CHAN HAU MAN, CHRISTINA v. COMMISSIONER OF POLICE

HCAL 139/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 139 OF 2008

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J U D G M E N T

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Introduction

1.  The 2008 Summer Olympics torch relay was run from 24 March until 8 August 2008, the opening day of the Olympic Games hosted in Beijing.  The torch followed a relay route which passed through six continents and many cities.  Hong Kong was one of them. The torch arrived in Hong Kong on 30 April 2008.  The launching ceremony of the Hong Kong leg was to take place at the Hong Kong Cultural Centre on the morning of 2 May 2008, and the actual torch relay was to start immediately following the launching ceremony.  It was to start at the Yau Tsim District where the torch would be carried on foot by selected torchbearers.  The relay route there covered approximately 2,000 metres with 11 torch relay handover points, from the Hong Kong Cultural Centre via the Star Ferry Clock Tower, along Salisbury Road, up Nathan Road to the Austin Road junction with Canton Road, where the torch was to be taken by vehicle to New Territories South region.  High profile torchbearers, including pop singers and movie stars, were to be involved.

2.  The applicant, a post-graduate student at the University of Hong Kong, together with 8 other people, were demonstrators at the torch relay.  They held their protest demonstration at a location near Park Lane, Nos 111 to 139, Nathan Road, Tsim Sha Tsui.  The purpose of their demonstration was “to raise public awareness of human rights and civil liberties issues in Mainland China, the Tibetan region, and particularly the Tibetan people’s right to self-determination”.  The applicant and her fellow demonstrators used a “Snow Mountain Lion” flag, banners and placards for demonstration purposes.  The flag, so the Court has been informed by Mr Paul Harris SC (Mr Hectar Pun with him) for the applicant, is the flag of the “Tibetan Government in exile” based in Northern India.

3.  The torch relay attracted tens of thousands of people who literally filled the two sides of Nathan Road where the torch relay was to go past.  It is fair to say that most of them were exulting and celebrating the fact that their country had the Olympic Games.  Their emotions, according to the evidence, were particularly fuelled by the sometimes mixed reactions that the torch relay had received in the overseas legs, where protests and even disruptive incidents took place.  These incidents were interpreted, at least by some, on the Mainland and in Hong Kong as “anti-China” in nature.  It is also fair to say that many of those who turned up on 2 May to witness the torch relay in Hong Kong, the first leg to be held on Chinese soil, wanted to express their wholehearted support for the holding of the Olympic Games in China and their best wishes that the Games would be a success.  A great deal of national pride, patriotism, strong emotions and feelings were involved.

4.  It is under those very peculiar circumstances that the applicant’s “Free Tibet” protest demonstration on the torch relay day was met with hostile reactions.  Indeed even prior to the relay day, after the applicant’s plan to hold the demonstration had been revealed in the media, anonymous threats had been made against the applicant by people who were obviously offended by the applicant’s proposed demonstration or cause.  And on 2 May, starting from around 6:30 am when the applicant and a fellow demonstrator first arrived at the location of demonstration and continuing until shortly before the torch relay was to commence (10:30 am), the applicant and her fellow demonstrators were met with an increasing number of counter-demonstrators.  Many of these counter-demonstrators were waving Chinese national flags, singing the National Anthem and shouting slogans, which were designed to drown out the applicant’s demonstration.  Moreover, they shouted abuses at the demonstrators (particularly the applicant), calling them names such as “traitors” and “running dogs”.  Some used their national flags to hit the Snow Mountain Lion flag carried by the applicant or her fellow demonstrators.  The police present had to form a “protective bubble” to separate the demonstrators and counter-demonstrators, so as to protect the safety of the applicant and her fellow demonstrators.  As the start of the torch relay got nearer, more and more counter-demonstrators were gathering around the applicant and her fellow demonstrators, whilst the pedestrian pavements on the two sides of Nathan Road were filled to full capacity with high-spirited on-lookers who were there to wait for and cheer alongside the torch bearers.  Estimates of the number of counter-demonstrators varied from at least one hundred to several hundreds at the highest.  There were also present tens of reporters and media people, including overseas media, who were more than eager to cover the confrontation and to interview the applicant and her group.

5.  Police reinforcements were sent to separate the applicant and her fellow demonstrators from the counter-demonstrators who were ever increasing in number.  But the situation, according to the police, simply deteriorated.  At one stage, an irate counter-demonstrator attempted to grab the Snow Mountain Lion flag from the applicant.  He was intercepted by the police.

6.  Eventually, at around 9:50 am, a decision was made by the responsible police officer, a Senior Superintendent of Police, positioned inside the Yau Tsim District Control Room with a command responsibility for the event, to remove the applicant and her group from the scene of protest to a safe spot.  It was felt that there was an imminent danger of a breach of the peace.  It was decided that the applicant and her fellow demonstrators had to be removed from the scene for the sake of their safety as well as the safety of others present, including the police officers protecting them from the counter-demonstrators.

7.  It was in those circumstances that the police led the applicant and her group from where they were into a buffer area (clear zone), with a view to driving them away in a police van to a point of safety.  The buffer zone was formed by cordoning off a strip of the pedestrian pavement along Nathan Road by metal barriers.  The distance between the metal barriers and the raised flowerbeds that line the pedestrian pavement of that part of Nathan Road was about 3 to 4 feet.  The clear zone was established to prevent members of the public from having access to the road where the torch relay would take place and to ensure the police could move freely alongside the relay route to conduct crowd management.  Once inside the buffer zone, the applicant continued with her demonstration.  At one stage, she stood on a raised flowerbed to demonstrate.  According to the police evidence, her actions and demeanour further irritated the counter-demonstrators who kept pushing forward in a manner likely to overturn the metal barriers, shouting abusive words at the applicant.  The metal barriers were kept from falling by police officers standing within the zone to keep them in position.  In the meantime, a number of reporters succeeded in getting inside the buffer zone and some of them even managed to interview the applicant while she was within the zone.  It is the applicant’s case that her flag and a placard she used for demonstration purpose were forcibly taken away from her by the police and she was pressed to the ground when she tried to carry on with her demonstration while within the clear zone.  Eventually, a police van arrived, and against their wishes, the applicant and her fellow demonstrators were taken inside the van and driven away from Tsim Sha Tsui to a designated police station, namely Yau Ma Tei Police Station.  That was around 10:20 am, 10 minutes before the torch relay was due to start.

8.  The applicant and her group spent about an hour in the police station and eventually left at around 11:45 am.

9.  The applicant carried on with her demonstration on the afternoon of the same day.  She went to Central near the LegCo Building which the torch relay was to go past, and carried on with her “Free Tibet” demonstration there.  With the protection of the police, this time she and her fellow demonstrators managed to carry out their demonstration without further incident.  According to the police, after the demonstration the applicant expressed to the police concern about her own safety if she were to walk past “pro-China” groups to take public transport.  She agreed to go on board a police vehicle which drove her to Western Police Station where she got off and left.

Application for judicial review

10.  In these proceedings, the applicant challenges “the decision of the Commissioner of Police by his officers to prevent [her] from exercising her constitutional right to hold a peaceful demonstration near Park Lane, Nos 111 to 139, Nathan Road, Tsim Sha Tsui on 2 May 2008 on the occasion of the passage along Nathan Road of the Olympic Torch Relay”.

11.  Her case is straightforward.  The applicant rightly contends that under article 27 of the Basic Law, she, as a Hong Kong resident, has freedom of speech and enjoys freedom of assembly and of demonstration.  Article 28 says that no Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.  Article 31 provides that she, as a Hong Kong resident, has freedom of movement within the Hong Kong Special Administrative Region.  Similar rights are guaranteed under articles 5, 8, 16, 17 and 22 of the Hong Kong Bill of Rights.  Essentially, the applicant maintains that her right to free speech and right to demonstration have been infringed.  She has been subjected to unlawful arrest or detention, and her freedom of movement has been unlawfully curtailed.

