HKSAR v. WONG YUK MAN AND ANOTHER

[English Translation – 英譯本]

HCMA 453/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 453 OF 2013

(ON APPEAL FROM ESCC 271 OF 2012)

________________

J U D G M E N T

1. At the trial of this case originally there were ten defendants[1] who were prosecuted of a total of seven charges, which were charge (1), unlawful assembly, contrary to section 18(1) of the Public Order Ordinance[2]; charge (2) to charge (6), five counts of assisting or being concerned in the holding, convening, organizing, forming or collecting of a public procession, which was an unauthorized assembly, taking place in contravention of section 13 of the Public Order Ordinance, contrary to section 17A(3)(b)(i) of the Public Order Ordinance[3]; charge (7), knowingly taking or continuing to take part in or forming or continuing to form part of an unauthorized assembly, contrary to section 17A(3)(a) of the Public Order Ordinance[4].  After trial, the two appellants (D1 and D2) were convicted of charge (1) and (7) on the basis that they jointly committed the offences.  Apart from that, D1 was convicted of charge (2) and D2 was convicted of charge (3)[5].  As to the sentences, D1 was sentenced to a total of six weeks’ imprisonment, suspended for 14 months and was fined $2,400; while D2 was sentenced to five weeks’ imprisonment, suspended for one year and was fined $2,400.  The two appellants appeal against both conviction and sentence.

Prosecution case

2. In the afternoon of 1 July 2011, the Hong Kong Confederation of Trade Unions organized a public meeting and

procession, to which the police did not raise any objection and in which many political organizations, including the People Power, participated.  The number of participants was estimated to be about 50,000.  The participants were required to comply with conditions imposed by the police.  They were to assemble at Victoria Park and march to the former Government Headquarters in Central, where a public meeting would beheld and then they would be dismissed[6].  To facilitate the holding of this public meeting and procession, the police put in place temporary road closures and traffic diversions.  Trams could continue to run as normal.  It was not expected that tram services would be affected.  The police planned to re-open the roads affected as soon as possible after the procession had passed.  The following are facts directly related to this case.

3. The designated route of this July 1 Protest March was to begin from exit 16 of Victoria Park, then march along Causeway Road, Irving Street, Pennington Street and Yee Wo Street, turn into Hennessy Road, proceed to Queensway and Queen’s Road Central, and finally arrive at the Government Headquarters at Lower Albert Road via Battery Path.  The Hong Kong Reporter set up a street station outside the Family Planning Association at 130 Hennessy Road (ie Southorn Centre).  Many people mounted the street station to speak to and address the crowds.  Among these speeches and addresses, the most important ones were:  Between 6:29 and 6:30, D2 announced that the conclusion of the procession was not the end of what they would do on that day.  [He asked] the young and strong ones among the crowds of people to wait for the people who had not yet reached that spot.  [He said] that he had been assigned by D1 to be the chief commander of what remained to be done, that they would first go to the Government Headquarters to support the procession organized by the Civil Human Rights Front, and that afterwards they would demonstrate people’s power.  Between 7:29 and 7:40, D1 confirmed that D2 (“Dai Gao” [Big Guy]) was the chief commander.  [He urged] all comrades except the elderly, women and children to go to the Government House to block up Garden Road.  If that could not be done, all of them should sit down on Queen’s Road Central.  At 8:30, D5 told the people that the police were taking away the coloured cordon strings in front of the street station.  At 8:31, D1 instructed the people in front of the street station to sit down.  At 9:47, D3 called on the people to start marching slowly to the Government House.  At 9:48, D1 announced that both at the front and at the back of this procession there were People Power’s voluntary workers, and that D2 was at the forefront of this procession.  Apart from the above speeches, according to the prosecution, the time when the people who gathered in front of the street station started to move off was later than the time when the rearmost part of the July 1 Protest March procession went past that spot.  Therefore, this very same assembly of people, in the above-mentioned period of time, which was a rather long period of time, were an obstruction to the smooth passage of the July 1 Protest March procession, and the police had to repeatedly asked them to give way.

4. The contents of the speeches and addresses referred to above are only a brief summary.  A much more thorough and complete record prepared in colloquial language is available in this case (exhibit P19b), which is a transcript of what was said at the scene as recorded in the video-recordings filmed from different angles (exhibit P19)[7].  The part relevant to the above-mentioned periods of time can be found from pages 265 to 283 of the appeal bundle[8].  What subsequently happened was that about 1,000 protesters, led by D1, D2 and others, moved along Hennessy Road towards Central.  In this process the more significant scenes were: At 10:02, outside the Methodist Church, the protesters followed the instructions of D1 and squatted down and got up several times (to play the wave).  When the protesters were in the vicinity of the police headquarters, they occupied the tram tracks, with the result that tram services were impeded for about half an hour. Furthermore, the protesters, obeying the commands of D1, D3, D5 and others, sometimes moved forward, sometimes halted and they proceeded in a slow pace. During this period, D1 said publicly that scouts would come back from the places ahead to report (10:23).  Later, he said that they would turn left into Garden Road and walked uphill, but that they would encounter rows of mills barriers there (10:46).  Finally, D1 announced that they would be unable to force their way through the police vehicles, so the procession would change course and march towards Cheung Kong Center on Queen’s Road Central (10:53).  In these circumstances the protesters moved on slowly and half an hour elapsed (10:55 to 11:24) before they reached Pacific Place, Queensway and the Cotton Tree Drive junction.  The transcript of video-recordings relevant to these facts can be found from pages 283 to 290 of the appeal bundle[9].

5. On the basis of these facts, the prosecution were of the view that the defendants concerned, including D1 and D2, had undoubtedly committed the offence under section 17A(3)(b)(i) (“convening an unauthorized assembly” for short, ie charges (2) to (6)) and the offence under section 17A(3)(a) (“knowingly taking part in an unauthorized assembly” for short, ie charge (7)).  Their reasons were: Firstly, neither the assembly in front of the street station nor the procession after the people began to march (collectively called “the procession”) was a constituent part of the July 1 Protest March.  Secondly, D1 and D2 and other defendants concerned were the conveners of the procession, but they had never notified the Commissioner of Police in accordance with section 13 of the Public Order Ordinance, and had never received a notice of no objection from the Commissioner of Police. Therefore, the assembly was an unauthorized assembly within the meaning of section 17A(2)(a) of the Public Order Ordinance.  Thirdly, the above matters were obviously within the knowledge of D1, D2 and other defendants concerned, but they took or continued to take part in it.

6. As for charge (1) of unlawful assembly, it was directed against what happened at the Cotton Tree Drive junction and outside Bank of China, ie what the protesters did in preparation for and what actions they actually took for rushing the police when they were confronted with the police cordon.  In brief, men of sturdy build were positioned in the front row.  They locked arms and formed one continuous line.  Then, several rows of people acted in concert, chanting certain numbers as they walked towards and pressed their bodies against and pushed the police cordon. This lasted for three to five minutes.  The following is the description of this incident by the trial magistrate Mr Joseph To, extracted from his Statement of Findings[10]:

“11:25

43. At about 11:25, PW8 [Chief Inspector Choi Tung-choi], who was at Cheung Kong Center, received instructions that the defence line there should be moved eastwards to Queen’s Road Central outside Bank of China Tower. The reason why he directed the police to set up the defence line was that on the basis of the information he obtained at that time, he suspected that the procession in question was an unauthorized assembly.

44. When the evidence given by the prosecution witnesses and the video recordings were looked at as a whole, what happened as revealed by the prosecution evidence was as follows.

45. A police line constituted of two rows of policemen, a total of about 38 people, was set up in front of Bank of China Tower. At that time the marchers, led by D1 and D2, had reached the area east of the police line, about 200 metres away.

46. [D1] and [D2] organized the protesters into several rows, a total of several dozens of people, who locked arms and stood side by side. Those who were tall and strong stood in the front row. D2 stood in the middle of the front row.

47. Among the arm in arm marchers in the first row, only [D2] and [D8] did not wear any masks and did not cover their faces with anything.

48. [D1] commanded these several rows of protesters to listen to the chanting of ‘1,2,1,2 …’ or ‘clearthe way; clear the way’ and march towards the police line. After moving forward a few steps, they stopped at the instruction of [D1].

49. The several rows of protesters rehearsed this two or three times, and then they stopped about 10 feet in front of the police line, face to face with it. The procession stopped behind them, not far away. The participants of the procession were waiting; they were either standing or sitting.

11:29

50. At 11:29, the police warned the protesters that they could not cross the police line.

11:30

51. At about 11:30, the front row protesters and the police defence line were in this situation: The distance between the two sides was about 10 feet. The members of each side were standing, facing the opposite side. In between there were many people, who had photographic or video recording equipment in their hands or who were holding such equipment high (hereinafter referred to as ‘reporters’). They were standing on both the left and the right of the empty space between the protesters and the police defence line, photographing and video-recording.

52. The area surrounded by these different groups of people, namely the protesters, the police defence line and the reporters on both sides of the empty space between the first two groups, was only a small area of less than 10 odd feet by 10 feet. [D1] was in this area.

53. [D1] and [D2] tried to ask the reporters to move backwards towards either end of the empty space, but to no avail. At that time, none of them used a loudhailer.

54. [D1] went up to the police line and spoke to the police. He also gestured with his hand by pointing at the area behind the police line. The police did not say anything to [D1]. They just held on in their positions without budging a bit at all.

11:32

55. At about 11:32, someone, who was somewhere close to the front row arminarm marchers, said through a loudhailer or cried out loudly, ‘If you don’t let us go forward, we’ll break through it group by group.’

56. About 30 seconds later, [D1] directed the arm in arm marchers to chant ‘1, 2, 1, 2...’ together and to march towards the police line.

57. Since on both sides of the empty space between the police and the marchers there were a lot of reporters who were holding photographic or video recording equipment in their hands, among the arminarm marchers actually only [D2] and two or three people, who were wearing Guy Fawkes masks, on each side of him could march forward without any obstruction.

58. They just walked forward a few steps and the distance between they and the police line was reduced to almost nil. [D1], who was in front of [D2] on [D2]’s left, spread his arms and shouted. ‘Alright!’.

59. [D2] and the protester on his left side (they were arm in arm) paused. At this moment, there was no clear sign that they were moving forward.

60. However, the chanting of ‘1, 2, 1, 2...’ did not stop. Two protesters on [D2]’s right side (the three of them were arm in arm) continued to move forward, causing the people (including [D2]) on their right and on their left (who were arminarm) to press on towards the police line. These two protesters had bodily contact with the police.

61. On the other hand, the several rows of protesters behind the first row continued to march forward amidst the chanting of numbers and pushed the first row towards the police line, which was at that moment under assault.

62. The two rows of policemen which constituted the police line did their best to defend, but their combined strength was obviously less than that of the several dozens of protesters who were marching forward and chanting ‘1, 2, 1, 2...’. The police line (and the people with photographic or video recording equipment in their hands, who were in between the police and the protesters), which was under assault, fell back or moved backwards. When this was happening, the reporters on the right hand side of the defence line wobbled and moved slightly towards the spot where the assault took place (ie the middle of the police defence line).

63. After less than 20 seconds, the police issued a warning to the marchers that they had to stop charging the police or the police would use force, but they were ignored by the marchers.

64. A few seconds later, the defence line was nearly broken through by the protesters. Some police constables or police officers of the second row of the police line lost balance and fell. The police of the second row of the police line discharged pepper spray at the back row protesters who were continuously pushing the front row protesters to the police line. Many protesters who charged the police line sat down or fell down. It was chaotic, but clearly the police succeeded in stopping the protesters from continuing to march forward.

65. Later, some policemen helped their colleagues to get up; some policemen helped the protesters who had fallen to the ground and some protesters washed away the pepper spray stuck on their faces. The situation began to be under control. In the end, the police succeeded in maintaining the cordoning off of the area and preventing the protesters from crossing the area outside Bank of China Tower.

66. The whole assault incident lasted three to five minutes.

67.  When the situation stabilized, a stalemate between the two sides ensued.  On the one hand, the encirclement operation initiated earlier on by PW12 [Chief Inspector Chan Sin-nga] continued, but the marchers could leave freely.  On the other hand, the cordon line outside Bank of China Tower was still in operation and the marchers were not allowed to cross that line, while the marchers remained on the road in front of the cordon line and continued their demonstration.”

7. At 1:36 am on 2 July 2011, the police issued warnings through a loudhailer to the 200 or so protesters who still remained at the scene that they were participating in an unlawful assembly, and that if they did not leave within 10 minutes they would be arrested.  Ten odd minutes later, the police commenced action and arrested 138 protesters, including all the defendants of the present case.  At 4:20 am the same day, the police action was over and the cordoning off of Queen’s Road Central was lifted.

Defence case

8. D1 elected to give evidence, which was summarized by the magistrate in the Statement of Findings. After sorting it out, I set it out as follows.

9. D1 had participated in protest processions many times before.  From his experience, he understood that the police would liaise and negotiate with the organizer of a procession both before the procession commenced and when the procession was in progress.  Even if the procession did not fully comply with the content of the notice of no objection, they would handle the situation in a flexible way so that the procession could finish smoothly.  Moreover, according to D1’s personal knowledge, previously there had been quite a number of occasions on which some participants of a large scale procession went to a different location to stage a demonstration after the procession reached its finishing point, and there were only a few occasions where the police would cordon off certain places or even press charges against any persons.

10. D1 went on and said that only one organization had formally notified the police about the July 1 Protest March, but the various bodies and organizations which took part in it were required to provide their own pickets.  People Power was no exception.  On the day in question, People Power formed a contingent comprising several thousand people for voicing their objection to the Legislative Council replacement mechanism.  In order to avoid coming into conflict with other groups, they were the last group to leave Victoria Park; but this arrangement affected the speed of their movement.  D1 further testified that when he participated in a procession he had the habit of going to different street stations to have contacts with the people.  When he addressed the people, his purpose was to create an atmosphere and the content was not to be taken seriously.  He had no intention to march directly to the Government House.  His plan was that first they would follow the route taken by the July 1 Protest March and went to the Government Headquarters, and then, depending on the number of participants, he would decide whether he would negotiate with the police about marching to the Government House.  At all material times he had kept communicating with the police.

11. D1 said that it was not until 9:30 pm that People Power’s marchers had all arrived at the street station outside the Family Planning Association.  When they set off towards Central, they did not cause any tram to brake abruptly; in fact, the police stopped the traffic and cleared the way for them.  They moved along in an on and off manner because sometimes they could not go forward and sometimes they did not want to leave the people at the rear too far behind.  He (D1) himself did not know that the police had set up a defence line outside Bank of China Tower.  He chanted numbers and told the several rows of protesters, including D2, to lock arms because he wanted to maintain order and preserve the formation, and when the protesters joined their arms with the arms of those on either side, it would be unlikely that they could act in anyway to assault the police.

12. D1 went on and said that at one stage the protesters stopped in front of the cordon line for some time, and he alone went forward and asked the police to move backwards, but he was ignored.  He directed the protesters to march to the police line.  His intention was to direct the marchers to stop at the last moment, so that the reporters could take photographs or videorecord the scenes of the two sides confronting each other at close-range.  In the end, disorder broke out and some people bumped against other people.  The reason was that the reporters, who were on both sides [of the protesters], thronged towards the marching protesters to take photographs and make videorecordings, and at the same time the police were doing a forward pushing action.  D1 maintained that he was not aware that the police had issued warnings that they could not cross the police defence line. He denied the allegation that the protesters pressed their bodies against and pushed the police cordon.  He complained that in the incident he had been pushed by the police so hard that he had to squat down.

13. According to D1, the incident very soon calmed down, followed by a stalemate between the two sides on Queen’s Road.  Except for the disorder which lasted just a few moments, the procession proceeded in a completely peaceful and orderly manner.  D1 said that from the street station stage up to the moment when the police took action to arrest them, he kept on calling on the protesters to act in a peaceful and reasonable manner and not to have any violent bodily contact with the police. D1 considered that the procession in which he participated was a lawful one and the route it took was the traditional route taken by the July 1 Protest Marches.

14. Defence witness Mr Chor [transliteration of 左] (DW2), who was called by D1, gave evidence that he had taken part in the procession that day, but that the crowd management measures taken by the police were defective, resulting in serious congestion.  At 7:30 pm he (DW2) arrived at the street station outside the Family Planning Association.  He saw that the police encircled crowds of people with plastic tapes.  The crowds of people could not continue to move forward, so they sat on the ground in the street.  Eventually, it was only at about 10 pm that the police allowed the crowds of people in front of the street station to move on.  At that time, the police sealed off some roads for them, but the police also cut the procession into several sections, so that the front part of the procession had to stop from time to time to wait for those who lagged behind.  DW2 claimed that all along he regarded the Government Headquarters in Central as the destination of the procession.  He claimed that (under cross-examination) he “didn’t hear” or “didn’t notice” whether anyone had said they were going to the Government House.

