even if the offenders just had the common purpose of conducting themselves in the prescribed manner, it is sufficient to satisfy the requirement of common purpose under Section 18(1).” (Emphasis added)

49.  As to the meaning of “a breach of the public peace”, the Court of Final Appeal in HKSAR v Chow Nok Hang[100] cited R v Howell[101] with approval, and stated 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.  However, those who provoke “a breach of the peace” may not necessary be the person(s) who use(s) violence or threatens to use violence[102]:

“77. ... 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.

…

79. However, a person may provoke a breach of the peace without any violence or threat of violence on his part: ‘... it suffices that his conduct is such that the natural consequence of it is violence from some third party’. That third party need not be the person provoked or a by-stander, it could, for instance, be a member of the provoker’s group. The actual or feared harm must be unlawful and, where the harm is anticipated, there must be a real risk and not the mere possibility of such harm. Moreover, the anticipated harm must be imminent.

80. As appears in the passage from R v Howell cited above, a breach of the peace or reasonable apprehension of an imminent breach of the peace gives rise to a common law power of arrest without warrant.  It also gives rise to a power to take measures short of arrest to prevent such breach.”

50.  As to the meaning of “disorderly manner”, Ribeiro PJ (representing the majority view[103]) is of the view that it is best left to the trial judge to apply its ordinary meaning to the time, place and circumstances of the conduct in question[104]. However, Tang PJ dissented on the meaning of “disorderly manner”.  He was of the view that the conduct can only be properly seen as “disorderly manner” under section 17B(1) or (2) if it is sufficiently serious, that is, when such conduct goes well beyond what any citizen, public official or not, would have to tolerate in a democratic society.  In HKSAR v Fong Kwok Shan Christine (above)[105], the Court of Final Appeal adopted the majority view on the meaning of “disorderly manner” in HKSAR v Chow Nok Hang.

The Offence of Incitement

51.  Incitement is a common law offence.  As the Magistrate pointed out:

“33. As regards the offence of incitement, the prosecution must prove the following elements:

(1) The inciter, in a communication to the incitee by words or by conduct (see Mak Sun-kwong v R [1980] HKLR 466 at p. 472), incites the incitee to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the incitee;

(2) The inciter intends or believes that the incitee, if he acts as incited, will do so with the mens rea required for the offence or offences concerned.

(See HKSAR v Jariabka Juraj [2017] 2 HKLRD 266 at paras. 63 and 65)

“The actus reus of the offence is the “incitement” by the defendant of another to do something which is a criminal offence.  He must do so with the intention that if the other person does as he asks he will commit a criminal offence.  That is the mens rea.  On this analysis the intention of the person incited is entirely irrelevant.”

“A person is guilty of incitement to commit an offence or offences if:

(a)  he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and

(b)  he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences.”

34. Mak Sun-Kwong also states that even though the crime is never committed by the incitee, the inciter will still commit the offence of incitement (see p.475 of the case).  Jariabka Juraj also shows that even though the incitee does not intent or is not prepared to commit the crime, the inciter may still be convicted for his act of incitement.”

52.  In criminal law, “incitement” generally refers to encouragement, persuasion, advice, and even threatening of others, or pressuring of others.  The English Court of Appeal in Invicta Plastics Ltd v Claire[106] approved Lord Denning’s interpretation on the word “incite” in Race Relations Board v Applin[107]:

“Mr Vinelott suggested that to incite’ means to urge or spur on by advice, encouragement, and persuasion, and not otherwise. I do not think the word is so limited, at any rate in this context. A person may ‘incite’ another to do an act by threatening or by pressure, as well as by persuasion.”

53.  According to section 101I(2) of the Criminal Procedure Ordinance:

“Where a person is convicted of —

…

(c) incitement,

to commit an offence for which a maximum penalty is provided by any Ordinance, and no penalty is otherwise provided by any Ordinance for such conspiracy or incitement, he shall be liable to be sentenced to that maximum penalty.”

A1’s appeal

Ground of appeal (1): Whether an act of climbing over a Mills barrier constitutes “disorderly conduct”

54.  In respect of this ground of appeal, Mr Kwok put forward the following arguments:

(1)  A “spontaneous procession” took place at the material time in response to a meeting which was being held at the LOCPG. It was natural and necessary for the demonstrators to reach the LOCPG before they could effectively exercise their freedom, expressing their views to the targets in question. There was no reason for the police to refuse to accommodate their spontaneous procession and to facilitate them to reach the LOCPG. The demonstrators were kept at a location of no substantive meaning for the demonstration without basis, which was in the same way as having their constitutional right infringed disproportionately.

