MTR CORPORATION LTD v. TSANG KIN SHING

[English Translation – 英譯本]

HCMA 170/2017

[2018] HKCFI 1219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 170 OF 2017

(ON APPEAL FROM KTS 16721 OF 2016)

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JUDGMENT

1.  The appellant was charged with one count of “posting matter, namely stickers, on the railway premises at the concourse of MTR Mongkok Station without the written authority of the MTR Corporation Limited”, contrary to By-laws 32(a) and 43 and Schedule of the Mass Transit Railway By-laws made under the Mass Transit Railway Ordinance, Cap 556. The appellant pleaded not guilty and was convicted after trial and fined $1,500 by Madam Ng Chung-yee, Debbie, a magistrate sitting in Kwun Tong Magistrates’ Court. At first, the appellant appealed against conviction and sentence. He later abandoned his appeal against sentence and now he only appeals against conviction.

Prosecution case

2.  It was the prosecution case that at around 4pm on 8 April 2016, the appellant, without the authority of the Hong Kong Mass Transit Railway Corporation Limited (“MTR”), posted a few dozen stickers on the wall at the concourse of MTR Mongkok Station.  Despite the fact that MTR staff had warned the appellant, he continued to post the stickers. The MTR staff as a result summonsed the appellant.     

3.  The prosecution and the defence admitted by way of admitted facts that PW1 and PW2 were persons authorized to act on behalf of the MTR.  The video recorded by PW1 with a body   camcorder at the material time was produced as exhibit.  

4.  PW1 was a BIU Officer responsible for enforcing MTR By-laws. He had 3 years’ working experience. On the day in question, he was informed of an unauthorized “protest” inside Mongkok Station. He then proceeded to deal with the matter. He saw 6 to 8 people, both men and women, putting 3 foldable tables at Exit E, chanting slogans with loudhailers and distributing leaflets. Meanwhile, the appellant was posting about 5 to 10 stickers, each approximately 12 cm x 12 cm in size, showing the portraits of different Legislative Council members, on the wall inside the MTR [station]. There were phrases in colour on the stickers as follows: (1) successfully fighting for the cooperation of the two railways; (2) frantic fare increase; and (3) only upward fare adjustments and no downward fare adjustments for MTR.   

5.  PW1 had obtained instructions earlier that the appellant had no authorization from the MTR, so he went to stop and warn the appellant that he was not allowed to post any matter without the MTR’s consent. However, the appellant ignored him and carried on posting the stickers. PW1 as a result summonsed the appellant. The entire protest commenced sometime after 4 pm and ended   sometime after 6 pm.    

6.  The video recorded by PW1 lasted for 8 minutes and 6 seconds which showed the appellant posting stickers.

7.  PW2 was a Station Controller who had worked for the MTR for 20 years. He witnessed the appellant posting stickers on the wall and PW1 serving a Notice of Intended Prosecution to the appellant. 

8.  As far as PW2 was concerned, as to this “protest”, he had neither been notified that the protesters had any authority nor been given them any authority or approval to do so.  

9.  Regarding the posting of stickers, as far as PW2 was concerned, he knew that the appellant did not have any written authority of the MTR to post stickers in Mongkok Station. He neither authorized nor permitted the appellant to post stickers. And the appellant had never said he (namely the appellant) had any written authority of the MTR.  

10.  PW2 said if there was any authority, there would be an e-mail notification about when and where the event would be held in the station. Among the e-mails he received, there was none about   any authority for this “protest”.    

11.  PW2 said he had been notified by e-mail in the past about authorized events of posting stickers. If there was authority for posting stickers, the e-mail would set out information such as the place of posting, time of posting, the display period, the layout and the organization responsible for removing the stickers. As far as this incident was concerned, he did not see any e-mail authorizing the posting of stickers.

12.  PW2 pointed out that the cleaning workers had to spend a night to remove the stickers in this incident.

Defence case

13.  The appellant neither gave evidence nor called any witness.

The issues at trial

14.  The magistrate set out in her statement of findings the skeleton submissions of both the prosecution and the defence which showed the issues in question:

“42. Prosecution submissions

(1) As the MTR has the right to prosecute, the prosecution does not dispute that the Hong Kong MTR Corporation Limited can also be regarded as “a public authority, or a person acting on behalf of a public authority”, and therefore the Hong Kong Bill of Rights Ordinance also applies to the railways premises.