15. D2, D5 and D8 did not give evidence and did not call any witness.

16. D1, D2 and D5 each produced transcripts which did not originate from the police video recordings of what happened at the scene.

Findings made at trial

17. The trial magistrate found that exhibit P19 (DVD highlights) and P19b (transcript) were admissible and reliable evidence and accorded them absolute weight[11].  He found that in relation to the key issues all the prosecution witnesses were honest and reliable[12].  He found that the evidence of D1 and DW2 was incredible[13].  He found that the procession, the subject-matter of this case, was not the July 1 Protest March and that undoubtedly the conduct of D1 and D2 was such that they had convened and had knowingly taken part in the unauthorized assembly

in question[14].  He found that the police line outside Bank of China was lawful and that what happened outside Bank of China was that an unlawful assembly was formed and was in operation.  The reason was that the protesters conducted themselves in such a manner that it was likely to cause the people present at the scene to fear that they would commit a breach of the peace.  It was also found that some defendants were liable, under the doctrine of joint enterprise, for charging at the police line which ultimately took place[15].

18. In contrast with the above, the magistrate found that although D5’s conduct was suspicious, the prosecution failed to prove that he convened a procession the destination of which was the Government House.  In his speech made at the street station (6:54 pm) he only mentioned that they were going to the Government Headquarters (charge (6)). Since on that night the police had never publicly announced that that procession was an unauthorized assembly, the prosecution failed to prove that D5 knowingly took part in such an assembly (charge (7))[16].  Similarly, although D8 took part in the chanting of numbers rehearsal outside Bank of China and actually marched towards the police line, the video recordings showed that at the last moment the constitution of the first row of protesters did indeed change, so the prosecution failed to conclusively prove that D8 took part in an unlawful assembly (charge (1))[17].

Appeal against conviction

D1 – grounds (1) and (1A)

19. D1’s ground (1) is that many kinds of assembly of persons which relate to basic human rights are excluded from the definition of “meeting” provided in section 2 of the Public Order Ordinance.  The magistrate did not consider whether such kinds of excluded assembly of persons can be given a generous interpretation so as to exclude a political assembly from the definition.  Ground (1A) alleges that the definition of “meeting” in section 2 of the Public Order Ordinance is discriminatory against political meetings and infringes upon “the right to hold opinions without interference” enjoyed by the participants of a political meeting, and that therefore it is unconstitutional.  The court should read into the definition an exclusion concerning politics in order that section 2 becomes constitutional.

Content

20. These two grounds concern only the offences of convening an unauthorized assembly and knowingly taking part in an unauthorized assembly, ie charge (2) against D1, charge (3) against D2 and charge (7) against both D1 and D2.  I think they can be dealt with together.

21. Mr Kwok, counsel for D1, submitted that the two offences which I further abbreviated to be the convening offence and the taking part offence were unlawful all because of the definitions of certain terms provided in section 2 of the Public Order Ordinance.  According to these definitions, a “procession” includes a “meeting held in conjunction with such procession”, but a “meeting” does not include any gathering or assembly of persons convened or organized exclusively for any of the following purposes:

(1)  for social, recreational, cultural, academic, educational, religious or charitable purposes, or as a conference or seminar bona fide intended for the discussion of topics of a social, recreational, cultural, academic, educational, religious, charitable, professional, business or commercial character;

(2)  for the purpose of a funeral;

(3)  for the purpose of any public body; or

(4)  for the purpose of carrying out any duty or exercising any power imposed or conferred by any Ordinance.

22. In other words, when section 13 of the Public Order Ordinance, read together with other provisions of the Ordinance, requires that a person who intends to hold a public procession[18] must notify the Commissioner of Police in advance and obtain his “no objection”, otherwise the procession will become an unauthorized assembly, such requirement only regulates meetings other than those listed from items (1) to (4) above and processions held in conjunction with such meetings, that is to say, including meetings and processions which are of a political nature (I shall call them collectively as “procession”).

23. Mr Kwok considered that this violated Article 25 (All Hong Kong residents shall be equal before the law) and Article 27 (Hong Kong residents shall have freedom of speech ... of assembly, of procession and of demonstration) of the Basic Law, and that it also contravened Article 1 (Entitlement to rights without distinction), Article 16(1) (the right to hold opinions without interference), Article 17 (Right of peaceful assembly) and Article 22 (Equality before the law and equal protection of the law) of the Bill of Rights.  The fundamental reason is that in Hong Kong there is more freedom in processions held by “seven kinds of people” than processions held by other people (this is the wording used by Mr Kwok).  Such processions are processions held for social, recreational, cultural, academic, educational, religious or charitable purposes.  By contrast, people cannot hold with complete freedom any procession related to a political issue.

24. In Mr Kwok’s view, there is no tenable legitimate aim which can be relied on to make such distinctions in the Public Order Ordinance, therefore the various rights of those people who wish to express their political views by means of a procession (see above) are improperly restricted.  Furthermore, there are no absolute criteria to define what is social, recreational, cultural, academic or educational purpose.  The very same matter which some people regard as non-political may be viewed by certain people as a political matter.  That being so, if the question of whether it is required or not required to notify the Commissioner of Police in advance depends on the views held by a person (which is different from those held by others) as to the nature of a procession, then what it amounts to is that under the Public Order Ordinance, a person who holds certain views is being discriminated against.  It can even be said that that person’s right to hold opinions without interference is being infringed upon.

25. Mr Kwok suggested that in order to remedy this defect, the court should give a generous interpretation to the nature of the above-mentioned seven kinds of meetings; for example, “social purpose” could be interpreted as the gathering together of people who hold the same political views; “cultural purpose” could refer to promoting the practice among Hong Kong people to take to the streets to voice their opinions, “academic purpose” could include discussing political matters among a large number of people; “educational purpose” could be the fostering of awareness of civic rights and duties through holding of meetings.  In addition, the court may also read into section 2 of the Public Order Ordinance the words “any gathering or assembly of persons held for a political purpose”.

26. The foregoing is what I understand to be Mr Kwok’s submission.

Discussion

27. In Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229 the Court of Final Appeal said that a meeting was inextricably intertwined with a procession:

“3. A peaceful assembly may consist of a procession … A procession has been aptly called an assembly in motion …”

Therefore, Mr Kwok’s view that the definition of “meeting” in section 2 of the Public Order Ordinance determines what kind of “procession” shall be subject to the regulation imposed by section 13 of the Public Order Ordinance should be correct.  In this regard, the respondent did not raise any objection.

28. What I cannot accept is that Mr Kwok placed the people who convened the seven kinds of procession in respect of which the Commissioner of Police did not need to be notified in advance into one category, and placed the people who convened other kinds of procession into another category, and then made contrived comparison between these two categories.  The defect of this approach is that it is based on the presumption that members of these two categories cannot freely go from one category to the other.  The reality is exactly the opposite.  For example, at this moment A is organizing a procession in respect of certain political issues.  At the same time he can also organize another procession for a charitable project.  In respect of the former procession, he is required to give the police prior notice, but in respect of the latter he is not required to do so.  What he is or is not required to do is no different from what B, C or D is or is not required to do.  This is analogous to A’s having a choice between going to a certain place by motorcycle or by bicycle.  The former choice requires a driving license, whereas the latter does not and no one is an exception.  This can never constitute discrimination under the law.  The relevant legal terminology which can describe this situation[19] is that there are no identifiable comparators, and because every person is treated the same, there is no need to consider the justification for differential treatment[20].

29. It is undeniable that the requirement that a procession may take place only if the Commissioner of Police is notified in advance and his no objection has been obtained may impair freedom of speech and freedom of assembly.  However, had the court already in Leung Kwok Hung adjudicated on the question of whether or not this scheme is constitutional?  The point that seven kinds of procession are excluded from the relevant provisions did not appear in the discussion which took place in Leung Kwok Hung, so it is possible that it did not come to the notice of the Court of Final Appeal, but wouldn’t the generality of the judgment of that case be highlighted by this fact?  In any event, the procession organized by the defendant in that case was definitely political in nature and had nothing to do with any one of the seven purposes, namely social, recreational, cultural, academic, educational, religious or charitable.  What he protested against was that a social movement activist was convicted of assault and obstruction of a public officer.  However, the Court of Final Appeal did not find that the notification scheme was unconstitutional (except for a small part).  The Court of Final Appeal did not make any criticism that the scheme would impede the participation of citizens in political matters.  It was considered that the scheme could enable the police to more efficiently fulfil their duty of assisting the citizens to exercise the freedom of assembly.

30. Mr Kwok suggested that the definition of “meeting” should be given a generous interpretation, or that the words “any gathering or assembly of persons held for a political purpose” be read into the provision.  His purpose is to enable political meetings to be held freely without the need to give notice, but this is tantamount to overturning the decision in Leung Kwok Hung.  Mr Kwok’s allegation that the notification scheme violates Article 16(1) of the Bill of Rights (the right to hold opinions without interference) is without merit.  I find it hard to imagine how come anyone would regard a “gathering or assembly of persons convened or organized exclusively for [any one of the seven purposes excluded from the definition]” (see section 2) as a political procession, but even if there is such a person, the extra thing which this person mistakenly thinks he needs to do is just to notify the Commissioner of Police in advance and he can still holds his opinions.  Conversely, if anyone regards a political procession as (for example) a gathering purely for social purpose and did not give the police prior notice, he may be prosecuted as the notification scheme had already been held to be constitutional.  However, this still has nothing to do with Article 16(1) of the Bill of Rights.  What Article 16(1) is directed against is the situation in which a person commits an offence just because he believes in certain things or does not believe in certain things (ie a person can be convicted for his having certain thoughts).

D1 – ground (2)

31. Ground (2) is that the procession in question was a spontaneous one and was not subject to the regulation laid down in section 13 of the Public Order Ordinance, and that this should have been considered but had not been considered by the magistrate.

Content

32. This ground similarly concerns only the offences of convening an unauthorized assembly and knowingly taking part in an unauthorized assembly.

33. Mr Kwok referred me to the following comment made by Bokhary PJ in Leung Kwok Hung:

“209. One problem remains. On one reading of the notification requirements for public meetings and processions, they operate to preclude spontaneous demonstrations. That would be incompatible with due enjoyment of free assembly. But this problem can be solved by reading those requirements –— as I would read them –— not to cover spontaneous demonstrations. If this is reading down, so be it. This problem having been solved, no problem with notification remains.”

34. Mr Kwok’s view was that the procession in question was one spontaneously held by the participants. According to the dictum of Bokhary PJ, it was not covered by the notification scheme, therefore it would not become an unauthorized assembly for not giving the Commissioner of Police prior notice and not obtaining his no objection.

35. Mr Kwok further submitted that the notification scheme provided for in section 13 of the Public Order Ordinance was actually only applicable to[21]:

(1)  Any public procession which is a procession on a public highway or thoroughfare or in a public park;

(2)  Any public procession consisting of more than 30 persons;

(3)  Any public procession which is not a public procession of a nature or description specified by the Commissioner of Police by notice in the Gazette.

36. Therefore, if the procession in question proceeded on the pavement only, or if it consisted of less than 30 persons, then it did not belong to the category which required the giving of prior notice to the Commissioner of Police.  The prosecution had the duty to disprove these two elements at the trial, but the prosecution and even the magistrate just drew certain inferences adverse to the two appellants by relying on some unclear video recording images from which no conclusive answer could be obtained; for example, from the video recordings it appeared that the appellants were “only walking on the pavement or the roadway which had been cordoned off (just like a pedestrian zone)” (These are the words used by Mr Kwok).

Discussion

37. Leung Kwok Hung is directly related to the notification scheme provided for in the Public Order Ordinance.  After severing “ordre public” from the concept of “public order”[22], the Court of Final Appeal held by a majority that section 13 was constitutional.  Bokhary PJ dissented from the majority judgment only because the statutory scheme conferred on the Commissioner of Police the power to impose prior restraint on a procession and the power to ban the holding of a procession.  Bokhary PJ did not consider there was anything wrong with the requirement that prior notice be given to the police in respect of a procession.  In any event, in Bokhary PJ’s judgment, which consists of 30 odd pages, in only one paragraph (that is prargraph 209, the whole of which was quoted above) are spontaneous demonstrations mentioned. None of the other judges made any mention of it.  This is my first observation.

38. I have another observation, which is about the definition of a “meeting”.  According to section 2 of the Public Order Ordinance, it means:

“any gathering or assembly of persons convened or organized for the purpose of the discussion of issues… of … concern to the … public … or for the purpose of the expression of views on such issues … and includes any gathering or assembly of persons whether or not previously convened or organized at which any person assumes or attempts to assume control or leadership thereof for any such purpose… ”(emphasis added)

39. From this it can be seen that even if there is a meeting which is a purely spontaneous gathering or assembly and which, according to Bokhary PJ’s dictum, is not to be covered by the notification scheme, when any person at the scene assumes or attempts to assume control or leadership thereof, it will undergo a fundamental change in its nature.  Such a meeting and any subsequent procession that may arise therefrom ought to be regulated under the Public Order Ordinance.  As far as its nature is concerned, it is no longer different from a meeting or procession which is held following convening or organization.  This is a situation within the contemplation of the legislature at the time of enactment of the Ordinance and also one that is intended to be subject to regulation.

40. I shall apply the above analysis to the facts of this case.  At the street station the two appellants called the people together.  In so far as the evidence is concerned, this fact is indisputable.  It is out of the question that the people who assembled (just those arrested alone were 138 strong) were acting spontaneously.  However, even if their gathering together was a spontaneous act, what happened afterwards was obviously under the control or leadership of D1 and D2.  As to the question whether the people (later they became protesters) were walking on the pavement only, such an argument is plainly unrealistic.  At some stage at least they occupied even the tram track which was used as an emergency passageway.  If this argument of Mr Kwok has to be dealt with seriously, it will come to the same result —— it definitely cannot be established.

41. If any authority is required to support my view, in Leung Kwok Hung Bokhary PJ said:

“135. In Hong Kong, as in many other places around the world, pavements are often crowded and vehicular traffic is often heavy. The vehicles liable to be affected by traffic congestion included ambulances and fire engines. As enjoyed peaceably and without causing intolerable interference with free passage along the highway or jeopardizing crowd safety, the freedom of assembly, procession and demonstration can be facilitated rather than hindered by reasonable arrangements made by the police. And the ability of the police to make such arrangements is of course greatly enhanced by receiving reasonable notification…”

42. In this passage, Bokhary PJ did not treat pavement differently from public highway or thoroughfare.  He made no distinction between pavement and roadway, and regarded maintaining free passage along the highway and ensuring crowd safety as being in the same category.  This manner in which His Lordship expressed his views is the same as that in Yeung May Wan & Others v HKSAR (2005) 8 HKCFAR 137 when His Lordship discussed a series of cases concerning obstruction of the highway[23].  Among these cases, in Hirst & Another v Chief Constable of West Yorkshire (1987) 85 Cr App R 143, the scene of the offence was a pedestrian precinct. In Hubbard & Others v Pitt & Others [1975] 3 All ER 1, which was a case cited in Hirst, the event happened directly on a pavement.

43. The argument that pavement should not be regarded as part of a public highway or thoroughfare is totally unjustified.  When a group of protesters consisting of over 30 people step onto the roadway, they will obstruct traffic; when they go back onto the pavement they will obstruct other citizens.  The consequences of these two actions are essentially the same.  In both cases the police need to be notified in advance in order to assist these people in their procession.  When the number of people in the examples is increased to 300 or 3,000, the reason behind my view will become increasingly obvious.  Moreover, if the question of whether or not the roadway is occupied will create the difference for which Mr Kwok so strenuously argued, section 13 of the Public Order Ordinance will not be applicable to a public procession held in a public park, to which the section is presently applicable.

D1 – ground (3)

44. Ground (3) is the complaint that when the magistrate considered whether the procession in question was part of the July 1 Protest March, he based his consideration on his own political views.

Content

45. Again, this ground is related to convening an unauthorized assembly and knowingly taking part in an unauthorized assembly only.  The complaint is directed against the comment made by the magistrate that the July 1 Protest March “was only an ordinary procession without any special feature, while the procession involved in this case had its own special feature”.

Discussion

46. Ground (3) is aimed at some sentences in one of the paragraphs of the 116 page Statement of Findings. There, the magistrate explained why he did not consider the procession in question to be part of the July 1 Protest March.  The full text is set out below[24]:

“(v) The procession involved in this case was distinguishable from the lawful July 1 Protest March. The court’s considerations were as follows:

(1) The time and place at which it started was different. The July 1 Protest March commenced at about 3 pm on the day of the offence at Victoria Park, while participants of the procession involved in this case began to march at 9:56 pm at the Wanchai street station. In relation to this point, the court accorded full weight to the evidence of PW8 [Chief Inspector Choi Tung-choi]. His evidence about this point was based upon his personal observation at the scene on the day of the offence.