(2)  Having regard to the fact that the theme of the procession is of great public interest and the demonstrators’ constitutional right has been infringed unreasonably, the act of climbing over the Mills barrier with a view to exercising their right of “spontaneous procession” ought to be accepted and understood by the citizens in a democratic society. Therefore, it did not meet the definition of “disorderly conduct” under the Public Order Ordinance.

(3)  An act of climbing over a Mills barrier did not by itself involve any violence. There was no basis for the Magistrate to conceive, by drawing inference by herself, that when climbing over the Mills barrier, the demonstrators would use force to resist the police.

55.  In respect of argument (1), I have mentioned that even the act of the demonstrators (including the Appellants) in Western District in that evening was regarded as “spontaneous demonstration”, the police’s deployment and operation at the scene on that day was proportionate, and it did not infringe their constitutional right. I shall not repeat it here.

56.  In respect of argument (2), first, I would say  that, firstly, for the “offence of unlawful assembly”, section 18(2) of the Public Order Ordinance provides as follows:

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

Secondly, I take the view that we should not discuss the question whether the act of “climbing over a Mills barrier” constitutes “disorderly conduct” without taking into account the actual circumstances at the scene.  In my view, given the situation at the scene, it is critical to consider whether the demonstrators “climbing over the Mills barriers” forcibly against the police’s appeal and instructions would involve any illegal act to an extent beyond the right of lawful demonstration to which they are entitled. As regards this point, I have mentioned earlier that the “offence of unlawful assembly” is preventive in nature. In HKSAR v Leung Kwok Wah (above), Lam J pointed out[108] that in order to prove the charge, there is no need for a breach of the peace to have occurred. It is sufficient that a person present at the scene reasonably fears that it would occur if no action is taken in the meantime to prevent it, since the law is there to put a stop to a deteriorating situation. Lam J further said that even if the cordon thrown by the police was disproportionate or not lawful, it does not mean that the conduct of the protesters in charging it was not disorderly:

“26. Thus, even if the court were to come to the conclusion that the cordon was not lawful, it does not mean that the conducts of the protesters in charging it was not disorderly or provocative. Public order and public peace can still be disturbed, people can still be injured and property can still be damaged even though such protesters perceived (perhaps justifiably) that they were acting in the furtherance of a just cause. The law does not give a licence to such protesters to act with impunity without regard to the law and order of the community at large just because the police may have erred in the judgment as to how the balance should be struck in a difficult situation occasioned by a demonstration.”[109]

57.  In respect of argument (3), the Magistrate made the following findings:

“130. The video highlight 73 recorded that in Incident 1, [A1] called upon the marchers in the public activity area on microphone: “Folks, (we) outnumber the police. We can simply disperse along here and climb out.” “… folks, the police are gathering in front of you, and they will not let us go to the area outside the entrance of the LOCPG. We asked the police many times to open one lane to let us walk over there slowly, but the police refused. But today we outnumber the police by tens of times, so we are very calm. There’s no need to pull these Mills barriers, no need (?), they’re interlocked. We just climb over the Mills barriers slowly and orderly, and get to the first lane.”

131. In the video footage, Inspector Luk Ka-wing warned [A1] many times not to incite people to dash out to the road to commit a breach of the peace and endanger traffic safety. [A1] ignored the warnings and continued to call upon the participants of the procession to climb over the Mills barriers. In response to [A1]’s calling, some participants of the procession, including the 2^nd, 3^rd, 4^th and 5^th Defendants, approached the Mills barriers and began to climb onto the Mills barriers one after another.

132. Clearly, [A1] communicated with the participants of the procession by words or by conduct to incite the participants of the procession present at the scene, of which the number was far more than 3, to do the act or to cause them to do the act of climbing over the Mills barriers.

133. Should the participants of the procession climb over the Mills barriers, it would be regarded as breaking the police cordon. According to the 1^st Defendant, a request for opening one traffic lane to let the participants of the procession walk over to the LOCPG was made to the police many times, but it was refused. Should the participants of the procession climb onto the Mills barriers, the police officers would definitely resist them. To climb over the Mills barriers successfully, they had to use a certain degree of force. Although [A1] called upon the demonstrators to “climb over the Mills barriers slowly and orderly”, in view of the line of Mills barriers set by the police officers, the demonstrators would have to use force against the police officers’ resistance in order to climb over the Mills barriers successfully, and in the course of which they could not have done so “orderly”. Therefore, the act of climbing over the Mills barriers would inevitably involve conduct that is unruly, offensive or in violation of public order, that is, disorderly conduct.” (emphasis added)