12.  Mr Harris for the applicant accepts that these rights and freedoms are not absolute, but as they are fundamental rights, they must be given a generous interpretation so as to give individuals their full measure, whereas restrictions on these fundamental rights must be narrowly interpreted.  The burden is on the Government to justify any restriction.  Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, 248, para 16.

13.  Mr Harris submits that the applicant’s demonstration has been peaceful, static and lawful, the demonstration was not directed at anybody present and it was non-violent.  Although many may disagree with her cause and may even find it to be objectionable, it does not give them a right to use violence or other means to interfere with her demonstration.  Still less does it give the police a right to stop the applicant and her fellow demonstrators, as opposed to the counter-demonstrators, from exercising their lawful right to demonstrate.  The police have simply directed their efforts at the wrong target.

Right to demonstration and duty to keep the peace

14.  The law on the right to demonstration has been settled by the Court of Final Appeal decision in Leung Kwok Hung, supra.  The right of peaceful assembly involves a positive duty on the part of the Government to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully.  It is not an absolute obligation because the Government cannot guarantee that lawful assemblies will proceed peacefully and “it has a wide discretion in the choice of the measures to be used”.  What are reasonable and appropriate measures must depend on all the circumstances in the particular case.  Para 22 at p 249.  Where appropriate, these circumstances would include Hong Kong’s density of population and its relatively narrow streets and roads in urban areas.  Para 23 at p 250.  A demonstration may give offence to those with opposing views and demonstrators must be able to proceed without fear of physical violence by opponents; such a fear would have a deterrent effect.  In a democracy, the right to counter-demonstrate cannot extend to inhibit the exercise of the right to demonstrate.  Para 24 at p 250. 

15.  Alongside these constitutional rights to freedom of speech and freedom of demonstration, which carry with them the positive duty on the part of the Government to take measures to enable lawful assemblies to take place peacefully, is the police’s duty to keep the peace.  Indeed, section 10(a), (c), (e) and (g) of the Police Force Ordinance (Cap 232) expressly provide that the duties of the police force shall be to take lawful measures for preserving the public peace, preventing injury to life and property, regulating assemblies in public places and preserving order in public places.  It is self-evident that these are also important matters involving directly or indirectly the constitutional and other rights of members of the public.

16.  Striking the right balance between the Government/police’s duty to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully and the duty to preserve the public peace (and other ancillary matters) is no straightforward matter, and lies at the heart of this case.  As the facts of this case demonstrate, this is by no means an easy task.  Indeed, it is an unenviable and thankless one.

Laporte and Austin

17.  In this regard, Mr Harris has referred the Court to a number of authorities, with a view to illustrating the limits of the police’s power in terms of keeping the public peace.  They include Beatty v Gillbanks (1882) 9 QBD 308 (a well-known case involving the march of the procession of the Salvation Army and the counter-march of the “Skeleton Army” procession); Redmond-Bate v Director of Public Prosecutions [1999] 163 JP 789 (concerning a woman preaching from the steps of Wakefield Cathedral) and Plattform ‘Ärzte für das Leben’ v Austria (1991) 13 EHRR 204 (anti-abortion demonstrations and disruption attempts by pro-abortionist groups).  As relevant as these authorities are to the issues under discussion, they must be read subject to the latest cases of R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 and Austin v Commissioner of Police of the Metropolis [2008] QB 660 (CA) and [2009] 2 WLR 372 (HL), to which Mr Gerard McCoy SC (Ms Vinci Lam with him), for the respondent, has very helpfully drawn the Court’s attention.

18.  In Laporte, the claimant was a passenger on a coach travelling from London to a protest demonstration at an airbase in Gloucestershire.  The defendant chief constable had information that passengers on three coaches from London (including the one the claimant was riding on) were likely to cause a breach of the peace at the demonstration.  Police officers were therefore instructed to intercept the coaches before they reached their destination to search the coaches and the passengers.  The constable also directed that they were not to be arrested at that particular time to prevent a breach of the peace which he did not consider then to be imminent.  After their search, the police officers concluded that some, but not all, of the passengers intended to cause a breach of the peace at the demonstration.  The claimant was not one of those with such intention.  The officers ordered all passengers to return to the coaches and the police escorted the coaches back to London so as to prevent any passengers from disembarking until they arrived there.  The claimant contended in judicial review proceedings that the defendant’s actions constituted unlawful interference with the exercise of her rights of freedom of expression and assembly protected by articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

19.  The House of Lords decided the case against the chief constable on the ground that he himself did not consider that a breach of the peace was imminent when he ordered the coaches back to London.  The Law Lords made important observations, albeit not strictly required for deciding the case, on the scope of the police power to prevent a breach of the peace.

20.  In the subsequent case of Austin, a large group of demonstrators, some but not all of whom were violent and disorderly, converged on Oxford Circus.  The police had been aware that a protest demonstration was planned, but its organisers had refused to co-operate with the police or to inform them in advance of the plans.  The police therefore imposed a cordon around the area to enclose thousands of people who could leave only with their permission.  The first claimant was a demonstrator while the second claimant was on his business for his employer when he got caught up in the demonstration.  Both were detained for many hours having been refused permission to leave.  They brought claims against the Commissioner of Police for damages for false imprisonment and for breach of their rights to liberty guaranteed by article 5 of the European Convention.  They failed at first instance and their appeals to the Court of Appeal were dismissed.  Applying the obiter observations made in the earlier case of Laporte by the House of Lords, the Court of Appeal decided the appeals by reference to the circumstances under which the police could, for the purpose of preventing an imminent breach of public peace, take preventive steps that would have the effect of interfering with the freedom and liberty of innocent people.  Dissatisfied with the Court of Appeal’s decision, the first claimant took her case to the House of Lords.  The only issue raised before the House of Lords was whether the fundamental right granted under article 5 of the Convention could be curtailed in the interests of public safety or the protection of public order.  The appeal did not deal with the question of the police power to take preventive measures against a threatened breach of the peace.  The Court has been given to understand that the case has been taken to the European Court of Human Rights for final adjudication.  For our present purposes, the Court of Appeal’s judgment (given by Sir Anthony Clarke (now Lord Clarke) MR, for the Court) is the more relevant judgment.

Legal principles on the power and duty to keep the peace

21.  It would unnecessarily burden this judgment by quoting extensively from these leading cases.  Rather, basing myself on these cases, I would attempt to summarise what I perceive to be the applicable principles in the type of situation under discussion.

22.  It is convenient to start with the concept of a breach of the peace.  There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance: R v Howell (Errol) [1982] QB 416, 427E; Laporte, at p 123, para 27.

23.  Every constable enjoys the power and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occurring in his presence.  Importantly, that power and duty extend to any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur.  Laporte, at p 124, para 29.  In this context, “about to occur” is determined by the test of “imminence”, not reasonableness.  Laporte, at pp 124 (para 30), 134-135 (para 62), 136 (para 66), 147 (para 101), 152 (para 114) and 160-161 (para 141).

24.  The power and duty to prevent any breach of the peace occurring in his presence, or any breach of the peace which is likely to be renewed, or any breach of the peace which is about to occur apply not only to every constable, but also to every citizen.  Albert v Lavin [1982] AC 546 (an off-duty constable taking pre-emptive action to prevent an imminent breach of the peace caused by a defendant who had jumped a bus queue).  The corollary of the duty on the part of a citizen to seek to prevent a breach of the peace is that where necessary, a police officer is entitled to call upon a citizen for his or her active assistance in suppressing a breach of the peace.  If, without any lawful excuse, he or she refuses to give it, the citizen is guilty of an offence.  Archbold Hong Kong 2009, para 20-306; Laporte, at pp 141 to 142 (para 83).

