HKSAR v. WONG YEUNG TAT

[English Translation – 英譯本]
HCMA 141/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 141 OF 2015

(ON APPEAL FROM ESCC NO. 2243 OF 2014)

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REASONS FOR JUDGMENT

1. The Appellant was convicted after trial of an offence of “Taking part in an unlawful assembly”, contrary to section 18(1) and (3)[1] of the Public Order Ordinance, Cap. 245, Laws of Hong Kong, and was fined $5,000. Feeling aggrieved, he now lodges an appeal against his conviction.

The Charge

2. It is alleged in the charge that the Appellant:

“… together with other persons unknown, took part in an unlawful assembly, namely, 3 or more persons assembled together and conducted themselves in a disorderly, intimidating, insulting or provocative manner intended or likely 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.”

3. The date of the charge was 6 June 2014 and the venue was the public entrance (1) on ground floor lobby of the Legislative Council Complex.

Prosecution case

4. The case was tried by Magistrate Mr. SO Wai Tak who summarised the prosecution case in his Statement of Findings[2] as follows:

“3. The prosecution summonsed 14 prosecution witnesses to testify in court. But as the alleged conducts at the material time could be seen clearly in the undisputed video recording, there were not that many factual disputes in the case.

4. Simply put, at around 3 p.m. on 6 June 2014, the Legislative Council Financial Committee was holding a meeting in the chamber on the 2^nd floor of the LegCo Complex to deliberate the funding application related to “Advanced Works for North East New Territories New Development Areas”.

5. According to section 2(1) of the Legislative Council (Powers and Privileges) Ordinance and section 1 of the Administrative Instructions for Regulating Admittance and Conduct of Persons, during the whole of any day the Legislative Council or a committee is sitting,the whole LegCo Complex including the adjoining garden and open space are deemed to be the precincts of the chamber.

6. In view of the nature of the application under deliberation, the Legislative Council Secretariat had designated part of the open space outside public entrance (1) of the LegCo Complex (commonly known as “the area under the drum”) as demonstration area where protestors were allowed to assemble. At around 3p.m. on the same day, about several tens of protesters gathered at the demonstration area.

7. There are two electric doors at the public entrance (1) of the LegCo Complex, which are respectively the eastern entrance and western entrance. At about 5:30 p.m. on the same day, some protesters successfully rushed into the LegCo Complex via the eastern entrance, and they were shouting slogans, playing drums and assembled there. Later, the Security Office of the Legislative Council closed the eastern entrance. However, the western entrance could not be closed because protesters were sitting or standing at both sides of the western entrance.

8. Due to manpower shortage at the Security Office of the Legislative Council, the security officers only instructed the protesters to leave the lobby or not to enter. They did not enforce clearance of the premises. The protesters did not pay heed or comply with their persuasion.

9. At around 9 p.m. on the same evening, after consulting the Secretary General, the Chief Security Officer requested the police to arrive at the site to control the entrances. Subsequently, Inspector KWOK and Woman Inspector CHAI arrived with several police constables. Accompanied by the Chief Security Officer, they went to the western entrance of the public entrance (1). When the police constables were at the western entrance, a security officer in an attempt to shut the western entrance suddenly pushed away a man of fat build who was blocking the entrance. At that juncture, the protesters outside the entrance immediately rushed towards the LegCo Complex and bumped against the police officers and security officers. The situation was chaotic and consequently the western entrance could not be closed. The police immediately called for reinforcement and the police officers formed a human chain at the front of the western entrance to stop protesters from entering the lobby. A while later, a security officer passed out and lied down at the scene[3]. When the protesters at the scene knew about this, they formed a passageway by means of a human chain at the western entrance so that the injured person could be brought away from the scene[4].

10. Then at around 9:45 p.m. on the same evening, the Chief Security Officer of the Legislative Council declared to those present at the scene that the meeting had finished and advised the protesters to leave. When the protesters knew that no definite conclusion had been reached on the subject matter, they began to leave one by one. It was not until midnight on the following day that all protesters had left the LegCo Complex.