(2) The prosecution set out the relevant laws and cases, submitting that the freedoms of expression, of speech, of assembly and of demonstration are not absolute, and are subject to:

(i) restrictions as provided by law;

(ii) such restrictions as provided by law include those restrictions made for the respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals, or for the protection of rights and freedoms of others.

The present offence is in compliance with the legal requirements above for restrictions, and such restrictions are necessary. Accordingly, they do not violate the freedom of expression as provided by the Bill of Rights Ordinance (the Basic Law), nor are they inconsistent with the freedom of speech.

(3) By-law 32(a) in the present case is a negative averment and the burden of proof of having written authority lies with the defence on the balance of probabilities.

43. Defence submissions

(1) Sections 8, 13, 15, 26, 34, 55, 56 and 58 of the Mass Transit Railway Ordinance show the public nature of the MTR Corporation which brings it into the public domain. Hence, it shall be regarded as “a public authority or a person acting on behalf of a public authority which shows a public nature, therefore the Hong Kong Bill of Rights Ordinance also applies to railway premises.

(2) The said provision, namely By-law 32(a) of the Mass Transit Railway By-laws, is unconstitutional [because] the said provision violates the defendant’s freedoms of speech, of expression and of demonstration. Article 16 of Hong Kong Bill of Rights Ordinance, Article 19 of the International Covenant on Civil and Political Rights, Articles 27 and 39 of the Basic Law.

(3) The prosecution failed to prove the element of “without the written authority of the MTR Corporation” as set out in the provision. The prosecution only produced hearsay evidence. This element must be proved by the prosecution. As it is not a negative averment, it is not incumbent upon the defendant to adduce the evidence.”

The findings of the magistrate

15.  After the magistrate had set out the evidence, the issues, the relevant laws and the authorities, she found that although the Bill of Rights binds the MTR, in fact the charge did not contravene the Basic Law and the Bill of Rights, nor was it unconstitutional.    

16.  The magistrate accepted the prosecution’s submission that in considering Articles 16 and 17 of the Bill of Rights, the rights enjoyed by citizens were not absolute. The magistrate disagreed with the defence’s submission that the relevant provision “constituted an across-the-board ban, stopping all sorts of posting activities without any written authority of the MTR on the railway premises” [1]. She pointed out that the charge did not abrogate  freedom of speech, it was just that “without the written authority of the MTR, no one should post any stickers on the railway premises” [2].   

17.  The magistrate agreed with the prosecution that the charge was laid in accordance with law. As pointed out by the magistrate, Section 55 of the Mass Transit Railway Ordinance provides that for the purposes of the Public Order Ordinance, the railway premises will be regarded as “public places”; as a result the “railway premises” has a special meaning; and the MTR has an absolute right to regulate, such as by deciding who has the right of access to the railway premises, controlling and managing the use of the railway or the conduct of the public on the railway premises[3].

18.  The magistrate also agreed with the prosecution that in law the MTR has a reasonable statutory power to control and manage the conduct of the those who have access and usage of the railway premises in order to ensure the signage is clear, to protect the rights and freedoms of others to be free from nuisance, influence, obstruction and have safe passage, and to protect the property of the MTR and public hygiene, etc.  The magistrate pointed out that the said power and duties were reasonable and necessary and they were even more reasonable and important in busy stations. The charge in the present case says that it is illegal to post matter (stickers) “without written authority”, but it does not abrogate the appellant’s freedom of expression[4].

19.  The magistrate agreed that the charge brought by the MTR did not contravene the Basic Law and the Bill of Rights. The legal provisions and restrictions concerned shall strike a balance between the need to protect an individual’s freedom of expression, and ensuring that the rights and the freedoms of other members of the public are not affected. The magistrate agreed that the Basic Law and the Bill of Rights should not become an authority for a citizen or anyone to post stickers wherever he wants[5].

20.  Regarding negative averments, the magistrate, after considering the submissions of both the prosecution and the defence, found that the charge in the present case was one of a “negative averment”. Hence, the burden of proof of having “written authority” was on the defence on the balance of probabilities[6].