58. I entirely agree with the above analysis and findings of the Magistrate.

59. Further, as seen from the subsequent development of the incident, the demonstrators did try to bang themselves on the police’s Mills barriers, while the police did use a certain degree of force to resist the demonstrators. In my view, given the number of the participants, the scale of the demonstration as well as the seriousness of the disruption caused to the citizens’ daily life and the traffic, the facts of the case of Chow Nok Hang are not comparable to those of the present one. I agreed with the submission by the Respondent that the act of A1 and some others of attempting to occupy the traffic lanes of Connaught Road West was not the obstruction that would be caused by a peaceful procession in general as referred to by the Appellant. Even based on the views of Tang PJ in Chow Nok Hang, I consider that A1’s incitement to other demonstrators to climb over the Mills barriers and to go beyond the police cordon forcibly has been sufficiently serious and exceeded the boundary of tolerance of a democratic society, which can be duly regarded as “disorderly conduct”: see HKSAR v Chung Kin Ping and others[110]. In any event, I consider that A1’s behaviour under those circumstances falls within the meaning of “disorderly conduct” as construed by the majority of the Court of Final Appeal.

60. By reason of the above, I reject A1’s Ground of Appeal (1).

Ground of Appeal (2): whether it would commit a breach of the peace

61.  The Magistrate made the relevant finding as follows[111]:

“134. During the procession, the police officers and reporters present at the scene witnessed that the participants of the procession had been in high spirits and had had small-scale confrontations with the police before they reached the public activity area. They definitely would not expect the participants of the procession to calm down quickly after they had entered the public activity area. Therefore, should the participants of the procession climb over the Mills barriers, they would likely cause the police officers and reporters reasonably to fear that they who climbed over the Mills barriers would use force against the resistance inevitably put up by the police, causing threats to the safety of the persons and property of the police officers and reporters, thereby committing a breach of the peace. If the participants’ act of climbing over the Mills barriers would likely cause the police officers and reporters to fear, those who climbed over the Mills barriers would provoke others to do the same and use force against the resistance inevitably put up by the police, thereby committing a breach of the peace. [A1] must be well aware of these circumstances when he made the appeal.” (emphasis added)

62.  I do not agree with Mr Kwok’s submission that there was no sufficient factual basis for the Magistrate to draw the above inferences. As mentioned above, in section 18(1) of the Public Order Ordinance, the word “fear” means an “apprehension”. The word “fear”, as mentioned by the Magistrate when dealing with Charge 1 against A1 in the above paragraph, should be understood this way.

63.  Further, as Lam J pointed out in Leung Kwok Wah that in section 18(1), the one who “fears” is an objective bystander. Therefore, this is an objective test:

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

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

39.  On the second limb of fear, Section 18 refers to a breach of the peace committed by another group of persons.  Those persons are not the persons who originally conducted themselves in the manner prescribed under the second ingredient.  It refers to other persons present at the scene and provoked by the conducts of “the persons so assembled”.  The fear is the reasonable fear of a third person that those provoked would respond by conduct which amounts to a breach of the peace.  On this limb, three different categories of persons are involved: the original group who are “the persons so assembled” (there must be three or more of them); a second group (actually it could only be one person) who is provoked by the first group and may respond by actions which amount to a breach of the peace; a third person or group of persons who harboured the reasonable fear.”[112] (emphasis added)

64.  In respect of whether the police officers and reporters can be regarded as the objective bystanders, D Pang J (as he then was) discussed in HKSAR v Wong Yeung Tat[113] as follows:

“Ground (3)

16. Under Ground (3), the magistrate was criticised to have made an error in his findings in respect of an element of the offence (namely, likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace).

Particulars

17. Having sorted the arguments out, the submissions of Appellant’s side could be listed as follows:

(1) The offence requires that “innocent third parties” be caused have the fear referred to in the offence (hereinafter as “the fear”).

(2) There was no evidence in the case to support point (1) for the reason that other than the protesters, the case only mentioned three categories of people, namely the police officers, the security officers of the Legislative Council and members of the press. However, -

(a) Police officers have been professionally trained and are not “innocent third parties”;

(b) Security officers of Legislative Council have also been trained. Within the precincts of the chamber, they even have the powers of police officers (See section 24 of the Ordinance), and therefore they are not “innocent third parties” either;

(c) Members of the press could be “innocent third parties”, but the video clips produced in court showed that they not only showed no trace of fear in their expression, they even went forward to the front end of the conflict to film the news. So they did not have “the fear”.

Discussion

18. The criticisms of the Appellant’s side cannot stand at all as it was contradictory to the principles laid down in case law.

(1) The concept of “innocent third parties” can be seen in the English case of Kamara v DPP [1974] AC 104. In that case, the offence was also “unlawful assembly”. The incident arose when some students staged a protest action by entering the High Commission of Sierra Leone. They threatened the caretaker and some members of staff with a gun and locked and detained them. But no one outside the Commission was frightened. K appealed to the House of Lords on the same ground (namely no “innocent third parties” were in fear) but his appeal was dismissed.