(2) Based on the same consideration, the court accepted PW8’s evidence, which was based on his personal observation, and found that the finishing point of the lawful July 1 Protest March was the Government Headquarters and that the marchers were to leave by walking downhill via Lower Albert Road and Garden Road, but that the procession involved in this case was to move uphill by way of Garden Road, with the Government House as its finishing point.

(3) The court found that although the time at which the lawful July 1 Protest March was to end had not been fixed, it had to be within a reasonable range. The time of conclusion of the procession involved in this case was (a) the time when the Chief Executive withdrew the proposal, or (b) at the earliest the following day, which was a holiday.

(4) The lawful July 1 Protest March was only an ordinary procession without any special feature, while the procession involved in this case had its own special feature, ie if the marchers were not allowed to march to the Government House, they would not compromise and would block up roads and obstruct traffic.

(5) The time when the procession involved in this case set off at the street station was 9:56 or so, while earlier on the last batch of the participants in the July 1 Protest March passed the street station at 9:26 and headed towards Admiralty. The court considered that the procession involved in this case could be objectively and distinctly separated from the lawful July 1 Protest March. Regarding this issue, [D1]’s evidence was that People Power had its own workers for the front part and the rear part of its procession. This evidence lent further support to the court’s finding.

(6) The procession involved in this case had only one single demand. It was called together, organized and held by one single organization.

(7) What [D2] said at the street station clearly showed that the procession which he called on the people to take part in was different from the lawful July 1 Protest March organized by the Civil Human Rights Front.

(8) [D1] also mentioned that the Government Headquarters would be closed at 8 pm and he urged the marchers to hold a demonstration at the Government House.

(9)  At the material time, PW12 [Senior Inspector Chan Sin-nga] spent about one and a half hours at the street station to appeal to the people crowded in front of the street station not to obstruct the July 1 Protest March, but she was ignored.”

47. It can clearly be seen by reading paragraph (v)(4) that the meaning of “without any special feature” is that the Protest March would end when the procession finished, while the meaning of “special feature” is that the people concerned would not stop until they achieved their goal.  I do not think that this statement contains anything which is political.

D1 – ground (4)

48. It is alleged in ground (4) that the magistrate erred when he tried to strike a balance between freedom of assembly and public order.  His interpretation of the relevant provisions was irreconcilable with the freedom of assembly, because it deprived the freedom of assembly of its substance, ie citizens’ participation in politics.  He failed to consider the social cause which underlay the activities in question, resulting in a complete absence of any attempt to strike a balance from the standpoint of tolerance.  In other words, the consequence of the magistrate’s interpretation was that public order requirements would override [the right to] participate in politics, and this was a violation of human rights principles.

Content

49. This ground is related to unlawful assembly only, which is charge (1), involving both D1 and D2.

50. Mr Kwok submitted that when interpreting section 18 of the Public Order Ordinance, it was necessary to adopt a test, namely the reconcilability test, to test whether the interpretation was reconcilable with the freedom of assembly.  He cited the following dictum by Bokhary PJ in HKSAR v Ng Kung Siu & Another (1992) 2 HKCFAR 442 to support his argument[25]:

“ The legislature having chosen the approach which protects the national and regional flags and emblems from desecration —– having so chosen by enacting laws which provide such protection —– the question in the present case is whether those laws are constitutional. And the answer, as I see it, depends on whether such laws are reconcilable with the freedom of expression guaranteed by the constitution. The test is one of reconcilability.”

51. In Mr Kwok’s view, the result of putting excessive emphasis on public order will produce “a society verging on a totalitarian society in which the mere permission granted to citizens to chant certain slogans at designated places while being surrounded by large number of security forces is counted as freedom”.  This kind of “ritualized freedom” is not reconcilable with the freedom of assembly and is a direct attack on the citizens’ [right to] participate in politics (the words in quotation marks were the words used by Mr Kwok himself).  Instead of adopting such an interpretation, the court should refer to American cases, and apply, in relevant circumstances, the concepts of “trivial rough incidents” and “moments of animal exuberance” to exclude certain kinds of bodily contact which might occur during a demonstration or procession from the elements constituting an unlawful assembly.

52. Mr Kwok considered that another basis on which the freedom of assembly could be reconciled with public order comes from the correct understanding and application of this observation by Bokhary PJ in Yeung May Wan:

“144. The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art.27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate …… What the public can reasonably be expected to tolerate is a question of fact and degree. But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable.” (emphasis added)

53. Finally, Mr Kwok quoted some passages from the book Human Rights and Policing[26] and argued that if underlying causes of social problems were not satisfactorily addressed, then however effective the police were in carrying out their duties, and however tranquil the social order appeared to be, that was likely to be the result of repression and injustice, and that while in the shorter term prohibiting a public assembly might prevent disorder, in the longer term it might contribute to an increase in tension in society:

“Policing can respond, with greater or lesser effectiveness, to manifestations of criminality, social tension and civil unrest but, whilst it might prevent some forms of criminality or even some of the social or economic conditions that are at the root of tension or disorder, it cannot remove their underlying causes. When those underlying causes are not satisfactorily addressed policing can assist in maintaining a form of social order characterized mainly by a relative lack of civil unrest. However, it will be a social order dependent upon repression and injustice rather than on consent, respect for democratic value, and delivery of social justice.” (pages 22 to 23)

“Not only does the enjoyment of important human rights have to be balanced against the enjoyment of other rights or such desirable ends as public order, the effects of repressing freedoms such as the right to opinion and expressions or to peaceful assembly have to be taken into account, as to the effects of failing to enforce the rule of law. In the shorter term prohibiting a public assembly may prevent disorder, but in the longer term it may contribute to an increase in tension in society.” (page 50)

54. The point which Mr Kwok tried to make is that the procession in question was actually a consequence brought about by certain matters which the public were concerned about, and that the police should not have hastily formed the cordon line and subsequently prosecuted the protesters on the ground that they breached the peace.  He said that such measures would only increase the tension in society.

Discussion

55. I do not consider that the test of reconcilability mentioned by Bokhary PJ in Ng Kung Siu is a test possessing any unusual qualities.  In the same passage His Lordship pointed out that the question in that case was whether the laws about the national flag and the regional flag were constitutional (see paragraph 50 above).  The analysis he made in respect of this question, as far as juridical logic and principles were concerned, was no different from those made by the other judges.

56. Nor do I consider that Mr Kwok could read too much into the passage by Bokhary PJ in Yeung May Wan (see paragraph 52 above).  Surely, His Lordship’s comments cannot be taken to mean that a person who takes part in a procession or meeting enjoys unlimited freedom.  What he meant to say could only be this: What the public can reasonably be expected to tolerate cannot be lower than the legitimate rights conferred by the constitution on a person who takes part in a procession or meeting. Mr Kwok’s submissions, which were based on some sentences casually extracted from this long judgment, had not assisted the court.

57. A police force can be used to maintain law and order but it can also become a tool of repression; this is a matter of common sense.  In Leung Kwok Hung the Court of Final Appeal already held that the freedom of speech could not be separated from the freedom of assembly and that these freedoms were of cardinal importance for the stability and progress of society[27].  As to the case of Chevron USA v National Labor Relations Board (672 F2d 359) and the American cases referred to therein concerning the right to strike, they are of no assistance to the appellants.  In the judgment of Chevron it was pointed out that minor acts of misconduct would go hand-in-hand with most strikes, and that a “trivial rough incident” or a “moment of animal exuberance” did not convert otherwise peaceful picketing into violence.  However, acts which had actually been held to be protected under the constitution were only, for example, swearing abusively at non-strikers, and spitting on a car as it passed the scene.  Conduct like bending an aerial on a car, following a non-striker’s car and temporarily blocking its way, and throwing an egg at a non-striker’s car was held to be not protected, because such conduct amounted to intimidation and threats of bodily harm.  This element is not significantly different from the breach of peace required in the case of unlawful assembly.

58. To sum up, it was already held in R v To Kwan Hang & Another [1994] 2 HKC 293 that section 18 of the Public Order Ordinance was not inconsistent with the Bill of Rights.  The Court of Appeal held that the right to assembly could be exercised only in a peaceful manner.  In relation to this very same point, Bokhary PJ also had this to say in Leung Kwok Hung [28]:

“... where public gatherings are not peaceable, there is room for arrest and prosecution for unlawful assembly or riot under ss. 18 and 19 respectively.”

Such being the case, unless Mr Kwok could specifically point out in what way the magistrate erred in applying section 18, his various complaints could hardly be established.

D1 – Part II of the submission

59. Mr Kwok’s written submission has a so-called Part II, which covers the whole of D1’s appeal (and certainly also touched upon D2’s appeal).  To a large extent, its content overlaps with that of the four grounds of appeal.  Apart from the allegation that the Public Order Ordinance is discriminatory, it is contended in this part of his submission that: Firstly, the procession in question was a spontaneous one, therefore no prior notification was required.  Secondly, as long as the participants of this spontaneous procession stayed on the pavement, the police had no reason not to allow them to go to the Government House.  Thirdly, in any event, since the procession remained on the route taken by the July 1 Protest March, the police had no reason to set up a defence line outside Bank of China, which was an improper restriction on people’s freedoms.  Fourthly, D1 did not charge the police line and even if there was a charge on the police line, the blame should not have been put on him.  Fifthly, D1’s conduct would not put any person in fear that a breach of the peace would be committed.  The court should not take an unduly restrictive view on this issue.  To put it in another way, D1’s conduct should be tolerated for the sake of safeguarding freedom.

60. Unless I have any misunderstanding, the above covers all the contents of this 17 page submission.  There is no additional argument.  The benefit provided by this submission is that it linked together all the grounds of appeal and enabled the court to take a bird’s-eye view of these grounds.  As to its specific contents, I have dealt with most of them already.  What remain are matters about the police cordon and issues that directly concern D1 (and D2), which I shall discuss later.

D2 – ground (1)

61. D2’s ground (1) is the complaint that the particulars of the offence in charge (1) of unlawful assembly are duplicitous.

Content

62. The full text of 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.”

63. Mr Pun, counsel for D2, argued that eight different offences were created by section 18(1):

(1)  Three or more persons assemble together and conduct themselves in a disorderly manner, intending to cause any person reasonably to fear that they will commit a breach of the peace.

(2)  Three or more persons assemble together and conduct themselves in a disorderly manner, intending to cause any person reasonably to fear that they will by such conduct provoke other persons to commit a breach of the peace.

(3)  Three or more persons assemble together and conduct themselves in a disorderly manner, likely to cause any person reasonably to fear that they will commit a breach of the peace.

(4)  Three or more persons assemble together and conduct themselves in a disorderly manner, likely to cause any person reasonably to fear that they will by such conduct provoke other persons to commit a breach of the peace.

(5)  Three or more persons assemble together and conduct themselves in an intimidating, insulting or provocative manner, intending to cause any person reasonably to fear that they will commit a breach of the peace.

(6)  Three or more persons assemble together and conduct themselves in an intimidating, insulting or provocative manner, intending to cause any person reasonably to fear that they will by such conduct provoke other persons to commit a breach of the peace.

(7)  Three or more persons assemble together and conduct themselves in an intimidating, insulting or provocative manner, likely to cause any person reasonably to fear that they will commit a breach of the peace.

(8)  Three or more persons assemble together and conduct themselves in an intimidating, insulting or provocative manner, likely to cause any person reasonably to fear that they will by such conduct provoke other persons to commit a breach of the peace.

64. According to Mr Pun, an unlawful assembly can be formed in the above-mentioned eight ways, because: Firstly, “disorderly conduct” is very different in nature from “intimidating, insulting or provocative conduct”.  “Disorderly conduct” can be interpreted according to the ordinary use of words.  This is the view taken by a majority of the Court of Final Appeal in HKSAR v Chow Nok Hang & Another [2014] 1 HKC 241[29].  Conduct covered by this term can be trivial.  As for the latter kind of conduct, it has been discussed and defined in a number of decided cases.  It is obviously a more serious kind of conduct.  Secondly, “intended to cause any person reasonably to fear” is a matter of subjective intention, whereas “likely to cause any person reasonably to fear” is purely objective assessment.  What the prosecution have to prove in respect of each of these elements is totally different from each other.  Thirdly, the persons who are to commit the requisite crime referred to in “the persons so assembled will commit a breach of the peace” are clearly not the same as those referred to in “provoke other persons to commit a breach of the peace”.

65. The particulars of offence of charge (1) of the present case did not differentiate at all between the various elements of unlawful assembly:

“[D1, D2 and five other persons], you are charged that on or about the 1^st day of July 2011, in Hong Kong, together with other persons unknown, took part in an unlawful assembly, in that you assembled together with each other and with other persons unknown and the persons so assembled 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.”

66. Lastly, Mr Pun cited the English case of R v Stanley Patrick John [1971] Crim LR 283 and submitted that section 5 of the Public Order Act 1936 (any person who in a public place or at any public meeting uses threatening, abusive or insulting words or behaviour … with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be occasioned shall be guilty of an offence), part of the wording of which is similar to that of section 18 of the Public Order Ordinance, had been held by a judge of the Inner London Quarter Sessions to be containing two allegations and the charge, which was a word for word copy of the section, had to be set aside:

“The words ‘with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be occasioned’ envisaged such different situations and such different intents that although certain situations existed where it could describe two ways of committing the same offence, two offences were created.”

Discussion

67. Another holding in Stanley Patrick John was that:

“… the words ‘threatening, abusive or insulting words or behaviour’ were adjectival in their nature, being descriptive of a course of conduct conducive to a breach of the peace. As such they created one offence.”

In other words, the judge who heard the case considered that it was not objectionable that in the offence the three different kinds of words or behaviour were grouped together, and that what was objectionable was only that “with intent to provoke a breach of the peace” or “whereby a breach of the peace was likely to be occasioned” were grouped together.  This was clearly a question of construction of the provision in question and different judges may arrive at different conclusions[30].

68. The same provision was the focus of discussion in another case: Vernon v Paddon [1973] 3 All ER 302.  The defendant in that case was charged with using threatening “and” insulting words “and” behaviour whereby a breach of the peace was likely to be occasioned.  On appeal, the Divisional Court held by a majority that it was not improper to set out “words” and “behaviour” conjunctively in the charge.  One of the reasons was that according to R v Clow [1965] 1 QB 598 and other cases, acts which were different but were related to a single incident, even if they could be regarded as constituting separate offences, could still be put together conjunctively in one single count[31].  However, what is equally important or even more important is the view of Melford Stevenson J (one of the majority judges) concerning the structure of the provision concerned:

“No one in my view can read those words [section 5, Public Order Act 1936] without realizing that what the section is aimed at is the punishment of any form of human conduct which is intended to provoke a breach of the peace, or whereby a breach is likely to be occasioned. That is the essential feature of the offence. The fact that the adjectival phrases, and they plainly are adjectival phrases, used to describe the behavior or conduct which may result in a breach of the peace are expressed disjunctively does not in my view militate at all against the view that this section is aimed at one offence.”

69. In my judgment, section 18 of the Public Order Ordinance is aimed at an assembly which is made up of at least three persons and which will cause people to fear that there will be a breach of the peace. This is the one single offence created under section 18. As for the conduct of the persons who constitute such an assembly (do they conduct themselves in a disorderly manner or in an intimidating, insulting or provocative manner?), the intention of those people (do they intend to cause any person to fear that they will commit a breach of the peace or fear that they will provoke other persons to commit a breach of the peace?), or what is to be done if the intention of the persons so assembled cannot be proved or is not going to be proved (to objectively assess whether it is likely to cause other people reasonably to fear), none of these is crucial.

70. In these circumstances, rule 5 of the Indictment Rules (Cap 221C) aptly applies.  It provides that:

“Where an offence created by or under an Ordinance or a national law applying in Hong Kong states the offence to be the doing or omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of any different intention or states any part of the offence in the alternative, the acts, omissions, capacities or intentions or other matters stated in the alternative in the Ordinance or national law may be stated in the alternative in an indictment charging the offence.”

In the Hong Kong case of The Queen v Clement Vivian Couto MA 1046/1988 this rule was cited to support the finding that the phrase “endanger or cause to be endangered” was not duplicitous.  This outcome was totally different from that of Stanley Patrick John.

71. In conclusion, as it was pointed put in paragraph D11.55 of Blackstone’s Criminal Practice 2014[32]:

“… decisions on whether an enactment creates one or several offences have consistently turned on whether, in defining the conduct prohibited, the enactment refers to a single act (or omission) or to several. If one act is referred to, the enactment will almost certainly be construed as creating one offence, even if the mens rea or other elements thereof are defined in the alternative; if more than one, it will be held that the enactment creates a separate offence for each separate act.”

I consider that the first situation mentioned in the discussion suits charge (1) precisely.  At the trial the defence had never complained that they did not know what the specific allegations were.

D2 – ground (2)

72. It is contended in ground (2) that the magistrate erroneously found that the police cordon set up outside Bank of China Tower was lawful.

Content

73. Mr Pun submitted that the lawfulness of the police cordon had much bearing on the question of whether the conduct of the appellant was disorderly and whether he would commit a breach of the peace (the elements of charge (1) of unlawful assembly).