21.  The magistrate found the appellant guilty as charged.

Grounds of appeal

22.  Counsel for the appellant, Mr Douglas Kwok, who also represented the appellant in the original trial, put forward three amended grounds of appeal as follows:  

“1. The magistrate erred in her judgment that ‘the charge brought by the MTR did not contravene the Basic Law and the Bill of Rights. Moreover, the legal provisions and restrictions concerned shall strike a balance between the need to protect an individual’s freedom of expression, and ensuring that the rights and the freedoms of other members of the public are not affected. I agree that the Basic Law and the Bill of Rights should not become an authority for a citizen or anyone to post stickers wherever he wants.’ (AB-64-90). The magistrate failed to consider whether the restrictions by the MTR were proportionate, and she erred in putting undue emphasis on the MTR having the absolute right to regulate the public: AB-63-85.

2. Under the circumstances that the prosecution did not call any staff from the MTR management to testify as witnesses, the magistrate erred in her judgment that the prosecution had discharged the burden of proof on the constitutional issue. The magistrate failed to deal with the appellant’s argument in this respect: AB-61-73.

3. The magistrate erred in her judgment that the burden of proof of being “without the written authority of the MTR Corporation” as specified in By-law 32(a) was on the defence. In law, it is not a negative averment: AB-67-99.”

23.  Mr Kwok has set out in his skeleton submission a summary of his arguments under those three amended grounds of appeal, which is as follows:

“ 1.   Ground of appeal (1): Whether or not By-law 32(a) of the Mass Transit Railway By-laws (abbreviated as By-law 32(a)) is unconstitutional. The magistrate erred in going to extremes in her interpretation of a freedom (freedoms of speech and expression) (see appeal bundle page 64 paragraph 90: “I agree that the Basic Law and the Bill of Rights should not become an authority for a citizen or anyone to post stickers wherever he wants.” (emphasis added)), as a basis to establish that By-law 32(a) was justified in stopping such an extreme situation. It is erroneous to go to extremes in the interpretation of the appellant’s freedoms or to interpret the power of the MTR under By-law 32(a) as absolute (appeal bundle page 63 paragraph 85). Both ways went to extremes and the magistrate simply failed to conduct the balancing analysis between them.   

2.   The proper approach is to consider whether By-law 32(a) has proportionately balanced the appellant’s freedoms of speech and expression in a peaceful and reasonable manner (see paragraph 24 “The stickers had the head portraits of different members of the Legislative Council and there were phrases in colour as follows: (1) successfully fighting for the cooperation of the two railways (2) frantic fare increase and (3) only upward fare adjustment and no downward fare adjustment for the MTR.”) and whether there was any evidence to support the legitimate aim. The magistrate considered that the Ordinance gave the MTR an absolute power to extinguish the concept of freedom she had distorted (to wilfully post stickers wherever he wants). She had not conducted any balancing analysis at all.    

3.   Ground of appeal (2): It is closely connected with ground of appeal (1) that the prosecution failed to call evidence from the management of the MTR. Not only is the magistrate’s analysis polarized, even if the appeal is to be conducted by way of retrial, there would not be any evidence in this case for the balancing analysis.  

4.   Ground of appeal (3): The offence has not been proved. This is because “without the written authority of MTR Corporation” under By-law 32(a) is an element of the offence and not a negative averment. The prosecution had adduced hearsay evidence which by its nature was insufficient to establish this element of the offence.”

Grounds of appeal (1) and (2)

24.  As grounds of appeal (1) and (2) are related, I will deal with these two grounds first.  

25.  Is By-law 32(a) of the Mass Transit Railways By-laws (the By-law concerned) constitutional? Did the magistrate err?

26.  It is not disputed that the MTR Corporation is “a public authority or a person acting on behalf of a public authority”. Mr Adonis Cheung, counsel for the respondent, also agrees that the MTR Corporation is bound by the Bill of Rights and the Basic Law. 

27.  Citing Secretary for Justice v Richard Ethan Latker[7] where a three-step approach was established, Mr Kwok submits that as the appellant was staging a demonstration at the material time,  his constitutional right to freedom of speech was engaged by the By-law concerned (step 1); as the By-law concerned and the evidence of both prosecution witnesses alleged that the appellant was posting stickers, the By-law concerned infringed the appellant’s freedom (step 2); as the By-law concerned infringed the appellant’s freedom, a criminal offence was involved and the prosecution should prove the infringement was justified (step 3).     

28.  Mr Kwok submits that the By-law concerned is an “across-the-board” ban on all activities of posting matters on railway premises without the authority of the MTR, which is a disproportionate infringement of the appellant’s freedom.    

29.  Mr Kwok submits that as the prosecution did not call the Chairman of the MTR to testify, there is no evidence from the MTR to prove the legitimate purpose of the making of such By-law and the rational connection between the By-law concerned and the legitimate purpose, etc.  