25.  If a police officer (or indeed any citizen) reasonably apprehends that a breach of the peace is “imminent” (or “about to occur”), his duty is to take reasonable steps to prevent it.  And once that stage is reached, but not before, all the various options – arrest and detention, restraint, warning, etc – become available and the officer can choose the option or combination of options that best fits the circumstances.  Laporte, at pp 134-135 (para 62) and 136 (para 66).

26.  The requirement of “imminent” means that the event must be going to happen in the near future.  This does not mean, however, that the police officer must be able to say that the breach is going to happen in the next few seconds or next few minutes.  That would be an impossible standard to meet, since a police officer will rarely be able to predict just when violence will break out.  The protagonists may take longer than expected to resort to violence or it may flare up remarkably quickly.  There is no need for the police officer to wait until the opposing groups “hove in sight” before taking action.  That would be “to turn every intervention into an exercise in crisis management”.  Laporte, at p 137 (para 69).  The court must guard against the danger of hindsight, and the judgment of the officer on the spot, in the exigency of the moment, deserves respect.  Laporte, at pp 132 (para 55) and 149 (para 106).

27.  Prima facie, the steps to be taken to prevent a breach of the peace should be directed against those who are about to breach it.  However, the law allows a police officer to take steps, not against those who are about to breach the peace, but against others who are not, in exceptional circumstances.  These exceptional circumstances have been classified differently into two or three categories.

28.  First, where the imminent breach of the peace by others is provoked or otherwise caused by a person, whose action is not only deliberate, but also interferes with the rights or liberties of others, as is likely to provoke violence.  Laporte, at p 162 (para 145).

29.  Secondly, a police officer is entitled to take action to prevent an imminent breach of the peace by others if their action is provoked or otherwise caused by a person whose conduct, though technically lawful or not involving any interference with the rights or liberties of others as such, is nonetheless “outrageous” (Laporte, at p 139, para 75), “unreasonable” (Laporte, at p 154, para 120) or “provocative” (Laporte, at p 145, para 96 and at pp 162-163, para 146).

30.  The demarcation between these two categories of exceptional circumstances is not entirely clear, and the classification of cases into these two different categories is not uniform.  Nonetheless, under either of them, the law permits a police officer to take action to prevent an imminent breach of the peace against somebody other than those who are about to breach the peace.  Cases falling within these two categories include Wise v Dunning [1902] 1 KB 167 (making gestures highly insulting to Roman Catholic Liverpudlians); Humphries v Connor (1864) 17 ICLR 1 (it was a valid defence to an action for assault against a constable for removing from the plaintiff a party emblem consisting of an orange lily that the plaintiff was wearing when walking through the streets of Swanlinbar, Co Cavan, which was calculated and tended to provoke animosity on the part of some Irishmen); Albert v Lavin, supra (jumping a bus queue); Nicol v Director of Public Prosecutions (1995) 160 JP 155 (disruption of an angling competition); Steel v United Kingdom (1998) 28 EHRR 603 (disruption of a grouse shoot and invasion of a motorway construction site) and Chorherr v Austria (1993) 17 EHRR 358 (two demonstrators, with large placards affixed to their rucksacks proclaiming “Austria needs no fighter plane” blocking the view of, and arousing increasingly loud protest from, spectators of a march past).

31.  Thirdly, the law allows and indeed requires, as a matter of necessity, a police officer to take steps that are reasonably necessary to prevent a breach of the peace that is imminent against a citizen who is not about to breach the peace and who does not fall within the previous two categories, if the police officer reasonably believes that there are no other means whatsoever to prevent the imminent breach of the peace, even though to do so would entail curtailment of the lawful exercise by the citizen of his fundamental rights, such as the right to demonstration or the right to liberty.  Laporte, at pp 139 to 142 (paras 78 to 84), at pp 146 to 147 (para 98), at pp 155 to 157 (paras 123 to 128) and at pp 163 to 164 (paras 147 and 148); Austin (CA), supra, at pp 676 to 683, paras 23 to 45, particularly paras 35 and 43.

32.  In this last category of cases, it cannot be over emphasised that wherever possible, the focus of preventive action should be on those about to act disruptively, not on innocent third parties.  Laporte, at p 164, para 149.  In order to resort to this last category of exceptional power, the police must have made proper and advance preparations to deal with the breach in question and cannot rely on an imminent breach of the peace caused by their own failure to make such preparations to justify taking steps against innocent third parties.  The action that may be taken must be reasonably necessary and proportionate.  Austin (CA), supra, at pp 680 to 681, para 35.

33.  In relation to this last category, this is how the Court of Appeal in Austin has distilled the relevant principles from the obiter observations made by the House of Lords in Laporte which the Court of Appeal has applied to the facts in Austin (at pp 680-681 and 683):

“35.   As we read the speeches of Lord Rodger and Lord Brown they give some support for the following propositions: (i) where a breach of the peace is taking place, or is reasonably thought to be imminent, before the police can take any steps which interfere with or curtail in any way the lawful exercise of rights by innocent third parties they must ensure that they have taken all other possible steps to ensure that the breach, or imminent breach, is obviated and that the rights of innocent third parties are protected; (ii) the taking of all other possible steps includes (where practicable), but is not limited to, ensuring that proper and advance preparations have been made to deal with such a breach, since failure to take such steps will render interference with the rights of innocent third parties unjustified or unjustifiable; but (iii) where (and only where) there is a reasonable belief that there are no other means whatsoever whereby a breach or imminent breach of the peace can be obviated, the lawful exercise by third parties of their rights may be curtailed by the police; (iv) this is a test of necessity which it is to be expected can only be justified in truly extreme and exceptional circumstances; and (v) the action taken must be both reasonably necessary and proportionate.

36.    While it cannot we think be said that Lord Mance expressly supports those propositions, they seem to us to be consistent with his views.  They are not inconsistent with the speech of Lord Carswell and Lord Bingham did not address these questions at all.

…

43.    In these circumstances we read Lord Rodger, Lord Brown and Lord Mance as being of the view that the approach identified in the five propositions set out at para 35 above is not inconsistent with the Strasbourg jurisprudence.  They are in our opinion consistent with it.  Moreover, provided that it is recognised, as their Lordships each did, that the primary focus should be on the wrongdoers and not innocent demonstrators or those who are not demonstrators but are present by chance, and that, save in a case of absolute necessity, the right of freedom of expression under article 10 and the freedom of assembly and association under article 11 must be protected, the propositions seem to us to represent a fair and reasonable balance between the interests of all those involved.”

34.  Thus far I have been describing the law from the perspective of the common law.  Where the police action involves curtailment of an individual’s constitutional rights, such as the right to demonstrate and the right to liberty, the proportionality test applies.  See, for instance, Leung Kwok Hung, supra, at pp 252-254, paras 33-38.  Legitimate aim would seldom feature in applying the test because prevention of an imminent breach of the peace must be a legitimate aim.  The question always lies in whether the action, if warranted to be taken in the first place, is no more than is reasonably necessary and is proportionate.  If the third party is himself (culpably) responsible for the imminent breach of the peace in the first place (ie the first two categories discussed above), that would certainly colour to a significant extent the application of the test.  After all, article 42, the last article in Chapter III of the Basic Law which sets out the fundamental rights and duties of the residents, specifically requires residents and others in Hong Kong to abide by the laws in force in the Hong Kong Special Administrative Region.  If, on the other hand, the third party is an innocent one (ie the third category), the requirement under the proportionality test that the restriction must be no more than is necessary and proportionate accords with the common law’s own requirement that the steps that a police officer may take must be reasonably necessary and proportionate to prevent the breach of the peace. 

35.  Human rights law additionally requires that the power to take steps must be “prescribed by law”.  This requirement is reflected in our jurisdiction in article 39(2) of the Basic Law which provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted “unless as prescribed by law”.  I will return to this matter later.  For present purposes, I need only point out that the European Court has held that the common law concept of “a breach of the peace” is sufficiently certain to meet the requirement of “prescribed by law”: Steel v United Kingdom, supra.

