SECRETARY FOR JUSTICE v. MATT JAMES PEARCE

HCMA 1078/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1078 OF 2008

(ON APPEAL FROM ESS NO. 18525 OF 2008)

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J U D G M E N T

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Introduction

1.  This is an appeal by way of a case stated made by the Secretary for Justice pursuant to s.105 of the Magistrates Ordinance, Cap. 227.  It arises in the following manner.

2.  In August 2008, the respondent, who describes himself as a political activist, appeared before a magistrate, Mr Gary Lam, to answer a charge of causing an obstruction in a public place, contrary to s.4(28) of the Summary Offences Ordinance, Cap. 228 which directs that:

“Any person who without lawful authority or excuse ... does any act whereby ... obstruction, whether directly or consequentially, may accrue to a public place ... shall be liable to a fine of $500 or to imprisonment for 3 months.”

3.  The particulars of the charge alleged that on 30 November 2007, in a public place; namely, on the pedestrian pathway known as Battery Path directly outside the Court of Final Appeal building, the respondent stretched a banner across the width of the pathway as a result of which, whether directly or consequentially, an obstruction was caused.

4.  The banner in question bore writing in both English and in Chinese characters, the English reading: “no more prisoners of conscience”.  It was deployed by the respondent as part of a peaceful demonstration which he conducted that day from about 8.30 in the morning until 5.00 in the evening.

5.  Having been notified of the intended demonstration, police were present throughout and made a video film of it.  Accordingly, the details of what happened during the demonstration were never in dispute.

6.  In its judgment in Yeung May Wan & Others v HKSAR (2005) 8 HKCFAR 137, the Court of Final Appeal held that a person who creates an obstruction in a public place, thereby impeding other users, cannot be said to be acting without lawful excuse if his conduct involves a reasonable use of that public place.  The law of give and take applies so that a balance is to be struck between the possibly conflicting interests of different users based on the requirement of reasonableness.  Whether any particular instance of obstruction goes beyond what is reasonable, said the court–

“… is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done.”

7.  In the present case, as I have said, the respondent was conducting a peaceful demonstration, a constitutionally protected right.  In this regard, Article 27 of the Basic Law guarantees freedom of speech, freedom of assembly and the freedom to demonstrate.

8.  In Yeung May Wan, the majority of the Court of Final Appeal said that, when an obstruction results from a peaceful demonstration, a constitutionally protected right is introduced into the equation.  In such cases –

“… it is essential that the protection given by the Basic Law to that right is recognised and given substantial weight when assessing the reasonableness of the obstruction.”

The majority continued by saying:

“While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.”

9.  In a separate but concurring judgment, Bokhary PJ said:

“It is by no means easy to imagine a meaningful assembly, procession or demonstration that would not cause some measure of obstruction in the ordinary sense of the term.  What then would happen if it were to be held that people inevitably commit public place obstruction whenever they cause anything that would in common parlance be called an obstruction?  The consequence, I think, would be that the freedoms of assembly, procession and demonstration would be unacceptably curtailed.”

10.  But it remains, of course, always a question of fact and degree.  As Bokhary PJ said:

“The law also calls upon demonstrators to accommodate other people’s rights, especially ordinary highway users’ right of free passage.  For that purpose demonstrators have to tolerate some interference with their own freedom to demonstrate.  Such tolerance is expected of demonstrators however strongly they may feel about their cause.” [my emphasis].

11.  Concerning the trial of the respondent, having heard the prosecution evidence, the magistrate, Mr Gary Lam, while he accepted that the respondent had from time to time either fully or partially blocked the freedom of passage of other users of the pathway, causing an obstruction, came to the determination that nevertheless his demonstration had, in all the circumstances, been so clearly reasonable that there was no case to answer.

12.  In coming to this determination, the magistrate not only accepted the legal principles set down in Yeung May Wan, as he was bound to do, but also relied heavily on what, in his opinion, were striking similarities in the facts of the demonstration which was the subject of Yeung May Wan and the demonstration conducted by the respondent.  In concluding his ruling, the magistrate said:

“I accept that questions of fact and degree should normally be left for the jury.  However, given the striking similarities between the facts in Yeung May Wan and those in the present case as well as the authoritative comment by the Court of Final Appeal that substantial weight must be given to the freedom of demonstration when assessing the reasonableness of obstructions, I have come to the conclusion that a jury, if properly directed according to the principles laid down in Yeung May Wan, could not properly convict the defendant based on the prosecution evidence, even taken at its highest.”