11. Before the bumping and pushing happened, the defendant and other 10 odd persons walked out through the western entrance. They were staying and talking at a location outside the western entrance. At the juncture the western entrance was intentionally closed, one woman yelled “Shut the door” and immediately after that, the defendant shouted loudly “Go back in”. Then he and people around him, together with other protesters, swarmed into it.

12. In this incident, 5 security officers at the scene were injured during the bumping and pushing[5].”

Defence version

5. Now is the defence version:

“23. The defendant elected to give evidence but did not call any defence witness.

24.   Simply put, the defendant was in his office in Kowloon Bay from 3 p.m. to 6 p.m. on the material day. He only arrived at the LegCo Complex at 7:40 p.m. to conduct live broadcast on the internet for Passion Times. Upon arrival, he and other protesters could all along enter and exit the lobby of the LegCo Complex freely. When it was around 9 p.m., he left the lobby because he did not approve of the taking of a group photo as suggested by the protesters inside the lobby. Shortly after he was outside the lobby, he saw police officers arriving and trying to enter the lobby. He then went up to stop them and tried to understand. His reason was that according to his understanding, police officers were not allowed to enter the LegCo Complex. He testified that the situation was chaotic and the police officers kept pushing him towards the lobby. He had no intention to enter the lobby at all.”

Findings by the trial magistrate

6. The following is the magistrate’s analysis of the evidence of the case（only the most relevant parts are extracted）:

“27. Having considered all the evidence in the case, I find that PW1 to PW14 are honest and reliable witnesses. But regarding the testimonies of Mr. LIU Kam, Security Officer, and Chief Security Officer of Legislative Council[6] that at the material moments, the protesters first rushed to the western entrance and subsequently the security officers tried to close the door, their versions were not consistent with the video tapes. I am of the view that it might be due to their positions and the matter happened in an instant, therefore the chronology of the incident should be according to the video tape.

28. As a matter of fact, according to the security officers at the scene, those security officers guarding the western entrance had a tacit agreement long before then. When the timing was right, they would push away the people blocking the western entrance and then close the door. However, from the testimonies of Inspector Kwok and Woman Inspector Chai, it seems that they have never been notified of such an arrangement…

29. The defence suggested during cross-examination that certain parts of the video tapes did not capture the security officers at the scene trying to persuade the protesters. I am of the view that as early as around 5:30 p.m. on that day, the protesters had successfully entered the lobby by way of forcing their way through the eastern entrance. It would be unrealistic to require the security officers to incessantly and repeatedly persuade the protesters like a tape recorder. I am sure that the security officers at the scene did try to persuade the protesters and it was just that they did not heed to them.

30. Regarding the testimony of the defendant, he testified that on that day he was watching the live broadcast of the program on the internet. He also agreed that his stance was against the proposed application. I am of the view that his role at the scene on that day could be a broadcaster of the program and a protester at the same time. There was no contradiction or discrepancy between the two roles which could co-exist. Furthermore, from Exhibit D2[7], it can be seen that before the incident happened, he said in the lobby, “No matter it is from the perspective of a media or protester, (I) will follow others to go in, if there is the chance to force (my) way in, (I) will do so”. And the location of forcing his way in refers to the escalator that would lead to the chamber on the 2^nd floor. Moreover, from Exhibit P3[8], it can be seen that after the conflict happened, he gave a hand signal to some protesters to sit at where the west entrance was. His purpose was obviously that he wanted to stop the door from closing. Therefore, I am sure that he was certainly a member of the protesters on that day.”

31. He also claimed that the reason of rushing toward the western entrance was to understand why the police entered the Complex. I think his version is totally unreasonable. It is an undisputed fact that he first saw some police officers arriving at the western entrance and he said “now the police are entering the premises”. Then when there was a woman voice saying “Shut the door”, he immediately shouted “Go back in”. This response was utterly inconsistent with his alleged reason. Moreover, how could he know if any incident happened inside the Complex that required the attendance of the police to help? From the video recording, it can be seen that he pushed the main door open with his hands to prevent it from being closed. If he wholeheartedly wanted to prevent the police from entering, why did he not simply assist the immediate closing of the door. Wouldn’t his purpose be better achieved that way? I am of the view that he was trying to exonerate himself when he gave the explanation as to why he rushed toward the western entrance. His reason was not convincing at all.