(2) The case of Secretary for Justice v Leung Kwok Wah… also involved the offence of “unlawful assembly”. Mr. Justice Johnson Lam pointed out in (paragraphs 93 to 94 of the judgment) that­ —

(a) It is clearly shown in the judgment of Kamarathat the staff members inside the High Commission of Sierra Leone can be regarded as “innocent third parties”.

(b) By the same token, the security officers of the Liaison Office of the Central People’s Government in the case of Leung Kwok Wah are surely “innocent third parties”.

(3) Mr. Justice Lam continued to say in (paragraphs 95 to 97 of the judgment) that -

(a) He sees no reason why members of the press and police officers should be excluded from “innocent third parties”.

(b) Members of the press and police officers could possibly be regarded as “trained personnel”, and “trained personnel” would not be provoked to commit a breach of the peace, but they could be caused (reasonably to fear that the persons so assembled will commit a breach of the peace).

(4) It thus follows that the argument of the Appellant’s side that police officers and Legislative Council security officers were “not innocent third parties” was erroneous. According to the case law, those two categories of people could also have “the fear” necessary for the offence.

(5) The Appellant’s side was also wrong to single out the members of the press and submitted that they in fact did not have “the fear”. The reasons are that:

(a) The members of the press rushed to the front end of the conflict to conduct interviews for the sake of discharging their duties. It could not show that they were not in “fear”.

(b) The “fear” required by the offence does not refer to the members of the press worrying about their own safety, but the fear that the protesters might commit a breach of the peace. The two are different in concept.”

65.  In HKSAR v Leung Hui Yeung and others[114], Albert Wong J, in considering the principle described by the phrase “any person reasonably to fear”, quoted Leung Kwok Wah and elaborated:

“115. The so-called “any person” referred to a person at the scene, who might be described as an “innocent third party”, meaning someone who does not take part in the unlawful activity, including reporters, and also including those trained to face the appellants’ conduct, such as security guards, police officers and so on. It was not necessary for the prosecution to call those third parties to prove that they had in fact been in fear there would be a breach of the peace. [115] As Macdougall VP of the Court of Appeal had said, the evidence has clearly established that the situation must cause third parties who were not participants in the assembly to be likely to have the fear in question and also those in the assembly but not in favour of taking such action to be likely to have the fear in question.”

66.  Recently, in HKSAR v Leung Chung Hang Sixtus, Wilson Chan J cited Leung Kwok Wah and said:

“39.  On the contrary, the focus of element (3)(b) of unlawful assembly (the objective limb) is not whether the defendant has the intention to cause the stipulated fear. Rather, it is the conduct in question whether, objectively, it is likely to cause any person to reasonably have the stipulated fear. If, objectively, the conduct in question is likely to cause such fear, the defendant who participated in the assembly in question would commit the offence, regardless of whether the defendant has the intention to cause the stipulated fear. It is apparent that element (3)(b) is directed at the objective risks of the public order and the peace caused by the conduct in question. It meets the requirement, as said by Lam J, that the offence of unlawful assembly is “preventive” in nature.”

67.  In respect of the evidence in the present case, the Magistrate mentioned in paragraph 134 of her Statement of Findings about small-scale confrontations shortly before the offence took place. The first occasion happened outside Star Seafood Restaurant at the junction of Des Voeux Road West and Western Street. At that time, the demonstrators pushed towards the police cordon line, and a small-scale confrontation ensued between the two parties. All the Defendants in this case were amongst the crowd[116]. On the second occasion, at the junction of Western Street and Connaught Road West, there were participants of the procession yelling “clear the way” and charging the police’s cordon of Mills barriers[117].

68.  I agree with the Respondent’s submission below:

(1)  The focus of the Magistrate was that if the demonstrators climbed onto the Mills barrier, the police would definitely resist them. To successfully climb over the Mills barrier, they would have to use a certain degree of force to overcome the resistance, during which it could not possibly be orderly. Therefore, the Magistrate rightly found that the act of climbing over the Mills barrier would inevitably involve conduct that is unruly, offensive or in violation of public order, that is, disorderly conduct.

(2)  The Magistrate did not say that the demonstrators being in high spirits in itself would result in violence, but that they had had small-scale confrontations with the police, and should they climb over the Mills barrier, they would definitely be resisted by the police. Therefore, to successfully climb over the Mills barrier, they would have to use a certain degree of force to overcome the resistance.