13.  It is against this ruling that the appeal by way of case stated is made.  It is made on the basis that the magistrate’s ruling, being one of fact and degree, determined on an analysis of factual circumstances, was perverse, falling outside of the magistrate’s permissible limits of discretion.

14.  I shall turn later to the specific questions contained in the case stated signed by the magistrate. By way of an overview, however, it may be said that at issue is the methodology of the magistrate’s analysis of the single issue of reasonableness.  

The factual circumstances of the demonstration

15.  The respondent mounted his demonstration in the immediate vicinity of the Court of Final Appeal; indeed, in front of the main entrance, although some distance from it.  He did so because he believed he had been the victim of a manifest injustice perpetrated by the criminal justice system.  Having been condemned to a period of imprisonment, he saw himself as a prisoner of conscience; hence the wording of the banner.

16.  It is not disputed that the respondent was entitled to hold his demonstration in the area immediately outside of the Court of Final Appeal.  That was where his grievance could, with sufficient impact, be brought to the knowledge of the public and to persons in authority.  As Stock JA said in Yeung May Wan when that matter was heard by the Court of Appeal: [2004] 3 HKLRD 797, at 848:

“As one so often sees in newscasts from around the world, pavements or plazas outside government buildings or embassies are regularly used for protests, and the reason for the choice of site is clear, namely, that they are the natural or most obvious sites for demonstrations, precisely because demonstrating ‘down the road’ is less likely to bring home the intended message either to government or embassy officials or to passers-by.”

17.  The respondent, acting alone, commenced his demonstration at about 8.30 in the morning.  He was dressed as a prisoner might be dressed in a cartoon, in black and white stripes.  He hung up one banner and then took a second banner, the subject of his prosecution, which was tied to some garden railings and stretched out across the width of Battery Path, the respondent holding the other end.  The respondent stood just a pace or so away from the wall of the Court of Final Appeal.  If he stood right against the wall then the banner completely blocked Battery Path, stopping passers-by.  If, however, he took a pace or so away from the wall then it left a space between himself and the wall through which – effectively, only in single file – people could pass.

18.  While it was possible for a reasonably agile person to step over the banner or to lift it up and pass under it, the video film taken by the police shows that members of the public were – initially at least and for understandable reasons – loath to take such action.  

19.  Although, as I estimate it, the spot where the respondent extended his banner could accommodate six or seven people walking abreast, as I have said, even when standing a pace or so away from the wall of the Court of Final Appeal, the actions of the respondent effectively channelled pedestrians into a single file. 

20.  It would be accurate, I think, to say that the respondent did not occupy only sufficient of the pathway to effectively mount his demonstration, leaving a reasonably generous space for other users to walk past but intentionally dominated it so that, to some degree, he was able to control the movement of those passing by.  The magistrate described this as a “partial blockage” but, acting on a concession made by the prosecution, he concluded that the respondent’s actions in this regard were reasonable.

21.  The focus of the hearing, therefore, was on the respondent’s actions in fully blocking the pathway and the consequences of those actions.

22.  When the respondent stood right against the wall, as he did on numerous occasions during the six and a half hours that he employed the banner, then – for a few seconds or, on occasions, for considerably longer – the freedom of other members of the public to walk along the pathway was completely blocked.  The video film depicts a number of occasions when a small crowd would gather at the banner, uncertain what to do, until one person would give the lead by climbing over or going under the banner.  Invariably other passers-by would then follow or the respondent would concede the position, lowering the banner so that most of it lay on the ground or taking a pace away from the wall.

23.  In summary, in conducting his demonstrations, the intention of the respondent was clear and he did not deny that intention.  He intended not simply to display his message of protest or to attract the attention of pedestrians to it by means of spoken slogans or the handing out of literature but, albeit in a peaceful manner, to attempt to exercise sufficient control over members of the public passing by so that they would be forced to take note of his message of protest.  There are three illustrations of this.

24.  First, as I have said, for most of the time that he held the extended banner the respondent allowed only a limited space between himself and the wall of the court building, so that, if more than one person approached the banner, they would be channelled into single file.