36.  For the sake of completeness, I should add that the police failed at the first hurdle in Laporte in its attempt to justify its action of turning back the coaches to London for the short reason that the chief constable in charge of the operation did not in fact feel that an imminent breach of the peace was about to take place when the order was given to turn the coaches back to London.  On the other hand, in Austin, the Court of Appeal found that the police were justified to impose a cordon around the small area in Oxford Circus enclosing thousands of demonstrators and innocent passers-by because an imminent breach of the peace was reasonably believed and the police reasonably believed that there were no other means whatsoever to prevent the imminent breach, they having ensured that proper and advance preparations had been made to deal with such a breach.

Facts and evidence in present case

37.  I now apply these principles of law to the facts of the present case.  The applicant herself has filed three affirmations.  The first two were filed to verify the facts alleged in the Form 86A and the amended Form 86A.  The third one was filed in reply to the evidence filed by the Commissioner.  On behalf of the Commissioner, no less than 16 affidavits or affirmations have been filed.  The deponents were all police officers involved directly in the events under consideration.

38.  Although there are various areas of fact in which there are disagreements, the applicant has chosen not to apply for leave to cross-examine the Commissioner’s deponents.  This is because most, if not all, of these disagreements are not material to the real issues between the parties, and the applicant, through Mr Harris, has been quite prepared to prosecute her challenge on the basis of the evidence proffered on behalf of the Commissioner.  It is on that basis that I will proceed to apply the legal principles to the facts of the present case.

An imminent breach of the peace

39.  The first real issue here is whether the police reasonably believed that there was an imminent breach of the peace when they decided to remove the applicant (and her fellow demonstrators) from the scene.  The decision to remove was implemented by, first of all, herding the group of demonstrators from where they were to inside the buffer zone.  According to the evidence which I accept, taking them to the buffer zone was only meant to be a transitional step, because the buffer zone was never intended to be used by demonstrators in the first place.  The aim of taking them to the buffer zone was to remove them from the scene altogether by employing a police van which was nearby.

40.  The police officers who filed evidence on behalf of the Commissioner were of one voice.  They all said that there was an imminent breach of the peace.  They gave vivid descriptions of the situation on the ground.  Thus Chief Police Inspector Tommy Tang described in his affirmation dated 9 February 2009 the following scenes:

“6.     The red T-shirt people reacted differently.  Some of them appeared frustrated but many others were angry.  I heard one or two of them blame the Applicant for stirring up trouble and provoking the emotion of the crowd at a time when they were celebrating the Olympic event.  It did not take longfor them to turn hostile towards the Applicant’s group.  They scolded and blamed the Applicant and her associates for being anti-China.  More and more red T-shirts joined in and among them were two who spoke Putonghua.  They acted aggressively towards the Applicant’s group.  Police officers stepped in to calm them down.  I kept reporting the situation to DCR.  Many police officers were deployed to assist in the protection of the Applicant as over the two and a half hours from around 07:15 hrs to 09:45 hrs, the increase in the number of pro-torch relay supporters and pro-China supporters had drastically increased to such as extent that movement on the pavement area was virtually impossible.  The Applicant’s group was essentially hemmed in by this crowd whose emotions were growing stronger and stronger as the time neared the commencement of the Torch Relay and as the Applicant showed no signs of toning down her demonstration.  It was clear to me from the attempts of the crowd to clash their flag poles with that of the Applicant’s that this ‘thinly veiled’ threatening behaviour was in danger of getting out of control.  Police officers at the scene were having difficulties in providing an effective safe bubble around the Applicant and I felt that a disaster was imminent had anyone fallen to the ground.

7.      I saw a man who apparently was pro-China dash towards the Applicant from my position about 5m away.  As it looked like he was trying to either hit the Applicant or to grab her Snow Mountain Lion flag, he was initially repelled by a PONT officer, later identified as CIP CHEUNG Man-ching, and then pushed towards my direction by uniformed officers.  After the man had been pushed away, these officers retreated back to provide protection to the Applicant.  At this juncture I stepped forward with one of my Sergeants and a constable and stopped the male.  There were several options I thought that could be applied in dealing with this man including arrest action.  I informed DCR and related the incident to Superintendent MA Chi-kin who was the liaison officer with Crime units.  A very short while later I was informed to hand the incident over to the Incident Investigation Team on stand by at YMT Police Station in order for them to investigate the incident and classify it appropriately.  I then directed my officers to arrange to take this male, later known as LI Jian Hui, to the Incident Investigation team.

8.      At almost the same time, an unknown man came to me and blamed police for allowing the Applicant’s group to demonstrate.  I explained to him that everyone had the right of assembly and to express their views, so long as there were no breach of the law or public peace.  This man stood in front of police and blocked us from moving.  He said he would not give in unless police removed the Applicant’s group.

9.      I took it upon myself at this time as the emotion of the red T-shirt intensified and their aggressive behaviour was likely to escalate, to talk to the Applicant and LAU and advised them to leave immediately.  However, LAU refused to leave, saying that they had the freedom of assembly and expression.  I requested further reinforcement and PTU officers and crime officers to surround the Applicant, LAU and the foreigners to protect them, for by then the uproar of the crowd against their pro-Tibet stance was likely to trigger an imminent attack on them.  I informed DCR of the situation.  But within minutes, the crowd was losing control.  They shouted at the Applicant’s group abusively and called them “running dogs” and used their China flags to hit the Snow Mountain Lion flag.  They also pushed and shoved the Applicant’s group and the safety of the Applicant’s group was at stake.  If the Applicant’s group continued to remain there, it would pose danger not only to them, but to the general public as well as it was evident then that a breach of the peace had occurred and it could escalate into a violent situation at any time.  What’s more, police officers who were trying their very best to protect the Applicant’s group were sandwiched and they were also at risk of being attacked by the red T-shirt people.”

41.  A junior police officer, PC Pang Po Yi, gave the following description in her affidavit dated 9 February 2009:

“4.     Around 0910 hrs, several hundred people, including different parties, were congregated along Parklane Boulevard.  Different parties such as Chinese students of Hong Kong University of Science and Technology were waving Chinese National Flags, also, Kelly Chan’s fan club, holding flags and shouting.  Meanwhile, the Applicant, surrounded by about 30 journalists and many police officers, waved her Snow Mountain Lion flag at the crowds.  After seeing the Applicant’s actions, the pro-China supporters became angry and clashed the Applicant’s flag by using their Chinese National flag poles.  The pro-China supporters shouted abusive words and pushed towards the Applicant.  Worried the scene was out of control, Sergeant 46819 led about six of my colleagues and I to form a handgrip around the Applicant and about three of her friends in order to separate the supporters and the Applicant and about three of her friends.  At the same time, several pro-China supporters tried to push through to the Applicant by shoving our handgrip.  Some colleagues advised the Applicant to leave so as to protect herself, however, the Applicant apparently refused this request.  The scene became more chaotic as more supporters shoved us towards the Applicant.  I felt unsafe by the violent pushing.  Soon I became aware that a decision to remove the Applicant had been made and that the Applicant agreed to leave the location.  The Applicant and her friends were escorted away by the police and moved to the sterile area (buffer zone).”

42.  Senior Superintendent of Police So Kam Sing, who made the removal decision, recounted his thinking process in his affirmation dated 9 February 2009 as follows:

“40.   At around 09:44 hrs, I was informed that other pro-relay supporters were arriving and were now confronting the Applicant’s group.  It was apparent to me from reports that the Applicant’s group numbering about nine persons was enclosed in a protective bubble formed by police officers surrounded by a seething mass of pro-Torch Relay and pro-China supporters.  Constant requests for more police support were then coming in from both the Uniformed and Crime officers on the ground.  I deployed the Route Response Team from PTU B2 platoon on Haiphong Road to assist.