32. He also claimed that at the time of the clash, the police officers present at the scene kept pushing him into the Complex. I am sure that was not the truth. As a matter of fact, when the clash first happened, the number of protesters was obviously and significantly more than the number of police officers. Those forcing their way toward the western entrance were protesters, not police officers. I am of the view that he was trying to put the responsibility on the police officers, so as to play down the actions of the protesters and himself.

33. Having considered the situation in its entirety, I find that the defendant is not an honest or reliable witness. I refuse to accept his testimony regarding the reason he forced his way toward the western entrance.

….

35. Regarding the findings of facts, I am sure that at around 9:17 p.m. that evening, when the security officers of the Legislative Council tried to close the door at the western entrance, the defendant and other protesters present at the scene immediately dashed forward and began to bump against the bodies of the security officers and police officers.”

7. The following is the applicable law:

“36. In respect of the offence of Unlawful Assembly, the prosecution must prove that: (i) The defendant, together with three or more persons assembled together; (ii) He conducted himself in a disorderly manner; (iii) He intended or likely 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.

37. The defence said in submissions that before the incident happened, a large crowd of protesters had entered the lobby, and they were shouting slogans, protesting and beating the drums. So when the security officers forcibly closed the door, their actions unreasonably and disproportionately limited the protesters’ freedom to protest, assemble and express their views.

38. I do not agree. As a matter of fact, the LegCo Secretariat had marked the demonstration area with metal barricades as early as 3 p.m. on that day. The protesters were only allowed to assemble there. At around 5:30 p.m. on the same day, the protesters charged the eastern entrance which led some of them to successfully gain entry into the lobby. Therefore, the lobby was all along not a place for the protesters to assemble. It was only because the Legislative Council Security Office had limited manpower so they did not take action to clear the premises. That could not possibly be deemed as a waiver on the part of the Legislative Council Security Office to give up their right over access control. The protesters could not rationalize their subsequent charging by saying that earlier they “had entered the lobby” by “means of charging their way into it”. Furthermore, it can be seen from the video recording that the protesters had all along obstructed the closing of the western door. Therefore, the protesters at the scene must have realized that the Legislative Council security officers all the time had intended to close the door and refuse the protesters from entering and leaving freely. It was just that they did not heed to the verbal persuasion of the security officers. Moreover, the escalator inside the lobby would lead to the chamber on the 2^nd floor. If protesters were allowed to assemble as they wished, it would definitely pose a threat on the chamber being charged by them. I am of the view that the decision to close the door was neither an unreasonable nor disproportionate restraint.

39. To say the least, even if it was unreasonable and disproportionate for the security officers to close the door, it did not mean that the protesters would have the right to force their way into it, or that they would have the right to “prevent the door from closing” by their disorderly behaviours such as charging.

40. I find that the defendant, together with more than three persons, charged the western entrance together. They common gaol must be that: to charge the western entrance and to prevent the door from closing, and to cause bumping and hitting of the bodies. That would definitely be disorderly behaviours which led to a highly chaotic situation.

41. The defence submitted that the intention of the defendant was to prevent the door from closing and therefore he had no intention to cause other people to fear that there would be a breach of the peace. However, I am of the view that the conducts of the defendant and those people who charged the western entrance triggered the bumping and pushing between the protesters and the police and the security officers, and that would likely cause any person reasonably to fear that there would be a breach of the peace. Of course the people who felt frightened would not include the protesters who conducted themselves in a disorderly manner, but it was undisputed that security officers and members of the press were present at the scene. Pursuant to Secretary for Justice v. Leung Kwok Wah [2012] 5 HKLRD 556, the security officers and members of the press who were at the scene could be regarded as people other than those who conducted themselves in a disorderly manner, and they were considered as innocent parties[9] who feared that there would be a breach of the peace。

42. Based on the above analysis and in the circumstances of the case, I am satisfied that the prosecution has proved all the elements of the charge beyond any reasonable doubt and the defendant is convicted of the charge.”