74. Mr Pun prayed in aid the following paragraphs extracted from the judgment of Bokhary JA (as he then was) in To Kwan Hang and submitted that the statutory power of the police, when it was used in relation to processions and assemblies, was necessarily confined to regulating them only to the extent necessary to keep them peaceful and safe, and that the same power could never be used to obstruct a procession or assembly which was in progress peacefully[33].

“It is not suggested that the police can never lawfully establish any cordon......

The police force in Hong Kong is a creature of statute. Its duties are set out in s 10 of its statute, the Police Force Ordinance. The opening words of the section are: ‘The duties of the police force shall be to take lawful measures for…’. Then follows a long list of things set out in 18 items designated (a) to (r).

Before coming to any of those terms, two things should be said about those opening words. First, the duty to take any lawful measure must by necessary implication import the power to take such measure. The police force is not there to have its duty. It is there to do its duty. Secondly, the meaning of the word ‘lawful’ includes being consistent with the Bill of Rights.

While police officers are required to exercise judgment, it is necessary that the powers within the ambit of which they are to exercise that judgment be carefully defined. What is not permissible under our constitutional set-up is that police powers take on the character of what Harlan J of the United States Supreme Court described in his concurring judgment in Gregory v Chicago 394 US 111, 129 as an ‘ambulatory sweep’……

Three items of s 10 are relevant to the lawfulness or otherwise of [a cordon]. They are:

(a) preserving the public peace;

…

(c) preventing injury to life and property;

…[and]

(e) regulating processions and assemblies in public places or places of public resort;

…

All of that is to be read subject to art 17 of the Bill of Rights [viz the right of peaceful assembly]……

The right is of peaceful assembly. No one can begin to suggest that item (a) or (c) of s 10 are Bill inconsistent. A right of peaceful assembly is not infringed by the police doing their duty to preserve the public peace and to prevent injury to life and property. On the contrary, the right would be put in peril if the police were to refrain from doing that duty.

Item (e) is also Bill consistent.  Section 3(1) of the Hong Kong Bill of Rights Ordinance (Cap 383) provides that all pre-existing legislation which admits a Bill consistent construction shall be given such a construction.  Item (e) certainly admits of such a construction.  Indeed, it admits of none other.  By its nature and context, the duty and power in item (e) to regulate processions and assemblies is necessarily confined to regulating them only to the extent necessary to keep them peaceful and reasonably safe.”

75. Mr Pun further cited the House of Lords case of Regina (Laporte) v Chief Constable of Gloucestershire Constabulary (HL(E)) [2007] 2 AC 105 to support his argument that under the common law, the police have the power to arrest or take other action against any person only when there is a reasonable apprehension of an imminent breach of the peace, and that to exercise such police power when there is no such apprehension would be an interference with the freedom of assembly of the person concerned (for example, if that person is on his way to a protest demonstration).

76. Mr Pun was of the view that, since the procession in question proceeded in a peaceful manner all along and were moving along the route taken by the July 1 Protest March, the police had no legitimate reason to set up a police cordon outside Bank of China.  He went on and argued that if the police unlawfully infringed upon the freedom enjoyed by a citizen (for example, conducting an unlawful search), the citizen had the right to resist by using reasonable force (McBean v Parker (1983) 147 JP 205; Collins v Wilcock (1984) 79 Cr App R 229), and that this citizen, just as the protesters who chanted numbers and marched towards the police line in the present case, should not be viewed as having committed a breach of the peace.

Discussion

77. Whether this ground can be established is to a large extent dependent on the nature of the procession in question: whether it was a part of the July 1 Protest March or an unauthorized assembly.  If it was the latter, the police cordon was lawful and the issue of resisting by using reasonable force (even if applicable) does not arise.  This issue is actually the main issue raised in D2’s ground of appeal (9). My conclusion can be found in paragraphs 88 and 89 below.

D2 – ground (9)

78. Ground (9) is the argument that the magistrate erred in finding that the procession in question was not part of the July 1 Protest March.

Content

79. Mr Shek, another counsel acting for D2, submitted that the procession in question had never deviated from the route taken by the July 1 Protest March, and that this point was not disputed by the prosecution.  He complained that there were at least three errors in the findings against the defence made by the magistrate (see the extract in paragraph 46 above): Firstly, he relied on the fact that the time when the procession in question started to march was later than the time when the rearmost part of the July 1 Protest March procession passed the street station.  Secondly, he relied on the fact that the front part and the rear part of the procession in question were taken care of by its own workers.  Thirdly, he considered that there had to be a common starting point and a common finishing point for the various groups of participants in the July 1 Protest March.

80. The magistrate was alleged to have committed errors because even according to the evidence of PW12 (Senior Inspector Chan Sin-nga), although the last batch of the participants in the July 1 Protest March set off from the street station at 9:26, it did not follow that the procession which moved off at 9:56 was definitely not part of the July 1 Protest March.  This piece of evidence was recorded by the magistrate himself[34].  He could not make his decision on the basis of a difference of just 30 minutes.  Furthermore, D1 had already explained in the course of his evidence why People Power was the last group to leave[35].  Secondly, the fact that various kinds of organizations took part in the July 1 Protest March was common knowledge and was undisputed in the present case.  It was a usual practice that each organization had its own pickets to maintain order.  It was unsound for the magistrate to take this into consideration.  Thirdly, numerous people took part in the July 1 Protest March.  Even according to the police estimate, there were 50,000 people.  To reach the finishing point after completing the whole route was time-consuming and would meet with considerable difficulties, therefore many participants would join or leave in midstream.  To require all participants in the Protest March to have a common starting point and a common finishing point was an ossified way of thinking without regard to the reality.

81. In conclusion, Mr Shek submitted that the only one thing which D2, as the “chief commander”, had publicly announced was that they would go the Government Headquarters to support the procession organized by the Civil Human Rights Front[36].  Subsequently, the procession in question, which set off a bit later than the rearmost part of the main procession, did not deviate from the designated route of the July 1 Protest March.  Therefore, the magistrate should not have made the finding, which purportedly met the criminal standard, that this particular procession was a different procession just because other leaders claimed that they were going to the Government House.

82. It was accepted that in the same speech in which D2 announced that they would go to the Government Headquarters, he did say that afterwards the people’s power would be demonstrated. Perhaps that could be understood to be a reference to protest activities other than the July 1 Protest March.  However, up to the moment when they reached Bank of China Tower the procession in question still remained on the original route, so they should be regarded as part of the July 1 Protest March.  As for the fact that D1 called on the people to march to the Government House, it was not sure whether he had obtained D2’s agreement or whether it was a joint decision made by [him and] D2.  Since D2 was the “chief commander”, it was perfectly normal that ultimately the procession marched to Central according to what he intended to do.  The magistrate’s finding that it was possible that D5 only knew that they were going to the Government Headquarters but did not know that the procession was an unlawful assembly was consistent with this conclusion.

Discussion

83. D1 is the only person who could be regarded as a leader of the procession in question and who had given evidence.  I will start with his evidence.  The magistrate did not believe him.  He had three main reasons which were relevant to the issue I am dealing with[37]:

“1. Purpose of speech at street station and destination of procession

(i) At the street station [D1] repeatedly called on the people to march to the Government House together.

(ii) In his evidence he explained that the Government House was a symbol of power. What he said to the people about going to the Government House was only to whip up the emotions and to create an atmosphere among the protesters. In fact he intended to lead the marchers to the finishing point of the July 1 Protest March (ie the Government Headquarters).

(iii) The court found that this explanation given by [D1] could not possibly be true and was definitely a lie. My reasons are set out below.

(iv) First of all, [D1] repeatedly said that if they could not march to the Government House, they would block up Garden Road or Queen’s Road till the following day, which was a holiday, but he did not say that if they could not go to the Government House, they would march to the Government Headquarters instead and then call it a day.

(v) When at last the procession started to move away from the street station, the leaders of the procession, who were at the front part of the procession, announced through loudhailers that they were going to march to the Government House. [D1] was also at the front part of the procession leading the marchers.

(vi) In the course of the procession, [D1] said that the police had set up rows and rows of mills barriers on Garden Road. It was only subsequent to that did he mention for the first time that they were going to Cheung Kong Center.

(vii) The court considered that to go uphill along Garden Road was the route to the Government House, while to march along Queen’s Road and pass Cheung Kong Center was the traditional route which was taken as a matter of course by the July 1 Protest March.

(viii) If [D1] intended to lead the marchers to the Government Headquarters, he had no need at all to consider whether Garden Road was cordoned off by the police, nor did he need to specifically say that they were going to Cheung Kong Center, and all he needed to do was to lead the procession to move along Queen’s Road.

(ix) When the procession was underway, all the leaders, who were at the front part of the procession where [D1] was present, just said they were going to the Government House; they did not say they were going to the Government Headquarters.

2. Asked children and elderly people to leave the procession

(x) When [D1] was at the street station, he, for the sake of safety, asked children and elderly people to leave. Just before the procession set off, he inspected the scene to make sure that there were no children or elderly people in the procession.

(xi) In his evidence, [D1] explained that when the procession started to move, there were a huge lot of people, so he asked children and elderly people to leave.

(xii) The court found that this explanation given by [D1] could not possibly be true and was definitely a lie. My reasons are set out below.

(xiii) Both when [D1] was addressing the people at the street station and when he was giving evidence in court under oath, he emphasized that at the material time one of the purposes of the procession was to urge the citizens to show their power by their sheer number.

(xiv) In the court’s view, if at all material times [D1]’s intention was to take part in the entirely lawful July 1 Protest March, he would have welcomed people of whatever age to participate so as to attain the purpose of showing power by the number of people. There would have been no reasonable cause to worry about the safety of children or elderly people, and it would have been impossible that any children or elderly people would be asked to leave on the ground that there were too many people.

(xv) In fact there was one point which had never been disputed, ie there was considerable flexibility in the police’s handling of matters concerning the number of people in the procession.

(xvi) On the other hand, the video recordings showed that [D1] gave clear instructions that positions at the front of the procession should be occupied by men who were young and strong. He also said that he asked children and elderly people to leave out of his concern for their safety. Such evidence gave strong support to the court’s finding that D1’s evidence that he asked children and elderly people to leave because there were a huge lot of people was definitely a lie.

3. Did the procession proceed with the cooperation of the police

(xvii) On the one hand, [D1]’s evidence was that the procession in which he took part was lawful and that he intended to go to the Government Headquarters via the traditional route taken by the July 1 Protest March, but on the other hand he said it was necessary to negotiate with the police.

(xviii) The court had the following three questions: (1) Why did he need police cooperation? (2) What was the negotiation about? (3) What was the result?

(xix) If [D1] had indeed intended to take part in the July 1 Protest March only, then around 10 o’clock that night what he needed to do would have been just to lead the procession to the Government Headquarters by marching along the July 1 Protest March route. It would not have been necessary for him to negotiate with the police at all. [D1] fully understood that there was much flexibility in determining when the time of the conclusion of the procession was and besides, the police would not rashly put an end to the July 1 Protest March.

(xx) The court considered that there was only one reason for holding any negotiation. The reason must have been that the assembly at the street station and the subsequent procession were clearly not a part of the July 1 Protest March.

(xxi) The video recordings showed that the purpose of the assembly at the street station was to march to the Government House. If the protesters could not go to the Government House, they would forcibly occupy the streets. The court found that the negotiation between the two sides was about whether they could go to the Government House by way of Garden Road. This finding had strong support from what [D1] said at the street station. [D1] said that if they could not start the march, he would ‘talk with them’.

(xxii) The court considered that it was undeniable that the two sides had negotiated at the street station (This was admitted by [D1] in his submission). However, the court found that no consensus was reached after the negotiation and that the marchers, led by People Power, began to march without obtaining police approval. This finding was strongly supported by the following factors.

(xxiii) Soon after the march started [D1] said that be did not see any policemen at the scene. He also said that he would encounter them not long after he walked forward.

(xxiv) The court found that this statement of [D1] correctly reflected the situation at that time. All along he knew that the police was video recording what was going on at the front part of the procession. If at that time on all sides of him there were policemen and police vehicles but he said he did not see any policemen at the scene, the police officer making the video recording could simply collect and retain irrefutable evidence that he was lying by making a video recording of the places around the front part of the procession.

(xxv) Therefore, the court found that [D1]’s evidence that once the marchers set off from the street station, on all sides of him there were policemen and police vehicles was definitely inaccurate and untrue evidence.

(xxvi) When [D1] started to march, he did not see any policemen at the front part of the procession assisting them. The court considered that the only reason was that the negotiation between People Power and the police held at the street station had failed.

(xxvii) [D1] gave evidence that throughout the march he had kept on negotiating with a certain police officer who was responsible for community relations. This was not supported by the video recordings (The video recordings clearly recorded that [D1] said he did not see any policemen at the scene), so it too was certainly a lie.

(xxviii)  He also committed serious misrepresentation by withholding from the court the fact that the negotiation between People Power and the police about marching to the Government House by way of Garden Road had failed.  In this connection, the court bore in mind that the oath which [D1] took for giving evidence in court stipulated that he had to give evidence of the whole truth.”

84. In my judgment, the magistrate’s analysis was correct.  He cogently explicated why he concluded that D1 did not regard the Government Headquarters as his target.  More importantly, in his analysis he recorded that D1 had said he “cooperated” with the police.  This piece of evidence, plus what D1 did subsequently (led the procession to march forward, played the wave, when approaching Garden Road he said there were mills barriers) and his conduct outside Bank of China (stood in front of the procession and talked with the police) showed the influence he exerted and the role he played on that day.  In these circumstances, the significance of D2’s role as the “chief commander” (actually this was assigned by D1) was much limited.

85. It is true that D2 told the people that they had to go to the Government Headquarters first, but the time then was 6:20, which was one hour before D1, for the first time, incited the people to march to the Government House and to block up Garden Road.  The evidence (whether it was exhibit P19b or the video recording transcript provided by the defence) showed that subsequently D2 did not say anything publicly regarding the destination of the procession any more.  On the contrary, when the procession was about to set off (9:47), it was recorded in the video recordings that D3 urged the people to “march to the Government House” and there were male voices shouted in support.  After that, D1 said D2, Wong Yeung-tat [transliteration of 黃洋達] and other people were at the front part of the procession[38].  In this context (D2 had never claimed that he was not present at the scene at the material time), it is hard to argue that this person (D2), who from the very beginning had vowed to demonstrate their power, disagreed to march directly to the Government House (at that moment).  Since D2 did not give evidence, the court could not obtain assistance from any evidence emanated from him.

86. Apart from his disbelief of D1, the magistrate put forward other reasons to explain why he found that the procession in question was not part of the July 1 Protest March, which were already set out a while ago in paragraph 46 above.  I consider that the magistrate’s analysis is correct and cannot be faulted.  He remarked that the processioninvolved in this case left the street station later than the main procession, ie the July 1 Protest March procession, that they had their own workers for the front part and the rear part, and that their finishing point was not the Government Headquarters.  All these were perfectly relevant considerations, but the crucial point is that his analysis did not stop there.  He further pointed out that the July 1 Protest March did not go after any specific result and that it would conclude within a reasonable length of time, but that the leader of the procession involved in this case made it clear that they would go on throughout the night, and that if they could not attain their purpose they would not easily give up.

87. Once the reasoning of the magistrate is correctly understood, the frivolousness of counsel’s criticisms is instantly revealed; for example, the magistrate’s analysis had nothing to do with the fact that there were many participants and some people did not make it to the destination.  He recorded evidence given by PW12 which seemed to be advantageous to the defence.  His purpose of doing so was to show that her attitude was fair and sincere[39].  Her answer was entirely logical.  As to why the magistrate found that D5 was not guilty of the convening offence and the knowingly taking part in an unauthorized assembly offence, as a matter of fact he did not provide much explanation.  The relevant part of the oral judgment was not more than 10 lines.  Its content has been recounted by me in paragraph 18 above[40].

88. For the above reasons, I find that the judgment of the magistrate was correct.  The procession in question was not part of the July 1 Protest March.  This procession was convened on the route taken by the July 1 Protest March.  Subsequently, because Garden Road was cordoned off, the participants had to stay on the same route.  None of these events could change the fact that it was not part of the July 1 Protest March.  The magistrate grasped the essence of the matter with a single comment, namely that the protesters indeed did not force their way to the Government House, but they did not regard the Government Headquarters as their finishing point either.  D1 publicly announced that he would take the procession to Cheung Kong Center.  He also publicly announced that no time had been fixed to be the time at which the procession was to come to an end.

89. The magistrate found that the police line outside Bank of China was lawful.  This finding was also correct.  PW8 (Chief Inspector Choi Tung-choi) suspected that the procession in question was an unauthorized assembly[41].  The police were empowered to prevent the holding of such a procession by virtue of section 17(1)(b) of the Public Order Ordinacne:

“17. Police powers over meetings, processions and gatherings

(1) Any police officer may prevent the holding of, stop or disperse—

(a) ……

(b) any public procession which takes place in contravention of section 13 or in regard to which any requirement, or any condition imposed, under section 15 is being or has been contravened.