30.  Mr Kwok also submits that the MTR is different from the Legislative Council, and the law-making process of a private corporation is different from that of the Legislative Council. The Judiciary cannot ascertain a private corporation’s law-making intent in making of the By-law. He submits that the evidence of both prosecution witnesses failed to provide proper grounds in support of the infringement of human rights by the By-law. As they are frontline staff of the MTR, they shall not be taken to know the policy making of the MTR Corporation.

31.  Mr Kwok also submits that there is no evidence in the present case to show the appellant’s conduct caused a nuisance, posed a threat, caused an obstruction to others or posed a threat to   safe passage. Mr Kwok submits that one shall not override all basic human rights for the protection of the MTR’s property or public hygiene simply because workers had done cleaning work. Mr Kwok submits that the magistrate interpreted the appellant’s peaceful speech and freedom of reasonable demonstration against the MTR’s fare increase as posting stickers arbitrarily. This was neither a balancing exercise nor analysis. The appellant did not post the stickers “arbitrarily”, in fact he posted the character of “fan” (transliteration of “反”).

32.  Citing HKSAR v Fong Kwok Shan[8], Mr Kwok submits that the Court of Final Appeal interpreted the Legislative Council as a dignified institution through the Legislative Council (Powers and Privileges) Ordinance, where there was a statutory framework behind the Ordinance in support of the interpretation to maintain its dignity, but there is no such statutory framework for the Mass Transit Railways Ordinance or By-laws to introduce a kind of absolute system of supervision and control of passengers.  

33.  Mr Kwok also submits that according to Fong Kwok Shan, the Court of Final Appeal rejected the respondent’s argument that “the right to freedom of expression does not apply if sought to be exercised on government premises to which the general public has not been given free access”. The Court of Final Appeal pointed out that it is wrong in principle[9] to subjugate a fundamental constitutional right to property interests, leaving the applicability or otherwise of that right to the unfettered choice of a Government agency regarding the grant of access. Hence, the MTR should not subjugate the appellant’s constitutional right to “property interests”.   

Respondent’s reply

34.  I have pointed out that the respondent does not deny the Bill of Rights (and the Basic Law) binds the MTR Corporation. Mr Cheung also agrees that an individual’s constitutional right should not be subjugated to “property interests”.    

35.  Basically, the respondent’s stance, as summarized by the magistrate, is that freedoms of speech, of expression, and of assembly are not absolute, they are subject to restrictions provided by law including those lawful restrictions for respect of the rights or reputations of others, etc.  

36.  Mr Cheung stresses that the By-law was made under Section 34 of the Mass Transit Railway Ordinance for purposes including “controlling and regulating the conduct of members of the public using the railway or on railway premises, and protecting the property of the Corporation on railway premises.” There are clear legal basis and background reasons for the restrictions.     

37.  Citing the cases of Ng Kung Siu[10], Chow Nok Hang[11]and Leung Kwok Hung[12], Mr Cheung submits that it involves the “necessary requirement” and the “proportionality test” and striking a balance between an individual’s right to freedom of assembly or other related matters and social interests. In the present case, the MTR has reasonable statutory power to impose restrictions and the restrictions that are imposed are rational and necessary. The charge does not contravene the Basic Law and the Bill of Rights.

38.  The respondent disagrees with the appellant’s submission that the magistrate erred, and submits that the magistrate did satisfy the steps formulated in the case of Latker.

My consideration

39.  Section 7 of the Hong Kong Bill of Rights Ordinance (BORO) (Cap. 383) states clearly that the Ordinance binds public authorities[13].  It is beyond question that MTR is a public authority, therefore, the Bill of Rights is binding on it.   

40.  Article 27 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (the Basic Law) stipulates that:  

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

41.  Article 16 of the Hong Kong Bill of Rights stipulates that:

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

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

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

42.  Article 17 of the Hong Kong Bill of Rights stipulates that:

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

It is clear that freedom of speech is guaranteed by the Bill of Rights and the Basic Law. Although there is no provision similar to Section 7 of the Bill of Rights Ordinance in the Basic Law, the Basic Law shall have a binding effect on the MTR (I have already pointed out that this is not disputed by the defence.)