41.    At about that time, members of the Hong Kong Confederation of Trade Unions who had gathered on Salisbury Road outside the Peninsula Hotel were preparing to conduct their ‘shadow torch relay’ along the pavement areas of the Torch Relay route in order to highlight their own causes.  This too was a delicate situation for me to analyse as I had genuine concerns that such a movement along the very congested and overcrowded pavement areas might compromise public safety, as it would be nearly physically impossible for a person to run through the crowds without pushing their way through and thus potentially causing injuries.  I thus tasked the Assistant District Commander of Crime Yau Tsim to liaise with LI Chuk-yan, the leader of that group to consider an alternative route that would similarly achieve their aims.  I had also received reports that pro-torch relay supporters positioned along Salisbury Road were also then converging on L1’s group at their location to fervouristically wave National Flags.  I was becoming concerned that it was developing into a potentially confrontational situation.

42.    In addition to the sources of potential conflict that were then maturely developing, the pavements had become so congested that spectators were then spilling onto the road surfaces of the access roads feeding into Nathan Road.  These roads were not due to be closed until a time nearer to the commencement of the Torch Relay in order to maintain normal traffic flow for as long as possible but I was then facing requests for the traffic duties to begin the much earlier closure of these roads to prevent traffic and pedestrian conflicts caused by the sheer number of members of the public who had turned up to see the relay.  Further instructions were thus passed to rail district police to change all MTR exits along Nathan Road to ‘In’ only in a bid to stem the tide of supporters arriving in the area.  Extra manpower from the Emergency Unit Kowloon West Quick Reaction Team was deployed to assist.

43.    Information was then being received that the situation around the Applicant was escalating and was in imminent risk of spiralling out of control.  I was under no illusion from the reports coming in describing the scene and aggressive actions that a Breach of the Peace was then imminent.  Supporters of Kelly Chan (陳慧琳) were also reported as joining the Pro-torch relay supporters in their action directed against the Applicant as the location was along the part of the route that Kelly would run as a Torch Bearer.

44.    At approximately 09:50 hrs I passed down the instruction that given that a breach of the peace was imminent and that the safety of not only the Applicant and her group was at risk of being compromised but also of the police duties who were protecting her and also members of the public who were at that location as well, the Applicant and her group needed to be removed from the immediate danger to a safe location.”

43.  The applicant gave the following account in her amended Form 86A:

“40.   Shortly after 9:30 a.m. the Applicant and Michael Brazel were joined by seven other demonstrators (the Applicant and the other demonstrators are hereafter collectively referred to as “the Demonstrators”).  Meanwhile, the number of Counter-demonstrators pressing against the Demonstrators and waving the Chinese national flag swelled to about 50.

41.    About twelve police officers (including Sgt 46819, PC 4977, PC 5334, PC 53557, WPC 5219, WPC 5579, and WPC 4274) then formed a human chain around the Demonstrators.  Despite this, the Counter-demonstrators continued to hit their flag poles against the Demonstrators’ flag poles, wave their flags in the Demonstrators’ faces, and shout insults and obscenities.  There were however at this stage no attempts by the Counter-demonstrators to use direct physical violence against the Demonstrators.

42.    The only occasion when a Counter-demonstrator attempted to use direct physical violence against the Applicant was between 9:30 a.m. and 9:45 a.m. when a Chinese man in a white shirt tried to force his way through the police and tried to lunge at the Applicant.  He was stopped by the Police in time before reaching the Applicant and was arrested and taken away from the scene.  Part of this incident was recorded on the video footage taken by the Guardian News and Media Limited, which is exhibited to the Applicant’s supporting affirmation.”

44.  It is plain from these descriptions that the police officers and the applicant’s group of demonstrators were greatly outnumbered by the counter-demonstrators.  Feelings and emotions were running high as the applicant’s cause was, rightly or wrongly, perceived by many as “anti-China” and disruptive of the first ever hosting of the Olympic Games on Chinese soil.  Abuses and insults were shouted and people were using flags and flag poles to interfere with the demonstration of the applicant’s group.  The opposite sides were kept apart by the police officers present who had to form a protective bubble around the applicant’s group to protect them from the opposite demonstrators.  The location was extremely crowded with people.  The numerically superior counter-demonstrators were ever pushing against the human cordon line formed by the police officers.  The counter-demonstrators have been estimated from at least one hundred to several hundreds in size, whereas there were only tens of police officers present to protect the applicant’s group.  The evidence was that the police officers present were not only apprehensive of the safety of the applicant’s group but also their own safety as well as the safety of other innocent members of the public who were simply there on the pavement, waiting to watch the torch relay.  Bearing in mind the definition of a breach of the peace[1], and mindful of the respect that must be had to the judgment of the police officers on the ground and of the danger of hindsight, I am of the firm view that the police had reasonable grounds to believe that there was an imminent breach of the peace. 

45.  As already pointed out, ‘imminent’ in the present context simply means the near future, but not necessarily the next second or minute.  The decision of what constitutes imminent has to be judged in the context under consideration and the absence of any further opportunity to take preventive action may thus have relevance.  Laporte at p 161, para 142.  As counsel submitted, the police were faced with an operational dilemma of intervening too early (thus interfering with the right to protest) and intervening too late (thus entailing breach of the peace, injury to people or property). 

46.  It is true that when the applicant, with the protection of the police, demonstrated on the same afternoon on Hong Kong Island, no breach of the peace broke out.  Mr Harris submits that is a strong indication that a violent attack against her in the morning was unlikely.  In my view, that is a typical attempt to use hindsight to determine whether the police’s action in the morning was justified or not.

47.  The imminence of a breach of the peace persisted whilst the applicant and her group were being herded slowly from where they were into the buffer zone.  The evidence clearly described that the police had an extremely hard job to do in herding the group into the zone.  The pavement was crowded with people.  Counter-demonstrators were pushing against the protective bubble, shouting abuses and using their national flags or flag poles to hit at the Snow Mountain Lion flag or flag pole carried by the applicant.  At one stage, as described, a lone man tried to break through the protective cordon and snatch the Snow Mountain Lion flag from the applicant.  The police officers, according to the evidence, were greatly outnumbered by the counter-demonstrators.  The presence of several dozens of reporters and media people did not make the police’s task any easier.

48.  It must be pointed out that by this stage, the decision to remove had already been made, and the group was being herded towards the buffer zone.  The significance of what happened to the group whilst they were on their way lies in the fact that the imminence of a breach of the peace continued after the initial decision was made, so that there was no reason to revoke or re-consider the decision after it had been made.

49.  After the group had reached the clear zone, they were protected to some extent by the metal barriers lining the boundary of the zone.  However, according to the evidence, the counter-demonstrators kept pushing against the metal barriers and used their national flags and flag poles in a dangerous manner in an attempt to prevent the applicant and her group from continuing with their demonstration inside the clear zone.

50.  Again, it must be remembered that by the time the applicant’s group reached the clear zone, the decision to remove them from the scene altogether had already been made.  The important thing is that, on the evidence, the imminence of a breach of the peace persisted even after the applicant’s group had reached and was remaining within the clear zone.  That the applicant did not feel that this was so is quite irrelevant because the relative calm that she enjoyed inside the buffer zone was at the expense of those tens of police officers who were holding and counter pushing the metal barriers to prevent the counter-demonstrators from intruding into the clear zone to take further actions against the applicant’s group.

51.  In any event, it must also be remembered that the clear zone was never meant to be a place for holding demonstrations.  The applicant and her group had no right to carry on any demonstration within the clear zone.  By that time, even if (assuming) the imminence of a breach of the peace had momentarily subsided, the only choice left would merely be either to remove the applicant’s group from the scene altogether by the police van (which was the police’s plan) or to release them back to the pedestrian pavement where they would again be subjected to the counter-demonstrators’ harassment and threat.  One thing that is clear is that the applicant’s group was never intended to be within the clear zone for any moment longer than was necessary to carry out its removal from the scene, because the clear zone was delineated to serve other more important purposes, particularly when the torch relay was about to start within minutes.  A “clear” clear zone was necessary to the police to maintain law and order and exercise proper crowd management.