The Appeal

8. At the original trial, the defence counsel raised three grounds of appeal.

Ground (1)

9. Ground (1) is that the trial magistrate has erroneously dismissed the defence’s application at the trial to stay the hearing permanently[10].

Particulars

10. Having filtered the submissions made in court, the Appellant’s application to stay the hearing permanently can be succinctly summarised as the following points:

(1) The conduct of the protesters can be dealt with in accordance with the Legislative Council (Powers and Privileges) Ordinance (hereinafter as “the Ordinance”) and the Administrative Instructions for Regulating Admittance and Conduct of Persons (hereinafter as “the Administrative Instructions”), and section 20 of the Ordinance and section 11 of the Administrative Instructions are particularly applicable. In short, the “entry”, “attempted entry” and the “conduct” of any person within the precincts of the chamber of the Legislative Council must be in compliance with the above Ordinance and Administrative Instructions, otherwise he may be prosecuted.

(2) According to the evidence of PW (14) (Assistant Secretary General of the Legislative Council) and others, all the security officers concerned were trying to enforce the provisions of the Ordinance and Administrative Instructions and subsequent to the incident, the Legislative Council did not request the Department of Justice to prosecute the protesters.

(3) In view of the above circumstances, when the Department of Justice prosecuted the Appellant pursuant to the Public Order Ordinance, the administration was undeniably interfering with the legislation. Take for example, if the Legislative Council had for whatever reason given tacit acceptance to the conduct of the protesters, their decision would be hindered by the interference of the Department of Justice. That would be in contradiction to the separation of powers provided in the Basic Law and consequently the prosecution of the present case would be an abuse of process.

(4) Admittedly, section 63 of the Basic Law provides that the Department of Justice shall control criminal prosecutions, free from any interference. However, the provision does not grant the Department of Justice the power to invoke the Public Order Ordinance, without any request by the Legislative Council, to directly intervene into matters that the Legislative Council can deal with pursuant to the exclusive Ordinance and Administrative Instructions.

Discussion

11. The above arguments are basically the same as those raised by the defence in the original trial. I think the magistrate was right to refuse them. The following are the major reasons:

(1) The offence of “Unlawful assembly” is more serious than a breach of the Ordinance and Administrative Instructions. For example, the necessary element of the offence is “a breach of the peace” which definitely involves violence, and it must involve at least the misconduct of 3 persons added together, but it is not so for the latter. It is also for the same reason that the Appellant’s argument was not comprehensive when he argued that the protesters’ conduct could be dealt with by the Ordinance and Administrative Instructions.

(2) When I made enquiry, the Appellant’s side confirmed that the Legislative Council did not request the Department of Justice to prosecute the protesters, and they did not object to any action taken by the Department of Justice either. Therefore, the argument that the protesters’ conduct might have gained the tacit acceptance of the Legislative Council was merely an assumption on the Appellant’s side, and it was not substantiated by any solid evidence. There was no evidence that the Legislative Council felt offended.

(3) The Appellant’s side kept emphasising and criticising that the Department of Justice had relied on the Public Order Ordinance. However, what if the Department of Department had prosecuted the protesters pursuant to the Ordinance and Administrative Instructions of the Legislative Council? What about that? Would the Department of Justice still need to seek the approval of the Legislative Council? Regarding this question, the Appellant’s side did not provide any answer. Upon my repeated questioning, the counsel only said that “there is no further submission”.