43.  On the other hand, the right to freedom of expression is not unlimited. Apart from the above restrictions set out in Articles 16 and 17, Article 39 of the Basic Law also provides that the rights and freedoms enjoyed by Hong Kong residents are subject to restrictions as prescribed by law:   

“Article 39

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

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

44.  In Ng Kung Siu, where the Court of Final Appeal considered the right to freedoms of speech and expression under Article 16 of the Basic Law, Chief Justice Li pointed out that:    

“Freedom of expression is not an absolute. The Preamble to the ICCPR recognises that the individual has duties to other individuals and to the community to which he belongs. Article 19(3) itself recognises that the exercise of the right to freedom of expression carries with it special duties and responsibilities and it may therefore be subject to certain restrictions. But these restrictions shall only be such as are provided by law and are necessary:

‘(a) For respect of the rights or reputations of others;

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

45.  In Chow Nok Hang, Mr Justice Ribeiro PJ pointed out that:

“33. Demonstrators are therefore free to assemble and to convey views which may be found to be disagreeable, unpopular, distasteful or even offensive to others and which may be critical of persons in authority. Tolerance of such views and their expression is a hallmark of a pluralistic society. At the same time, it must be recognized that those freedoms are not absolute and demonstrators must ensure that their conduct does not go beyond the constitutional limits of those rights.” [14] (unofficial translation)

46.  The summons in the present case was issued under By-law 32(a) of the Mass Transit Railway By-laws:  

“32. Bill posting etc. prohibited

No person shall, unless authorized in writing by the Corporation—

(a) post, stick, paint or write or cause to be posted, stuck, painted or written any placard, bill, advertisement or any other matter; or

(b) distribute any book, leaflet or other printed matter or any sample or other article, on any part of the railway premises.” (emphasis added)

47.  The By-law concerned is made under Section 34 of the Mass Transit Ordinance: 

“34. Bylaws

(1) The Corporation may, under its common seal, make bylaws for any or all of the following purposes—

(a) prescribing the terms and conditions relating to the use of its service;

(b) controlling and regulating—

(i) the conduct of members of the public using the railway or on railway premises;

(ii) a system for evidencing (whether by the issue of tickets or otherwise) the payment of fares on the railway and any contract of carriage of passengers on the railway;

(iii) advertising on railway premises; and

(iv) the custody and disposal of property found on railway premises;

(c) protecting the property of the Corporation on railway premises…”

48.  According to the definitions in the Mass Transit Railway Ordinance and the Kowloon-Canton Railway Corporation Ordinance, the place in question (Mongkok Station) shall be regarded as railway premises.

49.  By-law 3 of the Mass Transit Railway By-laws provides that:

“3. Admission

(1)   The Corporation reserves the right to refuse to admit any   person onto the railway premises or any part thereof at any time…….”

50.  Section 55 of the Mass Transit Railway Ordinance provides that:

“55. Railway premises are public places

For the avoidance of doubt, and without affecting any other Ordinance, it is declared that the railway premises and transport interchanges are public places for the purposes of the Public Order Ordinance (Cap. 245).”

51.  As Section 55 of the Mass Transit Railway Ordinance provides that railway premises are only declared as public places for the purposes of the Public Order Ordinance, other than that, railway premises are not the same as public places, and the MTR has the right to refuse admission of any person to the railway premises. 

52.  By-law 32(a) is made under Section 34 of the Mass Transit Railway Ordinance. I agree with the submission of MrCheung that the said restriction has a clear legal basis and background reasons.  

53.  The restriction of By-law 32(a) concerns the posting, painting or writing of any placard, bill or advertisement or any other matter on any part on the railway premises. Does the restriction in question unjustifiably limit the appellant’s freedom of expression?   

54.  I have taken into account that the Court of Final Appeal   had held in cases such as Chow Nok Hang, Ng King Siu that the right to freedom of expression is not absolute.  I have also considered that in the case of Fong Kwok Shan, the Court of Final Appeal rejected the argument that the “right to freedom of expression did not apply if sought to be exercised on government premises to which the general public had not been given free access” and pointed out the proper approach to deal with the matter.  I am citing the part summarized in the “headnote”:   