52.  Mr Harris for the applicant vaguely argues that whilst in the normal case, no one has a right to demonstrate within the clear zone, since the applicant and her group were invited to enter the buffer zone, they had the implied permission of the police to demonstrate there.  The argument must be rejected.  First, it is plain from the evidence that it was never the intention of the police to invite the applicant and her group to demonstrate within the clear zone.  Taking them inside the clear zone was only a transitional step so as to effect their removal from the scene.  Secondly and more importantly, the applicant and her group were never under any illusion that they were being invited to the clear zone to demonstrate there.  Paras 45 and 46 of the amended Form 86A clearly say that the applicant knew that the intention of the police was to “get them behind the barricade and get them into the van”, and this the police did by first herding the demonstrators into the clear zone as described in para 46 of the amended Form 86A.

53.  For those reasons, the argument of implied permission must be rejected.  And the fact that the applicant and her group had no right to demonstrate within the clear zone must be firmly borne in mind when considering what happened in this case after the demonstrators had reached the clear zone, including the (disputed) allegations that the police had wrongfully interfered with the applicant in her attempts to demonstrate with the Snow Mountain Lion flag and placard whilst inside the clear zone and/or standing on a flowerbed inside the zone.  As the applicant and her group had no right to demonstrate within the clear zone, the police’s (alleged) actions to prevent the applicant from demonstrating within the zone in the manner she preferred does not form any real issue in the present case.

Taking steps against the applicant rather than the counter-demonstrators

54.  Rather, the next important issue is whether the police were justified in taking steps directed, not against the counter-demonstrators who were behaving aggressively, but at the applicant and her group who had been acting lawfully and peacefully in the exercise of their constitutional rights to demonstrate, no matter how objectionable some may find their cause and actions to be on the day in question, in order to prevent the imminent breach of the peace.

55.  As discussed, the law requires that, wherever possible, the focus of preventive action should be on those about to act disruptively, not on innocent third parties.  But exceptionally, preventive action can be taken against third parties.  In the above discussion, I have, for the sake of convenience of discussion, mentioned three so-called categories of exceptional circumstances, although I need emphasise again that they are by no means clear-cut categories and the categorisation itself is far from universal.

(i)      1^st category

56.  I do not think the applicant and her group fall within the category of demonstrators who, by interfering with the rights or liberties of others, are likely to provoke violence, thereby justifying preventive action against them (instead of against those who are about to be provoked to violence).  The applicant’s demonstration was lawful, peaceful and practically static, save for the time when her group was herded by the police into the buffer zone.

(ii)     2^nd category

57.  The next category concerns those whose action was “outrageous”, “provocative” or “unreasonable”, although it did not involve any interference with the rights or liberties of others as such.  Whilst at the end of the day, given my conclusion in relation to the third category, whether the applicant falls within this category does not really matter, I would nonetheless state my view on this question.

58.  On the very peculiar facts of the present case – I have in mind the unique and peculiar circumstances under which the protest demonstration was held, I take the view that the demonstration was highly provocative, and thus falls within the present category.  As mentioned, on the facts and evidence, the Olympic torch relay held in Hong Kong on 2 May 2008 was a highly significant event.  The overall background was Beijing’s hosting of the Olympic Games in 2008.  It was not only a first for a capital but also a first for China as a country.  Rightly or wrongly, it was perceived by many – including many Chinese, whether on the Mainland, in Hong Kong or overseas – as an acknowledgement of the Chinese people as a great proud people and of China both as a great ancient nation with an illustrious history as well as a modern power coming of age in the world arena.  Locally, the enthusiasm and support for Beijing’s hosting of the Games in the summer of 2008 in general (in fact Hong Kong hosted a small part of the Games in the New Territories), and for the Hong Kong leg of the Olympics torch relay in particular, was more than sufficiently demonstrated by the huge number of onlookers who filled the streets of Hong Kong on 2May 2008 to witness the historic event.  As mentioned, just for the section of the relay going past the Yau Tsim District, 52,000 to 100,000 people are estimated to have turned up to witness the event.

59.  Senior Superintendent of Police So Kam Sing stated in para 22 of his affirmation that according to his observation, “there was a real sense of pride amongst [the torch relay] supporters and a fervent sense of patriotism for China.  Thousands of supporters turned up waving the National Flag and wearing the colour red as conspicuously as they could.  [They] were showing up to show and demonstrate to the world their support and loyalty for China”.  In my view, this is a fair observation, which was fully borne out by the TV news footages placed before the Court as part of the evidence.

60.  Another relevant background matter is that the earlier legs of the torch relay outside of China had been dotted with disruptions and protests.  These disruptions escalated in scale as the torch relay reached one city after another – including London, Paris and then San Francisco.  Very naturally, many protest groups had made use of the opportunity to stage protests against the Mainland Government or its policies.  Many of the protests were peaceful and lawful, but a minority of them resorted to disrupting the torch relay to promote their own causes.  The disruption of the earlier international legs of the relay was widely reported in the news in Hong Kong.  Scenes of invaders trying to snatch the torch naturally irritated those who supported the event.  When the relay took place in Hong Kong on 2 May 2008, it was only about three months away from the opening of the Games in Beijing.  It was the first time that the Olympic flame reached Chinese soil since the relay started.  As Mr McCoy submitted, “National pride was pushed to the highest.  The general atmosphere in Hong Kong was ecstatic and the mood of the general public ebulliently proud”.  Significantly, counsel observed, “some people even regarded it as their duty to [take steps to] protect the torch whilst it was in Hong Kong”, like what some overseas Chinese had done during the subsequent international legs of the relay.

61.  As Mr McCoy also submitted at the hearing, conduct innocuous on one day in one set of circumstances may be highly inflammatory on another.  On 2 May 2008, Hong Kong, as part of China and a (predominantly) Chinese community, shared in that day of national unity and pride of the Chinese people.  The crowd that had gathered on the streets to witness the historic torch relay was in a festive, jubilant mood.  It was in those circumstances and against that sort of background that the applicant and her group staged their protest demonstration, shouting repeatedly slogans like “Free Tibet, free China” (in English) and waving the Snow Mountain Lion flag, amongst the exulted crowd.  Whatever actual meaning the flag may carry, it was perceived by many as the symbol of a separatist or “splitist” movement when, not only under Hong Kong or Mainland law but to many Hong Kong Chinese, Tibet, like Taiwan, is an inviolable part of China.  Again, the slogan “Free Tibet, free China” may mean different things to different people, but to many it did convey a meaning which was quite at odds with the underlying national pride and patriotism that many were experiencing on 2 May.

62.  The Court, it must be emphasised, is not here to pass judgment on the applicant’s cause or the Tibetan movement.  Nor is it here to decide whether the general public has misunderstood what the cause is all about.  All the Court is concerned with is whether, given the unique and peculiar background, the applicant’s protest demonstration on the day in question was so provocative to the crowd that in order to prevent an imminent breach of the peace, the police were justified in taking action against the applicant’s group, rather than the crowd who was about to be provoked to breaching the peace.  Whilst Lord Mance talked of deliberate provocation (Laporte at p 162, para 146), Lord Rodger preferred to describe the category of cases under discussion as those where the action in question was almost certain to provoke hostile and violent reactions (p 139, para 77).  In my view, whether one describes the applicant’s action as “provocative”, “outrageous” or “unreasonable” does not really matter; these words convey the same or an essentially similar meaning in the present context.

63.  Incidentally, I wish to emphasise here that these adjectives are only used in a relatively sense; no moral judgment is involved in using them.  Something can be most outrageous to a particular crowd even though in absolute terms, the crowd may well be wrong in its understanding.  One is not concerned with passing judgment here, moral or otherwise; one is concerned with what options or alternatives are open to the police, whose primary duty is to preserve the peace.  The police must be entitled to take the crowd as it is, just as they cannot choose the crowd they have to deal with.  Likewise, a protest demonstrator seeking to make use of a public event and the large crowd that it attracts to demonstrate and promote his cause must, to a certain extent, take the crowd as he finds it.