69.  By reason of the above, I reject A1’s Ground of Appeal (2).

Ground of appeal (3): Whether he believed others would have the mens rea of unlawful assembly

70.  Mr. Kwok reiterated that the demonstrators were exercising the right of “spontaneous procession” at the time. He also stressed the following points:

(1)   There was a reasonable chance for A1 to believe that climbing over the Mills barriers to take part in a “spontaneous procession” did not constitute “disorderly conduct”. Further, those who climbed over the Mills barriers would not see it as “disorderly conduct” either.

(2)   There is no evidential basis to show that the Appellant did believe those who climbed over the Mills barriers would clash with the police by force or they would climb over the Mills barriers in a disorderly manner, especially in light of the appeal made by the Appellant at that time, “... we are very calm. There’s no need to pull these Mills barriers… we just climb over the Mills barriers slowly and orderly…”.118

(3)   There is no evidential basis to show that the Appellant believed the police officers and reporters at the scene would reasonably fear those who climbed over the Mills barriers would resort to force when clashing with the police, thereby committing a breach of the peace.

(4)   The Magistrate overlooked the objects of the LOCPG: “Doors always open; people always around; things always getting done.”119 Under such circumstances, it was unnecessary for the police, acting like guards of private properties, to obstruct with aggressive measures those who climbed over the Mills barriers and headed towards the LOCPG, thereby causing clashes.

(5)   At the material time, the area outside the LOCPG was not a traffic blackspot. If the participants of the procession climbed over the Mills barriers to go to the LOCPG to protest, it was unnecessary for the police to be excessively worried about the possibility of a traffic accident taking place.

71.  Were the demonstrators (including all the Appellants and Defendants) holding a “spontaneous procession” at that time; and even if so, is this relevant to the charges they are facing? I have already elaborated on these issues and made my findings, which I shall not repeat here.

72.  Regarding the other matters raised by Mr. Kwok, I agree with what Mr. Cheng said in his submission — A1 took part in the procession along the way and clearly saw the cordon line set up by the police along the way, including the Mills barriers which separated the “designated public activity area” and the traffic lanes of Connaught Road West . At that time, many police officers were guarding at the other side of the Mills barriers behind A1. There was moving traffic on the carriageway of Connaught Road West which had not been cordoned. Even though A1 called on the participants of the procession not  to “pull” or “touch” the Mills barriers, he must have known and intended to incite the participants of the procession to resort to disorderly conduct such as charging at the Mills barriers and/or the police cordon, so that they could occupy the traffic lanes of Connaught Road West.

73.  In my view:

(1)   Under the circumstances at that time, it was impossible for A1 not to know that if the demonstrators listened to his appeal and forcibly climbed over the Mills barriers to go to the traffic lanes, they would have to use a certain degree of force.

(2)   A1 repeatedly told the demonstrators that they “outnumbered the police”. Apparently, the purpose was to counter and thwart police’s resistance by relying on the large crowd.

(3)   In light of the circumstances at that time, the only reasonable inference is, as the Magistrate has found, that A1 must have been aware that if the demonstrators followed what he said, what emerged would be “disorderly conduct”, thereby committing a breach of the peace.

(4)   As to what A1 said at that time, “We are very calm. There’s no need to pull these Mills barriers… we just… slowly and orderly”, this is nothing more than a pretext and no weight should be given to it.

(5)   It is true that A1 bears no burden of proof. No adverse inference could be drawn against him for his electing not to give evidence. Nevertheless, I am of the view that under the circumstances where A1 did not testify in court, it fortified beyond doubt the adverse inference drawn against him from the prosecution case: Li Defan v HKSAR120.

74.  It is totally out of context when Mr. Kwok quoted what Mr. Tan Tieniu, Deputy Director of the LOCPG, said in an interview. Mr. Tan’s target audience at that time was from the education sector who visited the LOCPG on its Open Day. At that time, he said, “I hope you could visit the LOCPG often. There is nothing mystical about it. Just like what the Director [of the LOCPG] Wang Zhimin said, for the LOCPG ‘Doors always open; people always around; things always getting done’, that is friends visit often. I think more exchanges among us could enhance mutual understanding and trust and dispel misunderstanding.”121 Apparently, Mr. Tan did not mean the LOCPG would open up to the demonstrators.

75.  The focus is never on whether the area along Connaught Road West is a “traffic blackspot”. The focus is that it is a congested place with hectic traffic and cannot accommodate a large number of demonstrators. As a result, the police had to adopt crowd and traffic control measures to ensure safety. I have already set them out in my reasoning and made my findings in this regard, which I shall not repeat here.