“(2) .... to focus on the guaranteed right, adopting the assumption that it was universally applicable, subject to any constitutionally valid restriction. The right to free expression encompassed as one of its dimensions, the location of its exercise. If access to that place was denied, such denial was properly viewed as a restriction imposed on the exercise of the right so that the legitimacy, rationality and proportionality of that restriction fell to be considered. A rule presumptively excluding free expression at certain types of venues was too blunt an instrument. A proportionality analysis enabled the court to take into account the dimensions of any particular exercise of such rights and the exigencies of the intended venue (Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, Mayor of London v Hall [2011] 1 WLR 504, City of London Corp v Samede [2012] EWCA 160, R (Gallastegui) v Westminster City Council [2013] 1 WLR 2377 applied). (See paras. 39–47, 70)”

55.  I also stress in particular the obiter dictum of the Court of Final Appeal (I am also citing a part of the “headnote”):

“(3) (Obiter) Where the exercise of free expression was engaged on private property, justification of the restriction as a measure necessary for the protection of the rights of others had to be given very substantial weight in the proportionality analysis due to the constitutional protections of private property and privacy. Such weight was further enhanced where the property involved a resident’s home (or their curtilages or common areas). These weighed heavily in favour of validating restricted access although this might be subject to rare possible exceptions (Appleby v United Kingdom (2003) 37 EHRR 38, Brooker v Police [2007] 3 NZLR 91, HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371 considered; Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139 not followed). (See paras. 58–69)”

56.  By-law 32(a) forbids any person without the written authority of the MTR from posting, sticking, painting or writing or causing to be posted, stuck, painted or written any placard, bill, advertisement or any other matter.

57.  It is obvious that the By-law in question concerns sticking or writing on the property (such as a wall) of the railway premises of MTR. The conduct of sticking or writing without the consent of the property owner is a contravention of the owner’s property rights. I disagree with Mr Kwok who submits that posting of stickers itself is not illegal.     

58.  There are many ways to express one’s opinions. Forbidding the appellant from posting stickers without the written authority of the MTR is only limiting one mode of expression by the appellant but not a total restriction of the appellant’s right to freedom of expression.     

59.  I do not agree with the appellant’s submission that the By-law is “across-the-board”. The MTR has the authority to decide who can post stickers on its property on the railway premises. If anyone can post stickers arbitrarily, it may attract a crowd of onlookers leading to the blockage of passageways; or the stickers may block the signage of the MTR affecting users; or the posting of advertisements may affect the rights and interests of the advertisers authorized by the MTR to post advertisements. Hence, the MTR has the authority to demand any person posting stickers make a written application in advance, so that the MTR can make proper arrangements; and the person posting the stickers must have written authority of the MTR, especially during rush hours in a busy station like the one involved in the present case, namely Mongkok Station.    

60.  Although the prosecution did not call the senior management of the MTR to give evidence, as pointed out by MrCheung, the prosecution witness had testified that if he had received the application and the approval for the authority, he would be notified on matters such as the place for posting of the stickers, the layout, the time of posting, the number of stickers and who would be responsible for removing them and so on. Indeed, it is not necessary for the management staff of the MTR to talk about the above basic arrangements one by one. I am also of the view that such arrangements show that the MTR will only allow the posting of matter on the condition that it does not affect the interests of the MTR and others.   

61.  I disagree with Mr Kwok’s submission that as the appellant had posted the stickers to form the character of “fan”, he therefore did not post the stickers “arbitrarily”. I think “arbitrarily” does not refer to the stickers being posted in a messy way, but it refers to his arbitrary act of posting stickers wherever and in whatever way he wished. 

62.  I also disagree with Mr Kwok’s submission that when   conducting the balancing exercise, consideration may be given to the fact that the stickers can be removed easily. Whether the stickers can be easily removed does not affect the fact that the appellant’s act of posting stickers on the property of the MTR is a violation of the MTR’s property right.  

63.  I am of the view that By-law 32(a) only regulates one mode of expression by the appellant, and the regulation and restriction are limited. The appellant can still express his views in other ways.

64.  I have already pointed out that save where the MTR can be regarded as a public place for the purpose of the Public Order Ordinance, railway premises are not public places, they are the MTR’s property instead. I am of the view that justification of the restriction under the By-law concerned for the protection of the property interests of MTR has to be given very substantial weight. Upon balancing both sides: (1) to guarantee the appellant’s right to freedom of expression, and (2) to protect the “property interests” of the MTR and its duty to ensure the rights and freedoms of other MTR users are not affected, I am of the view that the By-law concerned satisfies the “proportionality” test and it is not unconstitutional.    