64.  The Irish case of Humphries v Connor, supra, provides a good illustration.  In that case, the plaintiff elected to walk through the streets of Swanlinbar, Co Cavan, wearing an orange lily, an action which, in that part of the country, “was calculated and tended to provoke animosity between different classes of Her Majesty’s subjects”.  Several people followed after the plaintiff “and in consequence thereof caused very great noise and disturbance”.  They threatened the plaintiff with personal violence for wearing the orange lily.  The defendant, a sub-inspector of constabulary, requested the plaintiff to remove the orange lily.  She refused, and he therefore removed it from her.  He was sued for trespass.  The Irish Court of Queen’s Bench held that on the facts pleaded by the defendant, he had a good plea and the case would go to trial and the jury would have to determine whether the sub-inspector’s action (of removing the orange lily from the plaintiff) was necessary.

65.  Some cases speak of the demonstrator in question being “deliberately” provocative.  In my view, the applicant in the present case cannot claim innocence of the likely reactions on the part of some people that her demonstration would provoke.  She actually received a death threat over the internet prior to the day in question.  She says she did not take it seriously but eventually agreed to report the matter to the police.  In any event, if she had been ignorant about the likely reactions to her intended demonstration prior to the day, she cannot possibly have had any illusion about them after her group started demonstrating on the street from about 7:30 am on the day in question.  In my view, it is really a question of semantics whether she was “deliberately” provocative.  An important thing is that she knew full well that her demonstration was highly provocative to the counter-demonstrators, regardless of her claim that she had no intention whatsoever to provoke anybody by her action.

(iii)    3^rd category

66.  In this last category, when there is no other way available to the police to maintain the peace, and if the action of the police is no more than is necessary and is otherwise proportionate, the police can take action against innocent third parties in order to prevent the imminent breach of the peace.  In other words, even assuming that the applicant’s action was not deliberately provocative, unreasonable or outrageous, if the circumstances were such that there was no other way to prevent the imminent breach of the peace, the police could take action against the applicant and her group so as to prevent the breach, so long as the police’s action was no more than was necessary and was proportionate.

67.  In my view, the police had no option but to take action against the applicant and her group.  The police officers present were outnumbered by the counter-demonstrators.  They kept asking for reinforcements, which were never sufficient to match the ever growing number of counter-demonstrators.  According to the evidence, the estimates of the number of counter-demonstrators ranged from at least one hundred to several hundreds.  All this was taking place within an extremely crowded environment, where tens of thousands of people had gathered to watch the torch relay which was about to start.  A part of the pedestrian pavement was actually cordoned off by metal barriers to form the clear zone.  People were carrying flags with long flag poles, and the counter-demonstrators were using them to shadow the applicant’s demonstration.  On top, one has the occasion itself to consider.  For the police to make an arrest, not to mention mass arrest, of the counter-demonstrators in order to keep the peace must have been a most undesirable option.  When the police officers were greatly outnumbered and their own safety was on the line, whether it was a practicable option was also in doubt.  Moreover, its effect on the counter-demonstrators and the rest of the crowd would have been highly unpredictable, particularly bearing in mind the highly unpopular cause that the applicant’s group was pursuing.  On top of all that, if the Court is correct with its earlier conclusion that in fact the action of the applicant may be described as highly provocative, justifying police intervention in the first place, in my view, the police was faced with no other practical options but to take action against the applicant and her group in order to maintain the peace.

Reasonably necessary and proportionate

68.  This leaves the question of whether the action taken by the police was nothing more than was necessary and was proportionate.  The action taken by the police was to remove the applicant and her group from the scene altogether.  The police had tried to form a protective bubble around the applicant’s group so as to enable them to carry on with their demonstration and had been met with increasing hostility from the counter-demonstrators.  In other words, the police felt that there was simply no way to separate the two sides so as to allow both to carry on with their own causes.  And once it is concluded that the police was justified in taking action against the applicant’s group, it must follow, in the circumstances of the present case, that the police was justified in removing the applicant’s group from the scene to prevent a breach of the peace.  It was no more than was necessary and was a proportionate action to take in the circumstances of the case.  As I pointed out earlier, herding the applicant’s group into the clear zone was just a first step taken to remove them from the scene.  It was never the intention of the police – and the applicant had no illusion about it for reasons explained – to allow the applicant’s group to demonstrate inside the clear zone.  In other words, allowing the applicant to demonstrate inside the clear zone, as was vaguely suggested on behalf of the applicant by counsel at the hearing, or allowing them simply to remain there, was not an alternative open to the police for present purposes.

Removing the Snow Mountain Lion flag as an alternative?

69.  Then it was suggested, very late in the day (actually half-way through Mr Harris’ opening submission on the first day of the hearing), that the police could have chosen to remove the Tibetan flag from the applicant, instead of removing the whole group from the scene.  Counsel submitted that as the crowd was provoked by the Snow Mountain Lion flag, the police could have taken the less drastic action of removing the flag from the applicant’s group so as to prevent a breach of the peace.  Removing the whole group from the scene was more than was necessary and was not a proportionate action to take.

70.  I reject the argument.  First, this was never raised in the Form 86A.  The applicant has never run an alternative case that the police would have been justified in curtaining her right to demonstrate by taking away her Snow Mountain Lion flag, but overstepped the line by actually removing the applicant and her group from the scene of protest altogether, thereby infringing her right to demonstrate.  A declaration that the police acted in excess of their power has never been an alternative case of the applicant in the Form 86A in terms of the relief sought.  Nor has this option of removing the flag from the applicant been mentioned in the body of the Form 86A as a relevant fact or matter.

71.  Even more significantly, the applicant has never in her three affirmations, the last one of which was filed and served after the Commissioner had filed no less than 16 affidavits or affirmations, mentioned this possibility of removing the flag from her as a less drastic measure that the police could and should have taken to prevent an imminent breach of the peace, by way of an alternative case to her primary case.  It should be noted that in the evidence filed on behalf of the police, it was said that there was no other way but to remove the applicant and her group from the scene of protest in order to preserve the peace.  Understandably, given what had been said and not said in the Form 86A and in the supporting affirmations, the evidence filed by the Commissioner did not deal specifically with the possibility of removing the flag from the applicant as a measure to pacify the counter-demonstrators.  Plainly it was quite impossible for the Commissioner to prove the negative by identifying all possible alternative actions and explaining why each of them was less preferable or was unworkable as an alternative.  In those circumstances, it became even more important for the applicant to raise this point of removing the flag from her in her 3^rd affirmation specifically, if it was really a point she wished to raise before the Court.  Yet not a single word was mentioned about this possibility.  Instead, one of the matters she complained about in her 3^rd affirmation was that at one stage whilst she was inside the clear zone the police prevented the applicant from using the flag to demonstrate (para 41).

72.  But not only that.  In the written submission lodged by counsel on behalf of the applicant at the direction of the Court, not a single word was mentioned about this alternative possibility of removing the flag from the applicant.  As I mentioned, it was only during the middle of leading counsel’s submission that this point was first raised.

73.  In my view, Mr McCoy for the Commissioner very rightly took as his first point a pleading objection to this belated point raised by the applicant.