(2)  ……”

90. In view of the above findings, I do not need to deal with the question of a citizen’s right to resist by using reasonable force (see paragraph 76 above).  However, I would like to express my opinion on this issue.  In the cases cited by the counsel, the police officers, on their own initiative, came into contact with the bodies of the citizens concerned, and their conduct technically constituted a battery or an assault under the law.  It is difficult to compare such conduct with the simple setting up of a police cordon.  Conversely, in To Kwan Hang, Bokhary JA said the fact that a police cordon was unlawful did not necessarily mean that storming such a cordon could be done with legal impunity[42]:

“… The fact that I have entertained the question of whether or not the cordon in this case was lawful should not be taken as implying that I am deciding that storming an unlawful police cordon is something which can be done with legal impunity.”

Based on the same reasoning, Lam JA had this to say in Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556:

“26 Thus, even if the Court were to come to the conclusion that the cordon was not lawful, it does not mean that the conduct of the protesters in charging it was not disorderly or provocative. Public order and public place 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.”

D2 – ground (12)

91. Ground (12) is closely related to ground (9) and it is appropriate to deal with it now.  It alleges that the magistrate erred in convicting D2 of knowingly taking part in an unauthorized assembly (charge (7)).

Content

92. The counsel accepted that the success or otherwise of ground (9) had much bearing on the success or otherwise of this ground.

Discussion

93. I have confirmed that the procession in question was an unauthorized assembly.  As to whether D2 knowingly took part in it, I will again start with D1’s evidence.  As mentioned in paragraph 83 above, D1 admitted that he “cooperated” with the police in respect of matters concerning the procession.  The magistrate found in the result that if D1 had really believed that he was protected by the notice of no objection issued in relation to the July 1 Protest March, he would not have negotiated with the police at the scene.  He found that the outcome of the negotiation was that D1 was not allowed to go to the Government House.  For details, please refer to the third reason for the magistrate’s disbelieving D1 (heading: Did the procession proceed with the cooperation of the police) in paragraph 83 above.  Therefore, D1 himself not only convened, but also knowingly participated in an unauthorized assembly.  These two convictions were correct.

94. As for D2, according to the transcript of the video recordings, starting from 7:29, the people who made speeches publicly at the street station repeatedly said that they would observe how the police responded.  At 7:38, a male voice: “… For the time being we don’t march.  Let’s talk with them first.”  At 7:40, D1: “… Here, we have to see how they react.  Well, we’ll talk with them…”  In the video footage which the defence asked to be included [as exhibit], it was recorded that at 9:42, D1 gave this instruction[43]: “When we are obstructed by the police, we sit down and send the big brothers to talk with them, to fight a seesaw battle with them.”  When it was close to the time to start marching (9:48), D3 said: “The police themselves are afraid too!  Now, they are deeply worried!  It’s something out of the blue.  They did not expect that we have so many supporters and we can do this job in such a systematic and well-organized manner…  Bald Eagle Hung has not yet made any final decision about how to handle this matter.  Just now a whole hour was given to them.”  The contents of these utterances are consistent with D1’s evidence.  It is impossible that D2, as one of the leaders, did not know that they and the police had come to a deadlock over matters concerning the route to be taken and that finally the negotiation broke down.  The reason is that when the time to set off was approaching, among the leaders some anticipated that they would meet with police intervention. The following are examples: 9:48, D1; 9:49, D3; 10:20, D1.  Had they really been thinking that they were still taking part in the July 1 Protest March, they would not have such thoughts in their minds.

95. Judging from the evidence as a whole, D2, who was at the forefront of the procession, could not possibly be ignorant of the fact that he was present in an unauthorized procession.  The magistrate correctly convicted him of charge (7) of knowingly taking part in an unauthorized assembly.  What I am concerned about is whether he had convened an unauthorized assembly.  As I mentioned before, the time when D2 asked those who were young and strong to stay was one hour before D1 made it clear that they were going to the Government House via Garden Road.  At that time he only indicated that they would march to the Government Headquarters first.  Several hours later, he clearly changed his mind.  He accepted the mainstream opinion and intended to directly march to the Government House.  However, the magistrate did not analyse whether such conduct constituted “convening”.  I have some doubts myself.  D2’s conviction of charge (3) is unsafe[44].

D2 – grounds (3) and (4)

96. It is contended in ground (3) that the magistrate erred in finding that the rehearsal on the road was likely to cause some people reasonably to fear that the protesters would rush the police line.  Ground (4) is the complaint that the magistrate erroneously found that the protesters’ rehearsal on the road alone contained all the elements of unlawful assembly.

Content

97. Counsel agreed that ground (3) and ground (4) could be dealt with together.  Both grounds rest on the assumption that the police cordon outside Bank of China Tower was lawful and both concern charge (1) only.

98. In order to facilitate discussion, I shall first set out the findings made by the magistrate in respect of this issue (paragraph 322(vi) to (xiii) of the Statement of Findings)[45]:

“(vi) Disorderly conduct does not necessarily involve an element of violence (see Wong Ying Yu, Chow Nok Hang, Cheng Siu Wing, Chamber & Edwards, and Leung Kwok Wah). Paragraph 32 of Leung Kwok Wah is quoted below:

“These cases show that in considering whether a person conducts himself in a disorderly manner for the purpose of the POO (whether in the context of s. 17B or s.18), the fact that he is exercising his freedom of assembly should not call for special or exceptional consideration.”

(vii) D1 and D2 arranged the protesters so that several rows of protesters were formed. On the road and amidst the chanting of numbers “One, two, one, two”, they rehearsed how to march towards the defence line set up by the police. The place where the rehearsal took place was right in front of the police line.

(viii) When the rehearsal took place, the procession involved in this casewas already an unlawful and unauthorized assembly. The court found that the common purpose of the rehearsal was to force through the police line and to continue to hold the unlawful assembly. The court considered that such purpose was unlawful. In this connection, the case of Au Kwok Kuen can serve as reference.

(ix) The court further found that storming the police line was not only disorderly conduct, but was also conduct which would breach the peace, because storming the police line could result in the marchers or the policemen sustaining bodily injuries.

(x) The court considered that the remarks of Mr Justice Bokhary could precisely be an answer to the matter raised in paragraph 49 of Chow Nok Hang, namely:

‘It can be seen that the Court of Appeal had taken into account the reaction of the persons who were attacked or likely to be attacked, or whose property was damaged or likely to be damaged in their presence.’  [The sentence ‘It can be seen that the Court of Appeal … in their presence.’ is just a literal translation of the Chinese characters可見上訴法庭有將…考慮在內 and is not extracted from any judgment.]

  Among the facts of the present case, the court had to take into account the fact that the police would not abandon their cordon.

(xi)  In the present case, in between the marchers and the police there were quite a few reporters who were carrying photographic or video recording equipment in their hands.  The video recordings showed that when the storming took place, a policeman, who was on an aluminium ladder, fell down (fortunately he was not injured).  The court found that the above-mentioned rehearsal was likely to cause citizens (including reporters) present at the scene, who were firm minded and not timid, to reasonably fear (or apprehend (see Leung Kwok Wah)) that these people who took part in the rehearsal would later storm the police line.  In this regard, Bokhary JA in To Kwan Hang said:

“Once the demonstrators began their rush at the cordon, no reasonable person could entertain any real expectation either that the demonstrators would stop in mid-rush or that the police would abandon their cordon, so once the rush began, a violent clash and struggle between the demonstrators and the police is what any reasonable person would appreciate.”

Therefore, the rehearsal in this case met the requirements of the element “so assembled” in section 18 of the Ordinance.

(xii)  In the night of the incident, the actions taken by the police were entirely appropriate, reasonable and lawful.  In respect of this point, the court had sufficiently considered the criteria referred to in Yeung May Wan.  The following is paragraph 58 of Leung Kwok Wah:

“Adopting a similar approach as in Yeung May Wan v HKSAR, in the assessment of whether the conduct of the defendants would cause a reasonable person to fear that they would commit a breach of the peace, one must not apply that objective test in a manner that would unduly impair the ability to exercise the constitutional rights of peaceful assembly and demonstration. However, when that line has been crossed, s. 18 has to be applied to stop a deterioration of an often highly emotionally charged assembly into a serious disruption of law and order.”

In the present case, the court considered that the application of the objective test does not impair the rights of peaceful assembly and demonstration.

(xiii)  The court found that when the marchers rehearsed on the road how to march to the police line, all the elements of the unlawful assembly offence under section 18 of the Ordinance were present.  As far as [D1] and [D2] are concerned, the prosecution successfully proved beyond reasonable doubt all the elements of charge (1).  In making this finding, the court particularly had regard to the views expressed in paragraphs 38 and 40 of Leung Kwok Wah, ie section 18 of the Ordinance is a preventive measure.  Actually, the question of whether subsequent to the rehearsal any storming of the police cordon did take place was only relevant to the assessment of the seriousness of this case.”

99. Counsel criticized the magistrate for committing the error of confusing the rehearsal with the protesters’ pressing their bodies against and pushing the police cordon which subsequently occurred. Counsel was of the view that before the pressing and pushing, the citizens at the scene (including the reporters) would not reasonably fear that the protesters would storm the police line, ie breach the peace.  His reasons were: Firstly, the rehearsal was conducted in a slow pace and in a restrained manner.  The people which formed the front row linked their arms with the arms of those on either side in case they would imprudently use their hands to strike.  D1 repeatedly told the people that they may not have any violent bodily contact with the police.  Secondly, from the moment when he was at the street station, D1 again and again said that they were staging a peaceful demonstration that day, and he urged everyone not to use force.  He did the same outside the Bank of China.

100. Counsel submitted that the magistrate’s finding that the purpose of the rehearsal was to force through the police line was not supported by the evidence.  It was recorded in the video recordings that someone shouted through a loudhailer: “If you don’t let us pass, we’ll break through it group by group”, but that person received no attention of the procession.  The so-called pressing their bodies against and pushing the police cordon was just the effect produced by the fact that two protesters, who were on the right side of D2 and were wearing masks, pressed forward and the several rows of protesters behind them continued to walk forward.  However, the conduct of these two protesters who were wearing masks and the several rows of protesters behind them had nothing to do with the rehearsal.

101. In order to support his contention, counsel referred me to the fact that at different times D1 and other people had appealed to the protesters to proceed in a peaceful manner.  Such evidence was extracted from exhibit P19b and the transcript produced by the defence (exhibit D2); for example, in front of the street station at Wanchai:

“Male voice: ‘Each of us has a telephone. Almost each one has a mobile phone; each one has a mobile phone. We don’t need to have any bodily bumping or knocking with the police. We should never do that. If anything happens, if there is any provocation, photograph or video-record it. If one person has trouble, everyone will support him. If one person is harassed, let us focus a dozen cameras on him. Is it alright?’ (7:51)

D1: ‘The demonstration we hold today can serve as the best example. We are peaceful, rational and non-violent, though we can use foul language. In this peaceful demonstration, we will never have any bodily bumping or knocking with the police, unless they bumped against us. In a moment, we’ll go to Garden Road. If we can’t go there, let everyone of us sit on the road. Then we may choose some people who are as large-built as Dai Gao and let them stand in the first two rows. If the cops attempt to use force, at least we have some people to hold on for a while, right?’ (9:42 to 9:45)

D1:   ‘Ladies and gentlemen, in every mass movement it is likely that violence will be involved, but before we reach the stage of making sacrifices, we should never lightly talk about making sacrifices.  We will use some soft resistance tactics, which can also make them yield.  As long as we are many in number and we act in unity, everything will be alright.  If any of you can’t control your temper and have violent bodily contact with them, then they can use force, so we have to use a soft kind of resistance tactic.  We can ‘boo’ them, right?  We won’t have any violent bodily contact with them.  Just look at the demonstrations held by the post 80s and the post 90s nowadays.  Very often they sustained physical injuries, because certainly you’re no match for the cops when it comes to bumping.  If you’re few in number, they will use pepper spray and spray it on your face.  Here, there are several thousand people.  They can’t do that.  Therefore, we must be hand in hand.  Let us keep close to each other.  We’ll walk slowly.  When we are obstructed by the police, we sit down and send our big brothers to talk with them, to fight a seesaw battle with them.  Today, let us play with them until daybreak.’ (9:42 to 9:45)”

102. Next, in the vicinity of Pacific Place, Queenway:

“Leader of procession: ‘… Everyone at the back, no violent bodily contact between you and the police. Keep an eye on the friends near you and in the middle from time to time. … Pass this message around. Sit down, sit down.’

…

Leader of procession: ‘Hey, those at the back, everybody listen; everybody listen. There are so many of us here. Even if they encircle the front part or the rear part, they can do nothing to us. We must keep cool and calm. Don’t fall into their trap. No matter how they provoke you, my friends at the back remember, don’t engage in any bodily bumping or knocking with the police, alright?’

People’s response: ‘Alright!’

Someone shouted: ‘Keep cool!’

Leader of procession: ‘We must listen to the directions given by the leaders in front, alright?’

People’s response: ‘Alright!’

Someone shouted: ‘Keep cool!’

Leader of procession: ‘Would our brothers pass this message to those at the back, alright?’

People’s response: ‘Alright!’

Someone shouted: ‘Keep cool! Keep cool!’

(11:02 to 11:03)”

103. Counsel submitted that even when D1 was outside Bank of China Tower, he still maintained this attitude firmly; for example, at 11:31 when the procession in question proceeded to a spot very close to the police line, D1 not only stopped the procession, he also said publicly, “We will not have any violent bodily contact with the police.”  The procession moved forward a few paces and D1 stretched out his arms and said, “Alright!”

Discussion

104. The magistrate did not make the finding that “the common purpose [of the rehearsal] was to force through the police cordon” without providing any explanation.  In the same sentence he pointed out that the protesters were to “continue to hold the unlawful assembly” (paragraph 322 (viii) of the Statement of Findings).  This view was not unreasonable.  I put aside the question whether their activities were unlawful.  The situation then was that policemen were stationed on Garden Road and D1 made it clear that he would take the procession to Cheung Kong Center, but Cheung Kong Center was behind Bank of China Tower; therefore, when the protest procession was arranged in such a way that the strong and sturdy ones were at the forefront, who marched forward with their arms locked and chanting numbers, what else could their purpose be apart from marching beyond the police cordon unless D1 gave other instructions to those people (for example, to sit down and wait and have further negotiation with the police)?  The protesters of the front row, except D2, wore Guy Fawkes masks or covered their faces [by other means].  I consider that the conclusion which the magistrate reached was correct.  Exhibit P19b also shows that at 11:30 a male voice shouted, “Give way!” in front of the police cordon.  At 11:31, the protesters shouted “Clear the way! Clear the way!”

105. The comments I made above are about the procession as a whole.  As for D1 himself, he gave his own explanation in his evidence, but it was rejected by the magistrate.[46] :

“4. Police set up defence line

(xxix) [D1] gave evidence that at no time he was aware that the police had set up a police line on Queen’s Road, and that he only knew that there were a lot of policemen at the scene.

(xxx) The prosecution evidence showed that the police set up the first defence line as early as 10:30 or so.

(xxxi) The video recordings showed that on the night in question [D1] mentioned that there were scouts who were sent to places ahead of the procession to collect intelligence. In his evidence, he reiterated this point.

(xxxii) The court considered that the police defence line was very conspicuous and was not difficult to notice at all, and that [D1]’s scouts had no reason to withhold this piece of information from him.

(xxxiii) The court found that [D1]’s evidence that he did not know that the police had set up the police line was illogical and this evidence was rejected.

5.  Protesters rehearsed arm in arm

(xxxiv)  [D1] gave evidence that the purpose of the protesters rehearsing arm in arm was to keep their formation and maintain order.

(xxxv)  The court had seen how the protesters rehearsed as they were chanting numbers.  The court considered that before the rehearsal, the protesters had all along kept the usual marching formation and there was no sign that they were behaving in a lax and undisciplined way.

(xxxvi)  Furthermore, the rehearsal took place not far away in front of the police defence line, and they did not stop until they were less than 10 feet from the defence line.  [D1] and [D2] even tried to make the reporters back away.  [D1] went forward and tried to talk with the policemen who formed the defence line.

(xxxvii)  Based on the evidence as a whole, the court found that the protesters had no need at all to rehearse at the spot in front of and not far away from the police line with their arms locked and chanting numbers just for the sake of keeping the formation and maintaining order.  The court considered that this argument was totally unreasonable and rejected [D1]’s evidence concerning this area.

6.  D1 intended to tell protesters to stop at what time

(xxxviii)  [D1]’sevidence was that he and [D2] had a tacit understanding that when the arm in arm protesters reached a position close enough to the police line, [D1] would tell them to stop and let the reporters photograph or video-record the confrontation between the protesters and the police.