Conclusion: A1’s appeal

76.  I have examined all the relevant evidence and arguments by way of rehearing and am of the view that the Magistrate’s findings are correct. Concerning A1’s various grounds of appeal, whether considered individually or cumulatively, they are bound to fail. The evidence against A1 is sufficient and the conviction, in my view, is beyond doubt.

A2’s appeal

Ground of appeal (1): Whether it was “out of genuine belief”

77.  The only ground of appeal put forward by A2’s counsel, Mr. Law Ka-sing is that it is unsafe for the Magistrate to rule that A2 did not act out of genuine and mistaken belief.

78.  Mr. Law said in his submission that what A2’s state of mind or intention was at that time when he stretched out his hands remained ambiguous and equivocal. Perhaps A2 was just trying to help A1 to his feet thinking that A1 was losing his balance. The whole course happened in a split second and what A2 did was not a continuous act. It is unsafe to determine his intention simply based on that.

79.  The Magistrate understood that A2 put forward “a genuine (even though mistaken) belief” as his defence122. In respect of the “obstruction” charge123, she reminded herself of the legal test laid down by the Court of Final Appeal in HKSAR v Tam Lap Fai124. The word “obstruction” means making it more difficult for the police to carry out their duties. It does not include conduct which may cause mere inconvenience to the officer or require him to expend only trifling additional effort. One must look at the circumstances which include what the defendant did and how he did it, what the officer did, and the effect of the defendant’s act on what the officer did125.

80.  In respect of Charge (6) A2 is facing arising from Incident 2, the Magistrate made the following findings of facts126︰

“Were [A2]’s acts obstructive?

…

300. When the police officers tried to stop [A1] from calling upon the participants of the procession to climb over the Mills barriers, [A2] used both hands to pull [A1]’s body and vied with the police officers for [A1] preventing him from being taken away. Even though it only lasted for roughly 3 seconds, it ended just because Station Sergeant Sin Tai Kam pulled [A2] down. [A2]’s acts made the police’s job at that time difficult, preventing them from taking [A1] away from the scene swiftly as this could stop fuelling the emotions of the crowd upon seeing the Defendant being tugged. As a result, Station Sergeant Sin had to shift the time and energy used to remove [A1] to [A2]. This went beyond the conduct which might cause mere inconvenience to the officer or require him to expend only trifling additional effort. I find that the conduct of [A2] at this stage constitutes obstruction.

…

Was [A2] intentional in obstructing the police in due execution of their duties?

302. Video highlight 73 shows that [A2] sat on top of the Mills barriers with his head turned towards the direction of [A1]. He thereupon stretched out each of his hands supporting the left and the right side of [A1]’s body respectively.127 At this juncture, with two exceedingly bright spotlights shone at that location, [A2] could see the front, i.e. the face of Chief Inspector Gar Kam-lam Alfred and the way he threw his arms around the 1^st Defendant. Further, for prosecution exhibit P43D128, the footage was captured in the direction right behind the head of the 2^nd Defendant towards [A1] and Chief Inspector Gar Kam-lam Alfred. Apparently, [A2] could see Chief Inspector Gar Kam-lam Alfred, who was next to [A1] with his arms across his chest, pulling [A1] down. At that point, [A1] only tilted to the right and was not falling backwards or almost lying on the Mills barriers. [A2] could not have mistaken that the 1^st Defendant accidentally lost his balance.

303. After [A2] realized that [A1] was pulled down by and held tightly in the arms of Chief Inspector Gar Kam-lam Alfred, with no danger of falling, [A2] still grabbed [A1]’s body and wrestled with the police in opposite direction129. Although [A2] only wrestled with the police and grabbed [A1]’s body for a short time before being pulled down by Station Sergeant Sin Tai-kam, it is obvious that [A2]’s acts were deliberate at that time in order to prevent the police from taking [A1] away. Therefore, I take the view that [A2] had wilfully obstructed the police officer in the due execution of his duty at that stage.” (Emphasis added)

81. I have repeatedly viewed the relevant video clips in court, replaying them many times both at normal speed and slow speed. I am of the view that the description given by the Magistrate was detailed and accurate. Notwithstanding the “vying process”, described in paragraph 300 above, only lasted for 3 seconds, the Magistrate is entitled to take things happened immediately after that into account, that is, including what was described in paragraphs 302 and 303130, as the basis to infer A2’s state of mind at the material time: R v Chan Wing-kwan & Anor131.

82. As Mr. Cheng pointed out in his written submission, Chief Inspector Gar repeatedly warned A2 to withdraw his hands, as shown in video highlight 73, A2 nevertheless still actively grabbed hold of A1’s left leg and wrestled with the police132. According to the video footage, I am of the view that the Magistrate is fully entitled to infer that by behaving in such manner as described in paragraph 300, A2 was wilfully obstructing the police officers from taking A1 away from the scene. The possibility of “genuine (mistaken) belief”, as put forward by Mr. Law, did not exist. Furthermore, under the circumstances where A2 did not testify in court, it fortified beyond doubt the adverse inference drawn against him.