65.  The first and the second grounds of appeal fail.

The third ground of appeal

66.  Regarding the “negative averment”, Mr Kwok submits that Section 94A of the Criminal Procedure Ordinance is irrelevant in deciding what are the elements of the offence. In the examples given by him, he points out that in the case of being “without reasonable cause” in the offence of loitering (HKSAR v Tong Yiu Wah[15]) and in the case of being “without the licence of the copyright owner” in the offence of “making an infringing copy of a copyright work (HKSAR v Tse Mui Chun[16]), being “without reasonable cause” and being “without the licence of the copyright owner” are the elements of the offences instead of “exceptional” circumstances, which are irrelevant to and not bound by Section 94A.     

67.  The proper analysis should be, as Mr Kwok submits, that being “without the written authority of the Corporation” as stated in By-law 32(a) is not an exceptional situation because the By-law does not prescribe the posting of stickers itself as an offence. On the contrary, By-law 32(a) provides that it is an offence to post matter without the written authority of the MTR Corporation. Therefore, the burden of proving the appellant being without any written authority of the MTR Corporation lies with the prosecution.     

68.  Mr Kwok submits that PW1 did not have any personal knowledge of the said written authority. PW2 solely relied on hearsay evidence to establish that a certain department of the MTR Corporation had not issued any written authority. PW2 could not rely on Section 17A of the Evidence Ordinance to prove that an “unrecorded event did not happen” as he failed to explain if the MTR Corporation was relying on any systems or measures under which a staff member must notify PW2 if there was any written authority of the Corporation.   

69.  Mr Kwok submits that the prosecution failed to discharge its burden of proving the appellant did not obtain the said written authority.  

Respondent’s reply

70.  Mr Cheung submits that the offence in the present case is different from those in the two cases the appellant relies on. In those two cases, the Court of Appeal, after considering the actual contents of the particulars of the offences, came to the conclusion that by nature, only being “without reasonable cause” or “without the licence of the copyright owner” will constitute the offence, therefore, being “without reasonable cause” or “without the licence of the copyright owner” is an element of an offence which is required to be proved by the prosecution.    

71.  The By-law underlying the present offence introduces an “exception or exemption from or restriction to” the present offence, namely “unless” “authorized in writing”. The offence in the present case and the offences involved in the above two cases are different in terms of nature and the interpretation of the wording.  

72.  Mr Cheung cites para 25-23 of Archbold Hong Kong 2018 to support his argument:

“It has been held at first instance that section 13(1), when read in conjunction with s 94A of the Criminal Procedure Ordinance (Cap 221), does not create a presumption as to an essential element of the offence. The absence of a requisite licence is therefore not an ingredient that the prosecution has to prove. The words ‘unless he holds a licence for possession of such arms and ammunition or a dealer’s licence therefor’ in s 13(1)(a) creates an exception to the offence which is a defence that a defendant can avail himself of if he wishes: R v Lau Ting‑man (1991) 1 HKPLR 249 and R v So Sai‑fong (1992) 2 HKPLR 695”

My consideration

73.  Section 94A of the Criminal Procedure Ordinance provides:

“(1) It shall not be necessary in an indictment, charge, complaint or information alleging an offence to negative any exception or exemption from or qualification to the operation of the law creating the offence.

(2) For the avoidance of doubt it is hereby declared that in criminal proceedings—

(a) it is not necessary for the prosecution to negative by evidence any matter to which this subsection applies; and

(b) the burden of proving the same lies on the person seeking to avail himself thereof.

(3) This section applies to criminal proceedings in the District Court or a magistrate’s court.

(4) The matters to which subsection (2) applies are any licence, permit, certificate, authorization, permission, lawful or reasonable authority, purpose, cause or excuse, exception, exemption, qualification or other similar matter.”

74.  I agree with the arguments submitted by Mr Cheung, counsel representing the respondent. I reject the cases cited by Mr Kwok as the offences involved are different from the offence in the present case. Regarding the submission of Mr Kwok that “posting matter” is not an offence itself, I must point out that posting matter without the permission of the property owner is a tortious act. No one shall post matter at will on the property of another person.

75.  I am of the view that “unless” authorized in writing by the MTR Corporation is not one of the elements of the offence, it is an “exception” or “exemption” to the offence instead. Therefore, the By-law is a “negative averment”. Hence, the burden of proof of the existence of the written authority lies on the defence on the balance of probabilities. 

76.  This ground of appeal fails too.

Conclusion

77.  For the above reasons, I dismiss the appellant’s appeal against conviction. 

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.