(xxxix)  However, under cross-examination by the prosecuting counsel, [D1] was unable to explain clearly ‘how close’ the distance between the protesters and the defence line had to be before he would tell them to stop.

(xl)   The court considered that if [D1]had really intended beforehand to tell the protesters to stop so as to let the reporters photograph or video-record the confrontation between they and the police, he would have been able to answer the prosecution’s question in a straight forward manner.

(xli)   Furthermore, when the prosecuting counsel pressed on and asked [D1] whether he had told other protesters about his idea, it was patently clear that he tried to dodge the question.

(xlii)  The court considered that the only reason why [D1] failed to answer this simple and direct question from the prosecution was that his statement that he would let the reporters photograph and video-record the confrontation was nothing but an exculpatory and untrue explanation he made up after the event.

7.  Disorder

(xliii)  [D1]stated that some people pressed their bodies against and pushed the police line because the reporters on both sides voluntarily or involuntarily moved forward to photograph or video-record what was happening, while the policemen were doing a forward pushing action, with the result that there was bodily contact between the police and the protesters and disorder ensued. He even complained that he was pushed by the police so much so that he squatted down.

(xliv)  [D1]’s story that the policemen were doing a forward pushing action, thus resulting in the disorder was not supported by the video recordings.  The video recordings clearly showed that the policemen just remained standing at where they were, doing their best to keep the police line intact.  The only reason why they had to use all their strength to push forward was that the protesters were pressing their bodies against and pushing the police line.  If they had not pushed forward, the police line would have fallen apart immediately.  The court found that [D1]’s explanation that the disorder was caused by the police pushing forward could not possibly be the truth, and [D1] himself should be perfectly clear about that.”

106. D1 asserted time after time that he was staging a peaceful demonstration.  In respect of this, the magistrate also made findings against the defence (paragraph 322 (xiv) and (xv) of the Statement of Findings)[47]:

“(xiv) The defence asserted that their procession was a peaceful and rational one, and that they had never anticipated (or expected) that incidents of rushing the police line or of violence would occur. … However, the court noticed that when [D1] was giving evidence, he clearly said that at the material time all along he had been thinking of ‘what should be done when the worst thing happened’. …….

(xv)   The court found beyond reasonable doubt that [D1] was not an honest or reliable witness.  The court considered that what he said when he called on the people to stage a procession which was peaceful and rational was inconsistent with what he did later, ie he instructed a group of participants of the procession to link their arms, chant numbers and in this way march towards the police line. The court found that [D1], knowing that the police were video-recording in what manner the procession was proceeding, made such oral appeal, and that his purpose was to confuse people’s judgment.”

107. In my judgment, the magistrate’s analysis was correct.  He had the advantage of hearing and observing D1 while he was giving evidence, I cannot lightly reject his conclusion.  D2 did not give evidence.  On the one hand he could not support D1’s evidence that the two of them had a tacit understanding that the procession would be told to stop; on the other hand he produced no evidence for the court to consider anything specifically related to him.  The court could only draw inferences on the basis of the evidence as a whole.  To sum up, it may be true that D1 and D2 did not want violent clashes with the police, but clearly they wanted to rely on the number of their people, their formation and the tactic of pressing towards the police cordon with their bodies (albeit slowly and gradually) to make the police cordon fall apart or fall back.  The assertion that they did not want to have violent bodily contact with the police is to be understood in this light.  This is the point which the magistrate tried to make.

108. The next question is: Was the conduct above, being conduct prior to coming into physical contact with the policemen in the police line, conduct in such manner that was “likely to cause any person reasonably to fear that the protesters would commit a breach of the peace”.  The magistrate’s answer was “yes”.  I consider that he was correct. In Leung Kwok Wah, Lam JA said:

“37. … the statue 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 of a 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, s. 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 conduct 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 rowdily as to become a breach of the peace.”

109. These two passages make it clear that to fulful the requirement, which is abbreviated to be “likely to cause”, the protesters’ rehearsal itself did not have to involve violence.  The complaint by counsel that the magistrate confused the disorder with the rehearsal which preceded it is unfounded.  I endorse the magistrate’s view. The people present at the scene would fear that the protesters would clash with the police.  This fear, concern or apprehension was reasonable and would not dissipate just because D1 and D2 claimed that they would not resort to violence.  When the protesters insisted on marching forward and the police did not move backward, violent bodily contact would be unavoidable.  It is as simple as that.

110. Now I have dealt with all the complaints raised by counsel under grounds of appeal (3) and (4).  Counsel rightly refrained from submitting that the rehearsal did not constitute disorderly conduct.  The conduct of a group of people chanting numbers, marching arm in arm towards a police cordon, ignoring the sign raised up and verbal warnings given by the police will not fail to meet the definition of disorderly conduct.

D2 – grounds (5) and (6)

111. It is alleged in ground (5) that the magistrate erred in finding that the doctrine of joint enterprise was applicable to unlawful assembly, or he erroneously convicted D2 of unlawful assembly by relying on the doctrine of joint enterprise.  Ground (6) is the argument that even if the doctrine of joint enterprise was applicable, the magistrate’s finding that since it was certainly within D2’s anticipation that other protesters would have violent bodily contact with the police D2 should be guilty of unlawful assembly was erroneous.

Content

112. These two grounds can also be dealt with together.  Both arise from another section of the magistrate’s verdict (paragraph 322 (xvi) to (xviii) of the Statement of Findings):

“(xvi) [D1] spread out his arms and said, ‘Alright!’ and [D2] suddenly stopped at the moment just before the storming took place. As a matter of fact both happened too late and could not constitute a reasonable and effective withdrawal from the illegal conduct of marching together to the police line with a view to marching beyond it.

(xvii) The court found that when [D1] and [D2] rehearsed the marchers amidst the chanting of numbers, they certainly anticipated that there could be violent bodily contact between the marchers and the police. In making this finding, the court particularly had regard to the fact that both [D1] and [D2]instructed tall and strong protesters to stand at the forefront positions of the procession, and that the arm in arm protesters in the first row (except [D2]) even put on masks.

(xviii)  Pursuant to the doctrine of joint enterprise, [D1] and [D2] should be criminally liable for the storming of the police line.”

Discussion

113. I am not inclined to quote the counsel’s submissions in detail.  I do not need to give my judgment on whether the charge of unlawful assembly can be made out according to the doctrine of joint enterprise.  What I am quite sure of is that the magistrate did not convict D2 (and D1) of charge (1) by relying on this doctrine.

114. The magistrate’s comments which are the subject of the criticism (322 (xvi) to (xviii) for short) cannot be interpreted out of context.  As to what kind of conduct would constitute unlawful assembly in the present case, he had made his findings earlier (322 (vi) to (xiii)) (see paragraph 98 above).  Of crucial importance is 322 (xiii):

(xiii)  The court found that when the marchers rehearsed on the road how to march to the police line, all the elements of the unlawful assembly offence under section 18 of the Ordinance were present.  As far as [D1] and [D2] are concerned, the prosecution successfully proved beyond reasonable doubt all the elements of charge (1).  In making this finding, the court particularly had regard to the views expressed in paragraphs 38 and 40 of Leung Kwok Wah, ie section 18 of the Ordinance is a preventive measure.  Actually, the question of whether subsequent to the rehearsal any storming of the police cordon did take place was only relevant to the assessment of the seriousness of this case.”

115. From 322 (xvi) to (xviii) the magistrate mentioned joint enterprise.  His intention was to point out that the two appellants could not reduce their culpability by relying on the excuse that a few protesters did not obey their directions and rashly pressed their way forward, with the result that there were people who actually pressed their bodies against and pushed the police cordon.  This is a matter concerning sentencing and has nothing to do with conviction.  My view is fully supported by paragraph 347 of the Reasons for Sentence:

“347. The two defendants organized the protesters and directed them to storm the police line. They themselves did not timely and effectively withdraw from the storming actions. They paid no regard to the personal safety of the protesters, the policemen, the reporters and even that of their own. This was for more serious than obstructing traffic by holding the procession.”

The reference to “did not … effectively withdraw” in this paragraph and the comment about “could not constitute ... effective withdrawal” in 322 (xvi) complement each other.

116. For the sake of caution, I specifically hold that on the basis of my decision regarding D2’s grounds of appeal (3) and (4), the convictions of the two appellants of charge (1) of unlawful assembly are safe.  This is certainly so in the case of D2, who was positioned in the front row of the procession; but even D1, who stood in front of the procession and assumed a commanding role, could not keep himself away from getting involved in this offence.  What they and the other defendants concerned (far more than three persons) did was disorderly conduct, which was absolutely sufficient to cause any citizen at the scene to apprehend the danger that there would be clashes between them and the police.  I shall conclude this section by quoting the following passage from the judgment of Andrew Cheung J in HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371:

“80. … It is plain from the circumstances that they were voluntary participants in charging the police cordon. What action or method they actually used to break through the cordon does not matter at all. Whether they used their arms and hands, the front parts of their bodies or their backs to push against the police line is neither here nor there. Nor would it make any difference if they were merely standing passively there in front of the police line, relying on others in the same group to push them against the line. The crucial question is whether they were behaving in a ‘disorderly manner’ which would be likely to cause any person reasonably to fear that they would commit a breach of the peace …”

D2 – ground (7)

117. It has been withdrawn.

D2 – ground (8)

118. It is contended in ground (8) that the magistrate should have considered but did not consider whether a public procession held in a peaceful manner for voicing certain political demands should be exempted from the notification scheme under section 13 of the Public Order Ordinance by virtue of Article 27 of the Basic Law and Article 17 of the Bill of Rights.

119. Counsel indicated that he would rely on D1’s submissions in this regard.

120. This ground is similar to D1’s grounds of appeal (1) and (1A).  The conclusion I came to in respect of this issue was set out above.

D2 – ground (10)

121. It has been withdrawn.

D2 – ground (11)

122. Ground (11) is the allegation that the magistrate should have considered but did not consider whether a public procession held in a peaceful manner for voicing certain political demands should be exempted from the notification scheme under section 7 of the Public Order Ordinance by virtue of Article 27 of the Basic Law and Article 17 of the Bill of Rights.

123. Counsel indicated that he would rely on D1’s submissions in this regard.

124. D1’s arguments concentrated on processions but not on meetings, so the notification scheme he referred to was just the one under section 13 of the Public Order Ordinance. However, whether it is a meeting or a procession, prior notice has to be given to the Commissioner of Police.  In this regard the legal principle is the same.  My discussion in respect of this issue was set out above.

D2 – ground (13)

125. Ground (13) is the complaint that the magistrate erred in refusing to grant D2’s application for provision of the audio compact discs of the trial, thereby hindering D2 in the preparation of his defence or closing submission and resulted in an unfair trial.

Content

126. At the trial, the prosecution called 21 witnesses (three tram drivers, 15 police officers of various ranks, five police photographers and four arresting police officers) in seven days (20, 21, 22, 23, 26, 27 and 28 November 2012).  On the 28^th, the magistrate adjourned the case to 3 December for continuation of the trial. On the following day (29 November), D2 sent a letter to the court asking for audio compact discs of the trial conducted in those seven days.  On 30 November, the magistrate replied through the First Clerk that only the transcript of the audio recording of the trial conducted in those seven days would be provided, subject to the payment of the expense by D2 and that it was to be provided after the conclusion of the trial.  D2 immediately wrote back in reply, saying that the fee charged for provision of the transcript was extremely high and that to provide him with the transcript only after the trial concluded would not help him at all.  He came up with this explanation:

“ The main reason for my application on 29 November for the audio compact discs is that I hope that by listening to the audio recording I could more accurately grasp the information provided during the trial. The period of time in relation to which I apply for the audio recording of the trial is rather long. The audio recording of the trial which I apply for involved a trial of six days. The contents include oral evidence given by a large number of witnesses, comments made by the court, questions asked by the prosecutor and the defence counsel. I did not have enough time to take down in writing [all] the relevant evidence. I just hope that I could as soon as possible listen again to the parts which concern me and record them, and I do not need each and every part of the utterances.

  Since I was not legally represented, during the trial I did not have enough time or resources to take down the evidence of the witnesses in detail.  As a defendant, I could not act like a judge to ask a witness to pause for a moment to let me have time to take down in writing what the witness said in evidence.  When the court, counsel and the witness all spoke at the same time, it was even more difficult for me to fully record the evidence of the witness.  Furthermore, sometimes only after a witness had given evidence did I realize that I should have made a more detailed record of the evidence given by the witness who gave evidence before that witness.  I have to obtain the audio recording of the trial; only then can I be sure that I can record and analyse all the evidence, without omitting anything which I consider to be important.”

On 3 December, the First Clerk sent him another reply letter, telling him that the magistrate confirmed the original decision, but no explanation was given, so in the end D2’s application failed. In his closing submission D2 reiterated this point.  He said he had no assistant; at the trial he did not have any desk or table which was a desk or table in the strict sense of the word; in addition, he was not a lawyer, so frequently it was only after the event that he realized that his record did not have enough details.  The magistrate’s refusal to provide him with the compact discs and the absence of any explanation adversely affected his defense.  He considered that the trial was unfair.

127. The foregoing is the factual background of ground (13).  Counsel argued that the magistrate’s decision contravened the stipulation under section 35A(1)(g) of the Magistrates Ordinance, Cap 227, Laws of Hong Kong that either party to the proceedings could be provided free of charge with the record of the evidence of the witnesses. Counsel submitted that the facts showed that D2 was deprived of one of the minimum guarantees conferred by Article 12[sic] (2)(b) of the Bill of Rights on everyone charged with a criminal offence, namely “adequate facilities for the preparation of his defence”. Counsel was of the view that as a result of these facts D2 was deprived of his absolute right to a fair trial.  Counsel opined that the magistrate was prejudicial against D2 and his right to a hearing by an impartial tribunal guaranteed by Article 10 of the Bill of Rights was violated.

Discussion

128. One of the authorities which the counsel relied on was the House of Lords case of R v Forbes [2001] 1 AC 473.  In paragraph 24 of the judgment, Lord Bingham said that in dealing with this kind of complaint it was necessary to consider the facts:

“Reference was made in argument to the right to a fair trial guaranteed by article 6 of the European Convention on Human Rights. That is an absolute right. But, as the Judiciary Committee of the Privy Council has very recently held in Brown v Stott [2001] 2 WLR 817, the subsidiary rights comprised within that article are not absolute, and it is always necessary to consider all the facts and the whole history of the proceedings in a particular case to judge whether a defendant’s right to a fair trial has been infringed or not…”

129. Another authority relied on by the counsel was the book The Law on Human Rights[48].  The authors pointed out in paragraphs 11.464 to 11.466 that whether a judge is impartial is to be determined according to two tests, one subjective, one objective:

“Tests to be applied. For the purposes of Article 6(1), the existence of impartiality must be determined according to two tests: a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect.

……

Subjective test. In relation to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary… This proof may take the form of the judge showing that a judge has displayed hostility or ill-will…

Objective test.  The objective test requires a finding, not of actual bias, but of legitimate doubt’ as to impartiality that can be ‘objectively justified’.  The accused’s apprehensions are important, but not decisive unless they are objectively justified.  The higher objective standard is necessary to inspire the confidence of the public, and the criminally accused, in the courts and ensures that justice is not only done, but is seen to be done…”

130. I shall use the two points mentioned above as a guide for the discussion below.

131. The text (relevant parts) of section 34 of the Magistrates Ordinance is as follows:

“34. Minute of proceedings

(1) In all proceedings under this Part the magistrate at the hearing shall take or cause to be taken a full minute in writing, or a record whether by means of shorthand notes or mechanical means or otherwise, so far as circumstances permit, of the following matters –––– (See Form 19)

(a) ……

(b) ……

(c) the evidence or depositions of the witnesses;

(d) …… and

(e) ……

(2) The minute shall, immediately after the close of the case, be handed to the magistrates’ clerk for safe custody.

(3)  The minute or record may be kept in either or both of the official languages.”

132. Next is section 35A of the Magistrates Ordinance:

“35A. Inspection etc. of minute and register

(1) Every minute taken under section 34(1) and every register kept under section 35(1) shall be open for inspection without fee or reward by ––––

(a) a judge;

(b) the Registrar;

(c) the Secretary for Justice;

(d) a judge or deputy judge of the District Court;

(e) the registrar of the District Court;

(f) a magistrate;

(g) any party to the proceedings to which the minute relates or to any proceedings which may be recorded in the register, or his legal representative;

(h) any person, or his legal representative, who satisfies the Registrar or the magistrates’ clerk that such inspection is reasonably required in connection with actual or potential civil or criminal proceedings by or against that person;

(i) any person who satisfies the Registrar or the magistrates’ clerk that there is good and sufficient reason for that inspection.

(2) Any person aggrieved by the decision of a magistrates’ clerk to refuse permission to inspect may appeal to a magistrate whose decision shall be final.

(3) A decision by the Registrar to refuse permission to inspect shall be final.