Conclusion: A2’s appeal

83. I have examined all the relevant evidence and arguments by way of rehearing and am of the view that the evidence against A2 is sufficient. The conviction is right and correct.

A3’s appeal

Grounds of appeal

84. In respect of Charge (10) that A3 is facing, that is, taking part in an “unlawful assembly” in Incident 3, Mr. Tang representing A3 put forward three grounds of appeal, which can be summarized as follows:

(1) In the absence of sufficient factual basis, the Magistrate erred in inferring that A3 pushed the Mills barriers forward on his own initiative;

(2) The Magistrate erred in finding that A3 pushing the Mills barriers is “a disorderly conduct”, without giving sufficient consideration to the constitutional right and freedom of him and those at the scene to hold a “spontaneous procession”; and

(3) The Magistrate erred in finding that those at the scene would reasonably fear that (i) the persons so assembled would commit a breach of the peace; or (ii) by the conduct of pushing the Mills barriers provoke others to commit a breach of the peace.

Considerations

Ground of appeal (1): Did he push the Mills barriers forward on his own initiative

85. Concerning the above ground of appeal, the Magistrate made the relevant findings of facts as follows133:

“318. As to whether [A3] behaved in a disorderly manner, the contention between the prosecution and the defence is whether [A3] did push the Mills barriers. … I am of the view that the section of the Mills barriers being pushed forward as shown in the video highlight is very useful in determining whether [A3] did push the Mills barriers or not.

319. After [A1] had been brought away by the police, the 7^th Defendant made a speech to the participants of the procession in the public activity area with his back to the carriageway, and [A3] was all along at the front towards the right of where the 7^th Defendant was facing. Towards the latter part, the 7^th Defendant turned to face Connaught Road West from his original position of his back to the carriageway while he continued to shout “Storm the LOCPG”. [A3] moved to the other side of the 7^th Defendant facing the carriageway. Subsequently, some participants of the procession pushed the Mills barriers towards the carriageway.

320. When the crowd just started to move towards the Mills barriers, [A3] suddenly moved forward quickly and dashed rapidly towards the gap which appeared in the crowd in front. Nobody behind him pushed him forward. He then moved to the right side of the 3^rd Defendant who was at the front row of the Mills barriers. He stayed close to the Mills barriers.

321. It can be seen from the above that after the 7^th Defendant had shouted, “Storm the LOCPG” several times and when the crowd surged forward, [A3] moved forward quickly on his own initiative from the back until he reached the front row of the Mills barriers. Apparently, his intention was to join in to push the Mills barriers and charge at the police cordon. Subsequently when the Mills barriers were being pushed, [A3] made several swift forward movements, the rhythm of which was obviously different from that of the people around him. This is concrete evidence to prove that [A3] pushed the Mills barriers forward on his own initiative but not being pushed by others towards the Mills barriers.

322.  By pushing the Mills barriers towards the carriageway, [A3]’s behaviour was obviously unruly, offensive and in violation of public order. Accordingly, the Court finds [A3] had behaved in a disorderly manner.”

86.  I refuse to accept this ground of appeal for the following reasons:

(1)  The above findings made by the Magistrate are based on her observations of the relevant video clips, not involving any inference.

(2)  I have repeatedly viewed the relevant video clips in court, replaying them many times both at normal speed and slow speed. I am of the view that the description given by the Magistrate was detailed and accurate.

(3)  I have examined the relevant video clip134 by way of rehearing. From what I have seen and as Mr. Cheng pointed out in his written submission, A3 made a sudden dash forward from the back row without being pushed by anyone. He also dashed towards the gap in the crowd and moved to the front row. He continued to move forward, the rhythm of which was obviously different from that of the people around him. Subsequently, A3 charged forth, then back, then forth again at the Mills barriers.  He then used his right shoulder, positioned between the space of the vertical metal bars of the Mills barriers, to push it forward with force. He left the Mills barriers only until the police used pepper spray on the demonstrators.

(4)  Even though the time A3 actually participated in pushing the Mills barriers was limited, he was apparently, with the intention of charging at the police cordon, acting jointly with other demonstrators. As a result, his behaviour would definitely be “disorderly conduct”.

Ground of appeal (2): “Spontaneous procession”

87.  A2 and A1 share the same ground of appeal and argument here. As mentioned before, as to whether the demonstrators (including A3) were holding a “spontaneous procession” at that time; or even if so, whether this is relevant to the allegation he is facing, I have already set them out in my reasoning and made my findings. I shall not repeat myself here.