(4) Actually, according to the logic of the Appellant’s side, the answer to the above question would definitely be “yes”. But that answer would also imply that a whole host of illegal activities arising from disorderly acts (including those that interrupted its operation) could only be prosecuted with the permission of the Legislative Council. That would be in contravention with section 63 of the Basic Law. On the contrary, section 26 of the relevant Ordinance of the Legislative Council provides that “No prosecution for an offence under this Ordinance shall be instituted except with the consent of the Secretary for Justice.” This provision shows that the power to decide whether to prosecute or not lies with the Secretary for Justice and not the Legislative Council.

12. To sum up, the arguments of the Appellant’s side were based on vague concepts and were not substantiated by facts and by law. Therefore, their arguments cannot stand. As a result, their criticism that the magistrate had refused to allow the application to stay the hearing permanently cannot stand either.

Ground (2)

13. Under Ground (2), it was argued that in the circumstances specific to the material date, the security officers of the Legislative Council and/or the police intended to close the western public entrance (1), and thus had unreasonably restrained the freedom of the protesters to take part in procession, assemble and express their views.

Particulars

14. The gist of the submissions of the Appellant’s side is as follows:

(1) MFI-2 is a news video clip provided by the defence and shows that Mr. Jasper TSANG Yok-sing, Legislative Council President, expressed to the protesters that they were allowed to stay inside the ground floor lobby of the LegCo Complex and to have an assembly there.

(2) It was not certain when Mr. Tsang made the above remarks. But reading from the content of his remarks, the remarks were made after the bumping and pushing happened. By the same line of reasoning, a few hours before the incident, Mr. Tsang had given instructions to allow the protesters to stay inside the ground floor lobby of the LegCo Complex.

(3) It was wrong for the magistrate not to take this factor into account but to suggest that the Legislative Council Security Office did not take action as they did not have sufficient manpower. As a result, the magistrate misled himself and concluded that it was reasonable for the personnel involved to try to close the western entrance. 

Discussion

15. Based on the reasons below, I am of the view that the complaint by the Appellant’s side does not stand:

(1) Regarding the same one argument, the defence mentioned it in their written closing submissions[11]and repeated it during supplementary oral submissions[12]. It would be impossible for the magistrate not to notice it. On the contrary, the content of paragraph 38 of the Statement[13] obviously sought to refute that argument.  The magistrate said that the continued occupation of the western entrance by the protesters all along was the best proof that they were aware that they had no authority to enter and leave via the entrance freely.

(2) In MFI-2, Mr. Tsang was found to be saying generally the following words: “Friday afternoon, a group of New Territories north east citizens entered the LegCo Complex and lodged a sit-in strike. They were quiet and obeyed the rules and their number was not too many. They did not affect the meeting in progress. The Secretariat made a decision to allow them to sit-in after consulting my views. However, at night, a group of people who was not related to the residents charged into the LegCo Complex and engaged in aggressive acts. So a decision was made to report the matter to the police. The Legislative Council Commission (“the Commission”) will hold a meeting on Tuesday to discuss the security measures of the lobby.”

(3) Mr. Tsang’s description of the incident was obviously a condensed version which could not possibly be comprehensive and fully accurate. In any event, his remarks did not show that: The marked demonstration area was expanded, those residents who entered by force were not allowed to be there out of tolerance, and other protesters had the authority to enter and leave the Legislative Council lobby freely.

(4) To sum up, Mr. Tsang’s remarks did not contradict the evidence of the witnesses. The magistrate was entitled to accept the version of the latter. It was persuasive that the magistrate relied on the fact that the protesters occupied the western entrance and did not allow it to be closed as corroborative evidence to show that the Security Office had all along tried to control or even reduce the scale of the chaos.

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 [2012] 5 HKLRD 556 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 Kamara that 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 Officer 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.

19. Regarding the above analysis, the magistrate has succinctly explained in paragraph 41 of the Statement and the relevant paragraphs of the case of Leung Kwok Wah are provided in the footnotes. It eludes understanding as to why the counsel still relied on it as the ground of appeal.

Verdict

20. The three grounds of appeal put forward by the Appellant’s side cannot stand, and they should be dismissed.