(4) The right to inspect under subsection (1) shall include the right to a copy of the minute or register subject, in the case of applicants under subsection (1)(g), (h) and (i), to the payment of the prescribed fee.

(5)  Disclosure of the contents of a minute or register under subsection (1) shall not amount to a breach of the Rehabilitation of Offenders Ordinance (Cap 297).”

133. Since the respondent did not put forward any argument to the contrary, I find that according to sections 35A(1)(g) and 35A(4), D2 did have the right to ask the court for the audio compact discs concerned, subject to the payment of the fee, and that it is not necessary that he could do so only after the conclusion of the trial. Therefore, the magistrate’s refusal to grant D2’s application was wrong.  As to whether this decision was made out of prejudice, I believe that the answer should be “No”.  The copies[49] show that both reply letters which the First Clerk sent to D2 were quite concise.  The contents were mainly references to the directions given by the magistrate.  This is a very commonly used practice.  Usually, to deal with this kind of applications the court, no matter it is a court at which level, will not provide any reasons in detail.  This is the first point.

134. The second point is that in the second reply letter of the First Clerk, although there was still no direct mention of why the application was refused, the directions given by the magistrate comprised the following two sentences:

“1. The decision made on the last occasion is confirmed;

2.  Please refer to section 35A(1) of the Magistrates Ordinance, Cap 227, Laws of Hong Kong (see the attached document).”

The significance of this matter is that the magistrate obviously thought that the answer to D2’s queries could be found in these provisions without realizing at all that he was wrong.  Actually, the attached document[50] not only contained section 35A(1) of the Magistrates Ordinance but the whole section 35A was there; that is to say, all the relevant provisions were provided. Reading these provisions should have made him quite clear that the application should have been granted.  If the magistrate had lost his impartiality, he would not have revealed these provisions to D2.  The same conclusion can be drawn whether one looks at the matter subjectively or objectively.

135. The next question is whether D2’s defence had been adversely affected by this error.

136. I noticed that although there were many witnesses in this case, the evidence of just a few of them was really in dispute, and the subject matter of the dispute was not complicated. This can be clearly seen from the relevant passages of the Statement of Findings[51].  The appellants have not complained to me that the magistrate had left out anything:

“150. Except for certain aspects (see the analysis below in the relevant paragraphs), the court found that the prosecution witnesses (with the exception of part of the evidence of PW17 and PW18) were all honest and reliable witnesses in relation to the key issues. No material inconsistencies, contradictions or illogicalities appeared in respect of material issues in these witnesses’ evidence when they were being cross-examined. When there were discrepancies in their evidence, almost all could be satisfactorily explained by the fact that the witnesses saw only parts, not the whole, of the procession and that they saw them at different positions and at different times.

151. The defence complained that several main prosecution witnesses exaggerated what happened in the incident, and that in doing so they gave evidence which was untrue or unfavorable to the defence. According to the defence, the most obvious examples included:

(i) PW12 stated that the procession caused vehicles and trams to brake abruptly.

(ii) PW12 said he/she saw the procession play the wave about as many as 10 times.

(iii) PW8 and PW18 were of the view that before the protesters pressed their bodies against and pushed the police line, they behaved in an agitated manner.

(iv) PW16 stated that several hundred protesters charged the police line and that some people threw ‘eight to ten’ water bottles forward.

(v) PW18 stated that D2 had turned round, with his arms linked through others’ arms, and pressed his back against the defence line, and that D1 was also arm in arm with the protesters.

(vi) Both PW8 and PW18 stated that D1 had said [they] would break through the police line.

(vii) The evidence about when the three trams were obstructed did not tally.

152.  …… [Then the magistrate analysed these complaints one by one]”

137. This is similar to the defence’s attack on the prosecution’s video recordings and the transcript of the video-recordings[52]:

“142. When the defence cross-examined the prosecution witnesses, they focused on challenging the witnesses in the following aspects:

(i) Were the police officers who did the video-recording sufficiently experienced in collecting evidence in a public event? What principle or standard did they apply in deciding what they should video-record or need not video-record?

(ii) Did the video-recording police officers focus their attention or why did they focus their attention on D1 and D2?

(iii) Why did members of the video-recording team, which consisted of three or four persons, include detectives of the District/Regional Crime Unit?

(iv) Who instructed the video-recording police officers to commence and stop video-recording? and

(v) What principles did the editing police officers apply in choosing the parts of the recordings to be used and in preparing the transcripts.

143.  …… [Then the magistrate analysed these challenges one by one]”

138. Finally, as regards this complaint made by D2 (even by D1) on this topic, the magistrate actually had dealt with it from paragraphs 193 to 196 of the Statement of Finding[53]:

“193. [D1] and [D2] did not have legal representation. In their submissions they told the court that they did not have adequate facilities for them to sufficiently record the process of the trial.

194. At the beginning of the trial, I clearly explained to the two defendants that they could record the process of the trial by using pens and paper, so that they could effectively cross-examine the witnesses and make submissions. In the course of the trial, both [D1] and [D2] were able to clearly indicate what they wanted; for example, they wanted an adjournment etc., but they did not mention that the writing facilities provided by the court were inadequate.

195. The court had ample opportunities to observe how [D1] and [D2] behave in the course of the trial, and considered that they were fully able to effectively cross-examine the witnesses and make submissions.

196.  The court did not accept the complaint made by [D1] and [D2] that the writing facilities provided by the court were inadequate, nor did the court accept the allegation that because they were unable to record the process of the trial they could not effectively conduct their defence.”

139. All in all, I do not think that the prosecution witnesses’ evidence was too difficult for D2 to handle. The magistrate’s findings essentially drew support from the video-recordings rather than from the witnesses’ evidence.  D2 did not give evidence and did not call any witness.  I do not consider that D2 made such a decision because after his application for provision of the compact discs was refused he was left with no choice.  D1 gave evidence and called witnesses.  That was to a large extent advantageous to D2.  D2 acted in person, but D5 and D8 were represented by a total of four barristers[54].  The charges they faced respectively were the same as those D2 faced.  The cross-examinations conducted and the submissions, including closing submissions, made by the barristers, though not conducted or made directly from D2’s perspective, were definitely helpful to D2’s defence.

D2 – ground (14)

140. Under ground (14), the magistrate is criticized for repeatedly allowing the prosecution to defer the filing of their written closing submission to a later date but requiring D2 to finish his closing submission within one day.

Content

141. The prosecution closed their case on 3 December 2012.  On 6 and 7 December D1 and DW2 (Mr Chor) gave evidence. The two of them were the only witnesses of the defence.  Following that, the magistrate adjourned the trial to 11 January 2013, but the prosecution were required to file their written closing submission not later than 31 December 2012.  However, starting from 2 January 2013 the prosecution again and again asked for postponement.  The following is an outline of what happened from that time onwards to the conclusion of the submissions of D1 and D2:

2 January:  The prosecution asked for a postponement to 3 January for filing their written submission.

3 January:  The prosecution failed to file the submission.

4 January:  D1 asked for an adjournment of the trial which was fixed to resume on 11 January, so that he had at least 11 days’ time to prepare his own submission.  The magistrate replied that he would deal with D1’s application on 11 January.

7 January:  The prosecution indicated that they would file their submission the following day.  The prosecution, D5 and D8 at the same time stated that they agreed to the adjournment of the 11 January trial.

8 January:  The prosecution failed to file their submission.  The magistrate ordered that both parties were to make submissions on 11 January in respect of the video footage.

9 January:  The prosecution sent the first 21 pages of their written submission by fax.  D1 asked the magistrate whether his application for adjourning the trial had been refused.  The magistrate reiterated that both parties were to make submissions on 11 January in respect of the video footage, while other matters would be dealt with on that day as well.

11 January: The prosecution file their complete written closing submission, which consisted of 32 pages in total.  The magistrate ordered that the prosecution were to supplement it orally on 22 January.  The time limit for the defence to file their written submission was 7 February.

22 January: The prosecution began their submission.  The magistrate brought up the issue of joint enterprise and asked the prosecution to file further written submission on 30 January.

30 January: The prosecution failed to file the submission.

31 January: The prosecution filed further written submission, which was about the issue of joint enterprise.

19 February: D1 began his closing speech, which lasted six and a half days (19, 22, 25 and 26 February, and 4, 12 and 18 March).

26 February: D1 continued with his submission.  Before the adjournment, the magistrate asked D2 whether he could begin his submission on 12 March as anticipated.  D2 said he could.  He even said he just needed five to six hours, but he added that he might be unable to finish it within one day, depending on when it formally began[55].

4 March:  D1’s submission continued.  Before the court adjourned he clearly indicated that he would finish it on 12 March.  Upon the magistrate’s enquiry, D2 said he and D1 had reached an understanding.  D1 would finish in the morning of the 12^th and he would begin in the afternoon.  If he (D2) could not finish by half past four, he would go on and finish his submission later that day[56].

12 March:  Once the court session began, D1 indicated that he could not finish his submission within that day.  The magistrate answered that in that case D1 and D2 had to come back to court on the following day (13^th) and on the several days after that day to continue making their submissions until both of them finished their submissions.  D1 said he agreed to that, while D2 said he felt he was under pressure.  He there and then complained that the magistrate was unfair, and he relied on the fact that the prosecution had time and time again delayed filing their written submission but had never been reproached to support his complaint.  After listening to it, the magistrate made no reply and had a conversation with D5 instead.  D2 pressed the magistrate for an explanation, but was took no notice of by him[57].

18 March:  D1 finished his submission in the morning.  D2 began his in the afternoon[58].

19 March:  D2’s submission finished in the afternoon[59].

142. Counsel contended that in dealing with matters concerning D2’s closing submission, the impression given by the magistrate was that he was tolerant to the prosecution but strict to D2, that when he was queried by D2, he seemed to regard it as unworthy of reply, and that the effect was such that a bystander would have the feeling that the magistrate was biased and doubt whether the trial was a fair one.

Discussion

143. As shown in the chronology above, on 26 February D2 already said that he could began his submission on 12 March and that the time he needed was five to six hours.  His stance did not change on 4 March.  On 12 March there was a change in the situation and that was because once the court session began D1 indicated that he needed more time.  If that had not happened, D2 surely could have begun his submission in the afternoon that day as scheduled until he finished.

144. The magistrate told D1 and D2 to come back on the next few days to continue with their submissions.  That was his instant response.  The words he used were “tomorrow, the day after tomorrow, until conclusion”, not one day as alleged in the ground of appeal. Besides, the magistrate still asked the two appellants for their opinions and obtained D1’s consent[60]:

“Court: In that case, first defendant --

D1: But I don’t know whether today I -- I mean I -- If I proceed at this rate, I don’t know whether I can finish it in the morning today --

Court: I have a -- a --

D1: Because now --

Court: -- certain view. Since you have prepared a written -- a written one, actually you don’t need to read it out in court, because if you can just give -- give me half an hour, I can -- well, read it first, then I’ll see whether you want to add anything. I want to know whether the submissions of the first and the second defendants can optimistically finish today. Until – That is until whatever hour this evening --

D1: I think I can’t.

Court: Reasons?

D1: Here -- very simple.If you tell me to read it out, I still have to explain, right? I have to explain, particularly -- I mean on the last occasion -- that is -- I have some ordinary submission about charge (2), and I came across some problems about points of law.

Court: If so, we have to come back tomorrow to continue.

D1: Come back tomorrow, no problem.

Court: Until -- until conclusion. Well, D2, what is your view?

D2: In principle, tomorrow, it’s alright for me.

Court: Until conclusion?

D1: Because we tomorrow, the meeting -- the meeting is adjourned.

Court: Tomorrow, the day after tomorrow, until conclusion. This is my -- my -- my view, because we have -- we have reached this stage. I believe that actually the first defendant, the second defendant, you have ample time to prepare your submissions. I mean from -- from the prosecution -- from the time when the prosecution finished their submission up to now, you have ample time.

D2: I would like this to be put in record, that is, I have to complain about this speed. Of course, it’s Your Worship’s --

Court: I understand.

D2: That’s your order, we cannot disobey.

Court: I understand.

D2: But I mean in the beginning you gave so much time to the prosecution for them to prepare. When it is towards the end you accelerate --

Court: This, I understand.

D2: I mean -- I mean you accelerate to a specially fast speed. This, as far as I am concerned, gives me pressure.

Court: I understand.

D2: This kind of pressure, when exerted on someone unrepresented -- I mean an accused, is absolutely unfair.

Court: I understand.

D2: I would like it to be put in record. Your suggestion --

Court: I have said -- said before --

D2: -- your way of doing things is an unfair one. This is my --

Court: Second defendant.

D2: This is my suggestion, to put it --

Court: Second defendant.

D2: put it in record.

Court: On the last occasion it was clearly said, it was said that if the first defendant could finish it today, the second defendant, you said you could finish it in any event.

D2: Similar thing happened before. Earlier, the prosecution had to file their submission and they were given a time limit. It turned out that there was a delay of one to two weeks, and you allowed them to have a delay of one to two weeks. That is to say, when the prosecution delayed, you allowed them to do so; but when we asked for two more days, you -- I mean, you use the power you got -- you got as a judge and insist that it must be finished within these two days. I have never heard that a court’s trial must finish within two days, unless you have a political mission to accomplish.

Court: Yes, fifth defendant.

D5: In tomorrow morning I have a bills committee meeting about the Import and Export Ordinance --

Court: Sorry, sorry. This is already -- The court considers that it is unavoidable. I believe that you --

D5: No, I -- I just want to inform you. If you --

Court: You, if you --

D5: Your ruling is absolute. Then I -- I -- I --

Court: I -- I hope that you can --

D5: I think that my rights and interests --

Court: can understand --

D5: I want to tell you that.

Court: and make other arrangements.

D2: I -- I would like to ask Your Worship for an explanation as to why on that occasion when the prosecute -- prosecute -- prosecution prepared [their submission] and there was a delay of over one week, of two weeks, and they submitted supplementary documents too, and you accepted that. I mean for things that happened earlier delays in such a manner were allowed, but when it’s towards the end you accelerate the process to a specially fast speed. Well, to me you are unfair.

Court: It has been put in record, your complaint, Please sit down.

D2: No, you -- can you explain why did you -- allow them to do so at that time?

Court: Please sit down.

D2: You mean you don’t need to explain?

Court: Please sit down.

D2: You mean you need not explain?

Court: Please sit down.

D2: Yes -- do you need to explain or not, I just want an answer.

Court: Second defendant, second defendant, I have let you finish talking and have put your complaint in record. Please sit down.

D2: No, I want you to answer. You said you need not answer --

Court: If you -- you don’t comply --

D2: You said you need not answer --

Court: If you don’t comply with the court’s order --

D2: Well, I accept this explanation.

Court: Then I shall consider -- consider something which no one needs -- no one wants to happen. Please sit down.

D2: [You] can refuse to answer.

Court:  Yes, fifth defendant.”

145. It can be seen from the conversation above that it is not the case that D2 could not come to court on 13 March.  Owing to the fact that D1 overran, the court wanted what had been scheduled to be done on that day to proceed on the following day until conclusion.  D2’s complaint against such an arrangement was hard to understand.  I am unable to see from where the pressure he felt came.  D2’s allegation that the magistrate was biased was also unfounded.  The prosecution could not file their written submission.  That was because they had not yet got it ready.  However, D2’s submission was ready on the 12^th.  He had no reason not to carry on.  The magistrate took no notice of D2 any more.  I believe the reason was that D2 accused him of having a political mission.  D2 asked him several times about the same thing.  What he achieved by such conduct was that the restraint and the courtesy which all parties in court should exercise and practised were progressively undermined.  In any event, after the morning adjournment the magistrate did consult the parties as to the dates to which the trial should be adjourned[61].  As a result, two days, namely 18 and 19 March were fixed for the rest of the trial.  In my judgment, a neutral and informed bystander would not have the feeling that the trial was unfair.  I consider that the magistrate had shown the maximum amount of patience.

D2 – ground (15)

146. It has been withdrawn.

Appeal against sentence

Sentences passed by magistrate

147. The following is the full text of the Reasons for Sentence:

“Introduction

327. Unless the court declares legislation to be in contravention of the Hong Kong Basic Law or human rights, there is no legislation in Hong Kong which people can choose to obey or not to obey. Anyone who commits a criminal offence must be criminally liable for what he did. The same applies to one who holds strong views on certain social issues. No one can be above the law, otherwise the spirit of the rule of law, which is one of the core values of our community, will be seriously undermined.

328. The first and the second defendants are members of the Hong Kong Legislative Council. The first defendant, having committed criminal offences, gave untruthful evidence under oath. He even alleged that [a] law enforcing officer pushed him to the ground in front of a group of protesters who were marching forward while chanting “one, two; one, two”. The second defendant similarly committed criminal offences, and he went so far as to gratuitously criticized me for having a political mission. In the end he had to publicly apologized to the court. The behaviour of these two defendants at the trial has done inestimable harm to the Hong Kong community.