88.  Further, from what I have observed and as pointed out by the Magistrate, the act of A3 pushing the Mills barriers to the direction of the carriageway was obviously unruly, offensive or in violation of public order. This exceeds the level of tolerance which a democratic society would allow.

Ground of appeal (3): whether those at the scene would “reasonably fear”

89.  In respect of this ground of appeal, the Magistrate made the relevant findings of facts as follows135:

“323. Whether [A3] intended or would likely cause any person reasonably to fear that he and the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace, there is no evidence in this case, in my view, to prove [A3]’s subjective intention.

324. In Incident 3, those at the scene included the police, other participants of the procession at the public activity area and the nearby road users.

325. The police officers at the scene were at the forefront of the conflict and had to use their bodies and their strength to resist those charging at them. They would certainly reasonably fear that the persons assembled, including [A3], would by their conduct of charging at the Mills barriers and unlawful assembly, cause injuries to them. I find that the conduct of [A3] and those assembled would likely cause the police officers to reasonably fear that the people so assembled would commit a breach of the peace (the first level of fear).

326. Since some participants of the procession at the public activity area did not take part in the charging, the police officers at the scene would certainly reasonably fear the persons assembled, including A3, would by their conduct of charging at the Mills barriers, provoke other persons present to join in and cause injuries to the police officers because of the unlawful assembly, thereby committing a breach of the peace.

327. For those other participants of the procession in the back rows of the public activity area who chose not to take part in charging at the Mills barriers, although they were not close to those in front charging at the Mills barriers, they witnessed how the Mills barriers were pushed substantially to the carriageway, the scale of the charging, the large number of people involved, the use of pepper spray and the overall continuous chaotic situation, they would certainly reasonably fear that those charging at the Mills barriers would affect the safety of their own and their personal property. They would also be concerned that the situation might deteriorate to such an extent that those assembled would, by their conduct of charging at the Mills barriers, provoke others to join and commit a breach of the peace, thereby affecting the safety of their own and their personal property.

328. Road users were on the second and third left lanes and in Incident 3 the Mills barriers were suddenly pushed from the pavement to the first left lane and part of the second left lane. Many police officers retreated to the second left lane. The situation was very chaotic and both parties reached a stalemate. There were reporters also on the third left lane. The vehicles on the carriageway had to travel slowly and some were even stuck on the third left lane at a later stage. Road users who had the opportunity to witness the incident in close proximity, would certainly reasonably fear that those who were charging at the Mills barriers would affect the safety of their own and their vehicles, and would be concerned that the situation might deteriorate to such an extent that those assembled would, by their conduct of charging at the Mills barriers, provoke others to join in and commit a breach of the peace, thereby affecting the safety of their own and their vehicles.

329.  For the above reasons, I find that in Incident 3 [A3] and those assembled would likely cause any person reasonably to fear that he and those assembled would commit a breach of the peace, or would by their disorderly conduct provoke other persons to commit a breach of the peace.”

90.  Mr. Tang pointed out in his submission that the Magistrate overlooked the principle in the case of Leung Kwok Wah — that is, “fear” is not targeted at apprehension of the persons present as to their own safety.

91.  I would not accept the above submission. I am of the view that Mr. Tang misinterpreted Lam J’s judgment in Leung Kwok Wah. As mentioned above, for the objective limb of the third ingredient in the “offence of unlawful assembly”, Lam J focused on the reasonable apprehension of an objective bystander that one way or another a breach of the peace will result136. Lam J was not saying that the fear of those present for their own safety could not constitute “a breach of the peace” because of the violent acts of others. As mentioned before, according to HKSAR v Chow Nok Hang (above), acts of “breach of the peace” include: harm that is actually done or is likely to be done to a person; or harm that is actually done or is likely to be done in his presence to his property; harm that is actually done or is likely to be done to a person or his property when a person is in fear of himself or his property so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. Hence, nothing in the Magistrate’s findings of relevant facts is inconsistent with the above case.

92.  Mr. Tang also said in his submission that “there is insufficient evidential basis or basic fact in this case to draw the above sole reasonable inference.” Concerning the latter, Mr. Tang has not specified what is insufficient regarding the basis on which the Magistrate drew her inference. I am of the view that the Magistrate drew the inference on a sufficient objective factual basis (including the sketch of the scene and video clips). It is both legitimate and reasonable.

Conclusion: A3’s appeal

93.  I have examined all the relevant evidence and arguments by way of rehearing and am of the view that the evidence against A3 is sufficient. The conviction is right and correct.

Conclusion: all Appellants

94.  In view of the above, I dismiss the appeal against conviction of the Appellants A1 to A3.