74.  In any event, I reject the argument on the merits.  I accept that to a significant extent, the Snow Mountain Lion flag stood for the cause of the applicant and in the circumstances under consideration, it was a highly provocative symbol to the counter-demonstrators.  And indeed there were attempts by the counter-demonstrators to either shadow the Tibetan flag, to knock it down on the ground or even to snatch it from the applicant.  Yet it would be an over simplification of the situation to suggest that by removing the flag from the applicant, the counter-demonstration would die down and there would not be any imminent breach of the peace.  For one, it was wholly unpredictable what the applicant’s own reactions would have been to such an action.  In fact, she was demonstrating not only by means of waving the flag, but also by means of placards (one of them read: “End the CCP [Chinese Communist Party]’s Rule of Terror”).  She was shouting slogans which were taken by many to be highly provocative (“Free Tibet, free China”) on the day in question.  Whilst inside the clear zone, she stood on a flowerbed to demonstrate, shouting loudly to the counter-demonstrators. 

75.  Moreover, what really provoked the counter-demonstrators was the (perceived) implied message of separatism concerning Tibet, which many regarded as part of China, which was felt to be provocative and at odds with the national pride and spirit of unity of the Chinese people that the counter-demonstrators were feeling.  The flag simply symbolised the cause.  Removing the flag, but allowing the demonstrators to carry on with their pro-Tibet (and “anti-China”) demonstration, simply did not deal with the conflict between the demonstrators and counter-demonstrators at its root.

76.  In my view, the police could not have reasonably considered that removing the flag would defuse the situation.

Proper advance preparations

77.  In determining whether there was no other way to prevent a breach of the peace, the question of making proper advance preparations to deal with such a breach is relevant (Austin (CA), supra, at p 680, para 35).  In the present case, Senior Superintendent So Kam Sing has explained in his affirmation a very detailed plan that the police had put in place in order to maintain law and order on the day in question.  It must be remembered that the relay was a huge task and the police had many many things to occupy their mind.  The applicant’s small group of demonstrators was only one amongst many.  The smooth running of the event, the prevention of disruptive actions, the safety of the participants of the torch relay, the safety of the crowd, the traffic, the needs of the various demonstrators and protest groups, to name just a few, were all within the police’s purview.  And there were plans to deal with them.  For instance, for the demonstrators and protest groups, special designated areas had been earmarked to cater for the demonstrations and better police protection was available at those designated areas.  For reasons of its own, the applicant’s group chose not to demonstrate in the designated areas.  There were prior contacts with the known demonstration groups, including the applicant.  Police officers were present from the first moment after the arrival of the applicant and her friend at the scene at around 6:30 am to render them assistance and protection.  When the size of the counter-demonstrators swelled, the number of police officers sent to protect the applicant’s group also grew.  But there was a limit to police resources, and the police had to be wise in allocating their resources to cater for all the needs associated with the event which were as diverse as they were many.  Thus as Senior Superintendent So Kam Sing explained in para 26 of his affirmation:

“Members of [the Public Order Negotiation Team], if not already assigned to the various groups were mobilised to liaise with the protestors and encourage peaceful, non-disruptive protests.  Also, protestors were encouraged to utilise the Designated Public Activity Areas that had been established and where specific police resources had been deployed.  The appearance of so many different groups in so many different locations required me, through the DCR to re-deploy many police resources.  Aside from the many individual protestors or banners, it was estimated that there were a total of seven visibly identifiable groups of different protestors along the relay route in Yau Tsim.”

78.  The situation concerning the applicant’s group and the reaction of the counter-demonstrators was constantly monitored by the high command and re-deployment of police officers was made throughout the morning in question to increase protection to the applicant’s group.

79.  For my part, guarding against the danger of hindsight, and giving the police command its due respect, I am far from convinced that the police had not taken sufficient advance planning to deal with possible breaches of the peace associated with the applicant’s demonstration.  There were simply limits to what the police could do.

80.  As had been pointed out by the Court of Final Appeal in Leung Kwok Hung, supra, at p 249, para 22, whilst the Government has a positive duty to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully, it cannot guarantee that lawful assemblies will proceed peacefully and it has a wide discretion in the choice of the measures to be used.  And it must be firmly borne in mind that the Government’s obligation is “an obligation as to measures to be taken and not as to results to be achieved”, ibid, at p 250, para 24, citing with approval the observations by the European Court of Human Rights in Plattform ‘Ärzte für das Leben’ v Austria, supra, at para 34.

Removal and detention

81.  In the present case, the police denied that they ever arrested the applicant and her group whilst (or after) removing them from the scene.  I have no reason not to accept the police’s account.  In any event, as explained, once it became justifiable for the police to take action against even innocent third parties, the steps which the police could take might involve arresting the third parties.  After all, every citizen has the duty to prevent a breach of the peace, and a duty not to obstruct the police in executing its duty.

Prescribed by law

82.  Mr Harris has on behalf of the applicant complained that the restriction on the applicant’s constitutional rights is not “prescribed by law”.  Apparently he relies on article 39(2) of the Basic Law which requires any restriction on the rights and freedoms enjoyed by Hong Kong residents to be “prescribed by law”.

83.  I do not accept the argument.  First, this is a new point, which has never been relied on in the Form 86A.  Secondly, the legal principles that I have set out and relied on to decide the present case are common law principles that have been developed by the courts over the centuries.  They have been summarised and applied in Laporte and Austin respectively.  But they are not new principles created out of nowhere by the House of Lords and Court of Appeal.  They are based on previous decisions.  Moreover, Laporte itself was decided in December 2006.  Although different Law Lords had different ways in describing the principles, as the Court of Appeal in Austin pointed out, these different descriptions all sought to formulate essentially the same principles, which the Court of Appeal set out and applied in Austin.  Bearing in mind that the present case took place in May 2008, I do not think at that time the relevant law in Hong Kong was so uncertain and unpredictable by a reasonably competent legal advisor as to fail the “prescribed by law” requirement.

Outcome

84.  For all these reasons, I conclude that the police were justified in removing the applicant from the scene of demonstration on 2 May 2008.  Their decision to do so did not infringe the applicant’s right to hold a peaceful demonstration at the scene.  The challenge against the decision to do so therefore fails and is dismissed.  I make an order nisi that the costs of these proceedings, including any costs previously reserved, be paid by the applicant to the respondent, to be taxed if not agreed, with a certificate for two counsel.  I also order legal aid taxation in respect of the applicant’s own costs.

Postscript

85.  The Court is acutely conscious that our society is governed by the rule of law, not the rule of the mob.  And it has seriously and carefully considered whether the decision in the present case would set a wrong precedent for the future.  The Court bears in mind in particular three matters in maintaining its conclusion.  First, the relevant law and principles are reasonably clear.  The law allows, in exceptional circumstances, the police to take action against even innocent third parties in order to prevent an imminent breach of the peace.  Secondly, it is only in very exceptional circumstances that such an action by the police can be justified.  Thirdly, the events on 2 May 2008 happened against a unique background – the first ever hosting of the Olympic Games on Chinese soil, “the realisation of a 100-year dream of the country”.  The Court’s decision is made in light of those most peculiar circumstances which are unlikely to repeat themselves.  As Mr McCoy observed during argument, a similar protest in Central or Tsim Sha Tsui today would most likely fail to raise even a murmur, let alone any counter-demonstration.

86.  The dismissal of the applicant’s case does not mean that the counter-demonstrators were in the right.  Far from it.  The near-violent reactions of the counter-demonstrators, though understandable enough, must be condemned.  Everyone in our society has the fundamental right to express his or her view openly and to do so by means of peaceful, lawful demonstration if he or she so wishes, without fear of physical violence by others.  The right to counter-demonstrate cannot extend to inhibit the exercise of the right to demonstrate.  Our society allows its members to disagree, even profoundly, with each other’s views.  But such disagreement must be expressed in a peaceful manner, with a minimum standard of respect for each other as equal members of our society.  That is a hallmark of a democratic, mature society.

87.  I thank counsel for their assistance subject to this reminder: it is of great importance to the Court, in the interests of the proper administration of justice, and for the sake of fair play as well, that counsel must cite to the Court all decisions relevant to the issues before it, whether they be for or against their case.  That such an elementary principle requires reiteration by the courts from time to time demonstrates both the importance of the subject and how easily it is overlooked in practice.