Facts of the case

329. See the prosecution case and the corresponding findings of facts above.

Discussion

330. The importance of the spirit of the rule of law to the community cannot be understated.

331. Freedom of speech, freedom of procession and freedom of demonstration all relate to the core values of the Hong Kong community, but the spirit of the rule of law is equally important.

332. The spirit of the rule of law enables our community to continue to develop in a highly efficient way and its effects are manifested in the following five important areas:

(i) The spirit of the rule of law ensures that elections are fair and clean.

(ii) The rule of law must be relied on to ensure that the economic and business environment is fair and stable.

(iii) To ensure that administrative decisions made by the government are lawful, and to enhance the transparency of the decision making process of the government so that a citizen can effectively challenge an administrative decision, these are also within the domain of the rule of law.

(iv) To combat corruption and serious crimes, this is the core function of the rule of law.

(v) The only way to ensure that measures concerning human rights are properly implemented and to protect the interests of the underprivileged groups is to fully put into effect the spirit of the rule of law.

333. A completely independent judicial system and the judicial officers who man this system are indispensable to a community which practises the rule of law. Any organized or large-scale activity which does damage to the spirit of the rule of law will directly or indirectly undermine the above-mentioned five important factors which can guarantee a community to continue to develop in a highly efficient way and in a manner in which the underprivileged groups are sufficiently protected.

334. Demonstrations and processions have since long ago become part of the daily life of the Hong Kong citizens. A lawful and peaceful demonstration or procession not only will not do damage to the spirit of the rule of law, it can even strengthen the law abiding spirit of the citizens, and enable them to voice their demands in a rational way. On the contrary, an unlawful demonstration or procession or one which is not peaceful has a clear tendency to do, or poses a clear threat that it will do, extensive damage to the spirit of the rule of law. The rule of law is not to be damaged, because if the rule of law is endangered, social development will definitely be impeded.

335. A demonstration or a procession certainly relates to the freedom of speech. The first defendant adamantly protested that the law involved in this case was an iniquitous law which encroached upon the freedom of peaceful demonstration and curtailed the freedom of speech.

336. The court noticed that the number of processions and demonstrations drastically increased from 1,197 cases per year in 1997 to 7,529 cases in 2012. The court took the view that the large rise in the number of processions and demonstrations and the fact that an overwhelming majority of these processions and demonstrations could conclude in a peaceful and orderly manner supplied the best evidence to show that the present mechanism in force in Hong Kong is able to effectively provide a legal environment for the exercise of the freedom of speech, the freedom of procession and the freedom of demonstration.

337. The first defendant argued that radical social movements had to be used to correct the problems relating to the wide gap between the rich and the poor in Hong Kong. In his submission he quoted what was said by the founding father of the European Union to support his argument.

338. In the court’s view, regardless of what political ideologies a person or a group of persons hold, it is undesirable for the person or the group of persons to do anything which does damage to the spirit of the rule of law in a large scale. In 1788, Jame Madison, who was one of the founding fathers of the United States of America, hailed as the Father of the Constitution and who subsequently became the fourth president of the United States, published an essay Federalist No. 10, which is of world renown. He said:

‘… By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.’

339. In the court’s judgment, in Hong Kong, which is such a densely populated city, to abuse the freedom of procession and the freedom of demonstration and occupy the main roads is to act with utter disregard for citizens’ right to use the roads. And the commission of illegal acts, including breach of the peace, in the course of abusing one’s freedom of procession and freedom of demonstration is against the long term interests of the community as a whole.

340. Madison further pointed out that the injustice, the instability and confusion brought about by the factions were ‘the mortal diseases under which popular governments have everywhere perished’.

341. Madison’s view is politically neutral and is not directed against any particular political ideology. It is only a criticism against activities which are adverse to the interests of the community. Likewise, in passing judgment in this case, the court only aimed at activities which undermined the spirit of the rule of law.

342. The importance of Madison’s criticism is felt through the ages. After 200 odd years, in 2003, a book entitled The Future of Freedom - Illiberal Democracy at Home and Abroad by Fareed Zakaria, an American public intellectual of world renown, was published. It has been translated into 20 odd languages, and highly recommended by many eminent statesmen and scholars such as Sameul Hunting [sic].

343.  In the same year, the president of Yale University, Professor Richard Levin, recommended this book by Fareed Zakaria to all freshmen of 2003 (regardless of which faculty he or she belonged).  Professor Levin said, “… our role will be to encourage you to think for yourself.  So I won’t tell you whether I think Zakaria is right or wrong … .Just let me suggest that you read the book …” [These English words are extracted from the address presented by Mr Richard Levin at the freshman assembly on 11 October 2003.]

344. On page 170 of Zakaria’s book the momentous criticism made by Madison is revisited.

345. In the present case, there is no doubt that the first and the second defendants played a leading role. The video recordings and the photographs of defence exhibit D1 clearly showed what happened when the police line was stormed. The court considered that the main reason why no one was injured (especially the first defendant himself) in the incident was that the police used pepper spray at an opportune moment, which stopped the protesters from marching forward.

346. The video recordings showed that just behind the front row of protesters who were storming the police line there were quite a number of protesters who were also arm in arm, but these protesters were unable to see whether any dangerous situation had arisen in the front row and were still pressing towards the front row amidst the chanting of numbers. The court considered that actually a very big risk was created when the storming of the police line took place, and that it was sheer luck that no one was injured. For this reason, the court regarded the present case to be more serious than a run-of-the-mill case of a similar nature.

347. The two defendants organized the protesters and directed them to storm the police line. They themselves did not timely and effectively withdraw from the storming actions. They paid no regard to the personal safety of the protesters, the policemen, the reporters and even that of their own. This factor was far more serious than obstructing traffic by holding the procession.

348. Generally speaking, the giving of untrue evidence by a defendant when he was giving evidence defending himself is not necessarily an aggravating factor. However, the groundless and untrue accusations made by the first defendant under oath against the law enforcing officers had nothing to do at all with his defence and were totally unnecessary. Therefore, it is an aggravating factor.

349. The court accepted the second defendant’s apology. His groundless allegation that the court had a political mission was not taken into consideration in the sentencing process.

Conclusion

350. The court emphasizes that a person, whether he is under a suspended sentence or not, can exercise his freedom of speech, freedom of procession and freedom of demonstration conferred by the law, including the right to hold a lawful and peaceful procession or demonstration. On the other hand, anyone who takes part in a procession or demonstration, whether he is under a suspended sentence or not, if he does anything which constitutes a criminal offence, has to bear criminal liability.

351. In the constitutional system of Hong Kong, the court is the ultimate arbiter in respect of matters concerning freedom of speech. The court respects the exercise of the freedom of speech, freedom of procession and freedom of demonstration by any person, but reiterates that all these freedoms have a bottom line delimited by the law.

352. None of the two defendants had any criminal record. Having considered the facts and all relevant information. The sentences were as follows:

(I) D1

(a) Charge (1), six weeks’ imprisonment, suspended for 14 months.

(b) Charge (2), a fine of $2,400.

(c) Charge (7), a fine of $2,400.

(II) D2

(a) Charge (1), five weeks’ imprisonment, suspended for 12 months.

(b) Charge (3), a fine of $2,400.

(c)  Charge (7), a fine of $2,400.”

Grounds of appeal

148. D1’s counsel complained that:

(1)  The magistrate erred on a matter of principle when he treated D1’s defence as an aggravating factor (paragraph 348 of the Reasons for Sentence).

(2)  The magistrate erred on a matter of principle in applying his political views as part of his reasoning in sentencing (paragraphs 338 to 344 of the Reasons for Sentence).

(3)  The sentence for charge (1) was manifestly excessive.

149. D2’s counsel complained that:

(1)  The magistrate’s remark that “The behavior of these two defendants at the trial has done inestimable harm to the Hong Kong community” (paragraph 328 of the Reasons for Sentence) was obscure and vague, which was likely to be the result of having taken into account things which should not have been taken into account. Therefore he had erred on a matter of principle.

(2)  The sentences for all the three charges were manifestly excessive—  

(a)  D2 had no previous conviction record;

(b)  Except for a very brief moment of disorder, the procession proceeded in a perfectly peaceful and orderly manner.

(c)  All the various leaders of the procession called on the protesters to avoid violent bodily contact with the police.

(d)  Before the police made any arrests, D2 urged the protesters to leave the scene.

(e)  No one was injured in the incident.

(f)  Sentences passed in similar cases were more lenient than those imposed in this case (In 1993 To Kwan Hang was sentenced to 160 hours’ community service for unlawful assembly; Leung Kwok Hung was fined $4,500 for an incident arose from a July 1 Protest March, the same activity as the one in this case).

Discussion

150. It is unwise to quote opinions expressed by philosophers or men of learning (paragraphs 338 to 344 of the Reasons for Sentence), unless they have direct connection with professional legal knowledge.  However great the achievements of such philosophers or men of learning have been, their opinions are bound to be relative.  In a pluralistic world, the opinions of any one of them represent only the opinions of a particular school of thought.  Having said that, upon close examination, it can be seen that the intention of the magistrate’s writing in this way was only to point out that the illegal conduct of the two defendants would damage the spirit of the rule of law, that is to say, they knew that there were laws which covered the relevant areas but they did not comply with them.

151. The magistrate criticized the appellants for their behaviour at the trial, ie one falsely claimed that he had been pushed by [a] policeman to the ground and the other queried whether the court had a political mission (paragraph 328 of the Reason for Sentence). What he meant was obviously that such conduct was not commensurate with their status as members of the Legislative Council.  These criticisms only appeared in the Introduction of the Reasons for Sentence and were not treated as aggravating factors in the subsequent analysis, except the untrue accusations against the police.  That factor was viewed as an aggravating factor (paragraph 348 of the Reasons for Sentence) because it “had nothing to do at all with his defence and were totally unnecessary”.

152. The real error committed by the magistrate is that he overly emphasized the actual danger involved in charge (1).  After all, what the protesters did was only moving their bodies closer and closer to the police line slowly and step by step in a certain formation and with a certain number of people.  Finally they pressed their bodies against and pushed the police line, but it lasted only a short time. Even according to the magistrate’s judgment, D1 and D2 should not bear all the responsibility.  This was quite different from dashing with all one’s strength towards, climbing up or pulling the mills barriers placed by the police.  For this reason, plus the fact that none of the two appellants had any previous conviction, the sentences for charge (1) are indeed too severe.  They can be changed to fining each of them $4,800.  It is not necessary to make any distinction between the two of them.  As for the other charges, the comments made by the magistrate that they knowingly committed the offences and that they were leaders were reasonable.  I do not think there is any problem with the sentences.

Conclusion

153. D1’s appeal against conviction is dismissed.  His appeal against sentence is allowed in part.  The original sentence for charge (1) is set aside and is changed to a fine of $4,800.  The fines for charge (2) and charge (7) stand.

154. D2’s appeal against conviction is allowed in part.  The conviction and the sentence for charge (3) are both set aside.  The appeal against sentence is allowed in part.  The original sentence for charge (1) is set aside and is changed to a fine of $4,800.  The fine for charge (7) stands.

[1] D1 Wong Yuk-man, D2 Chan Wai-yip, Albert, D3 Yum Edward Liang-hsien, D4 Lam Yue-yeung, Anthony, D5 Chan Chi-chuen Raymond, D6 Mok Wai-kit, D7 Mak Ip-sing, D8 Chau Tsun-kiu, D9 Lee Wai-yee, D10 Yan Sun-kong.

[2] D1, D2, D6, D7, D8, D9 and D10 (seven persons in total) were charged.

[3] D1, D2, D3, D4 and D5 were charged respectively.

[4] D1, D2, D3, D4 and D5 (five persons in total) were charged.

[5] D5 and D8 were acquitted after trial, while D3, D4, D6, D7, D9 and D10 earlier on agreed to be bound over to be of good behaviour and their cases were disposed of in that way.

[6] What is referred to here is the regulatory regime under Part III of the Public Order Ordinance.

[7] At the trial it was called “DVD highlights”.

[8] In order to fully understand what happened at the time, these must be read.

[9] In order to fully understand what happened at the time, these too must be read.

[10] Page 117 of the appeal bundle.

[11] Pages 134 to 137 of the appeal bundle.

[12] Pages 137 to 144 of the appeal bundle.

[13] Pages 144 to 158 of the appeal bundle.

[14] Pages 165 to 179; pages 211 to 218 of the appeal bundle.

[15] Pages 181 to 209; pages 218 to 224 of the appeal bundle.

[16] Page 685 L to P of the appeal bundle, the magistrate’s oral judgment.

[17] Page 685 Q to S of the appeal bundle, the magistrate’s oral judgment.

[18] means “any procession in, to or from a public place”: section 2 of the Public Order Ordinance.

[19] See the two-stage test mentioned in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409.  (Fok Chun Wa is the only authority cited by the appellants in respect of this issue.)

[20] Though the respondent has made submissions on this point.

[21] Section 13(2) of the Public Order Ordinance.

[22] Paragraph 95 of the judgment.

[23] Page 182 of the judgment.

[24] Pages 214 to 216 of the appeal bundle.

[25] Page 467G of the judgment.

[26] Ralph Crawshaw, Stuart Cullen & Tom Williamson (2^nd Ed)

[27] Paragraphs 1 and 2 of the judgment.

[28] Paragraph 132 of the judgment.

[29] Page 242 of the judgment, holding (3).

[30] As a matter of fact, in the case of Vernon v Paddon discussed in the next paragraph, Forbes J, who was the dissenting judge, was of view that using words and using behaviour were two different acts and that two different offences should be regarded as having been created.

[31] Clow was heard before a Divisional court Constituted by Lord Parker CJ and two High Court judges.  Section 1(1) of the Road Traffic Act 1960, which was involved in that case, provided that: a person who causes the death of another person by the driving of a motor vehicle…recklessly, or at a speed or in a manner dangerous to the public…is guilty of an offence.  The defendant in that case was charged with causing the death of a person by driving a motor vehicle at a speed and in a manner dangerous to the public.  After going through a series of decisions, Lord Parker came to the conclusion that the indictment was properly drawn.  He said, “…the line of authority is clear and supported by Lord Coleridge J, Avory J, Humphreys J and others to the effect that, even if these are separate offences, it is permissible to charge them conjuctively as in the present case if the matter relates to one single incident, as of course it does in the present case, the death of the unfortunate lady concerned.”

[32] In Blackstone’s Criminal Practice 2014 there are very good discussions about duplicity (D11.45 to D11.62), which rendered me great assistance.

[33] Pages 302 to page 303 of the judgment.

[34] Page 140 of the appeal bundle, paragraph 160 of the Statement of Findings.

[35] See paragraph 10 above.

[36] See paragraph 3 above.

[37] Pages 145 to 151 of the appeal bundle.

[38] The “leaders of the procession” referred to by the magistrate in his analysis must be a reference to the defendants and those who had spoken publicly.  Besides D1 and D2, the transcript of the video recordings showed that there were D3, D4, D5 and two men called Wong Yeung-tat and Auyeung Ying-kit [transliteration of 歐陽英杰].

[39] These are the words used by the magistrate himself, see paragraph 160 of the Statement of Findings, page 140 of the appeal bundle.

[40] I noticed that at as early as 10:28 (in the vicinity of the police headquarters), D5 put on a pair of goggles on his head (page 39(10) of the appeal bundle, page 10 of the prosecution’s closing submission).  After the disorder subsided (00:27), he said, “… At last, I have a taste of the power of pepper spray … I’m lucky that I’ve brought along the diving goggles … ” (exhibit P19b).

[41] See paragraph 43 of the Statement of Findings, which was set out in paragraph 6 above.

[42] Page 307 of the judgment.

[43] Page 281 of the appeal bundle.

[44] In fact, D2 did not lodge any specific appeal related to him personally in respect of charge (3), the convening offence. However, for the sake of fairness, I have to make this decision.

[45] Pages 218 to 221 of the appeal bundle.  In the original text the names of the cases and the extracts from the cases are in Chinese.  In order to make them easier to understand, I converted them to English.

[46] Pages 151 to 155 of the appeal bundle.  These are four other reasons for the magistrate disbelieving D1.  The first three reasons are set out in paragraph 83 above.

[47] Appeal bundle page 222.

[48] Clayton & Tomlinson, 2^nd Ed, Oxford University Press 2009

[49] Pages 703 and 707 of the appeal bundle.

[50] Page 708 of the appeal bundle.

[51] Page 138 of the [ap]peal bundle.

[52] Page 135 of the appeal bundle.

[53] Page 158 of the appeal bundle.

[54] Three for D5 and one for D8; among them were very experienced ones.

[55] Pages 497 O to 499 I of the appeal bundle.

[56] Pages 534 J to 535 B of the appeal bundle.

[57] Pages 537 A to 539 N of the appeal bundle.

[58] Pages 576 of the appeal bundle.

[59] Pages 647 of the appeal bundle.

[60] Pages 537R to 539N of the appeal bundle.

[61] Pages 549T to 552B of the appeal bundle.