25.  Second, fairly early in the demonstration, when the respondent was standing away from the wall of the Court of Final Appeal, he saw a judge of that court approaching him.  He then stepped against the wall so that the banner blocked the pathway entirely.  The judge asked to be allowed through so that he could go to work.  The respondent refused.  This was emphasised by the fact that he allowed an anonymous pedestrian to go through by stepping away from the wall for a moment but then stepped back against the wall so that the judge was prevented from following.  There was a brief conversation in which the judge asked why he was being held back.  The respondent asked the judge to consider the message on his banner.  In order to get past, the judge was forced to walk to the other side of the path and climb over the railings of a small garden.

26.  Third, on more than one occasion during the course of the demonstration, having used his banner to block the pathway, the respondent told those persons who were forced to stop that they should take an alternate route, a detour, he said, of some eight minutes duration, using the time to consider his message of protest.  Whether anybody took the alternate route is not known.  However, the video film does show several people walking back in the direction from which they had come, that seemingly being the direction of the proposed alternate route.

27.  In respect of this third illustration, at the appeal hearing the respondent said that he had subsequently checked how long it would take to walk the alternate route and that, on his calculation, it would only take some four minutes.  That however does not detract from the essential point that, having blocked a number of passers-by, the respondent attempted to persuade them to take a fairly lengthy detour –one that he said at the time was eight minutes long – rather than giving them clear room to pass.

28.  As to the respondent’s intended domination of the public pathway, during the course of the appeal hearing the respondent adopted the contents of a letter written to the Chief Executive about a month after the demonstration.  That letter had been before the magistrate.  The letter referred to a future demonstration but the respondent spoke of the letter in terms which made it clear that it reflected his state of mind on 30 November 2007.  The letter, in part, said:

“… we would like to state in writing that we will step aside for any elderly citizens, pregnant ladies, women with children, people carrying heavy bags, police officers on duty and also for any other demonstrations going up or down Battery Path.  We would like to emphasise, however, that no such special treatment will be given to any senior members of the government or judiciary wishing to use Battery Path.  The permanent judges working at the Court of Final Appeal, four example, are free to walk around the back of the building and up Battery Path the other way like everyone else.”

29.  During the appeal hearing, the respondent described the area outside of the Court of Final Appeal as being a “sacred” site for demonstrations concerning the rule of law and human rights.  His submissions, in my assessment, amounted to a statement that accordingly, at that site, demonstrators had a greater right to the occupation of the pathway than other members of the public.  If that was his submission, I reject it.

The findings of the magistrate

30.  As I have said earlier, the principle of reasonableness having been so clearly defined by the Court of Final Appeal in Yeung May Wan, the central – indeed, single – issue for the magistrate to determine was whether, as alleged by the prosecution, the actions of the respondent amounted to obstruction and, if so, whether that obstruction went beyond what was, in the circumstances, reasonable.  To put it another way, bearing in mind that the respondent was exercising a constitutionally protected right, whether any obstruction caused by him nevertheless exceeded what other members of the public – who were themselves entitled to freedom of passage – could reasonably be expected to tolerate.

31.  As I have indicated earlier, whether any obstruction caused by the respondent exceeded the limits of what was reasonable, rendering him criminally liable, was a question of fact and degree.  That therefore required an evaluation – in context – of the respondent’s actions and their consequences.  But, in my view, it was here that the magistrate first fell into error.  I say that because I believe he was plainly wrong to conclude that the factual circumstances of the respondent’s demonstration bore “striking similarities” to the factual circumstances of the demonstration considered in Yeung May Wan which the Court of Final Appeal found to be reasonable and to use that conclusion, in material part at least, to come to the finding that the respondent had no case to answer.  In this regard, the magistrate expressed himself as follows:

“I accept that questions of fact and degree should normally be left for the jury.  However, given the striking similarities between the facts in Yeung May Wan and those in the present case, as well as the authoritative comment by the CFA that substantial weight must be given to the freedom of demonstration when assessing the reasonableness of the obstructions, I have come to the conclusion that a jury, if properly directed ... could not properly convict the defendant based on the prosecution evidence, even taken at its highest.”

32.  In my judgment, contrary to the findings of the magistrate, there were a number of very material differences to the factual circumstances of the two demonstrations.  They were not mirrors of each other, far from it.

33.  For introductory purposes, the headnote to Yeung May Wan suffices to set out the factual circumstances of the demonstration considered by the Court of Final Appeal:

“The demonstrators were members of a group who demonstrated outside a building containing the Liaison Office of the Central People’s Government (the Office).  The demonstrators, who varied in number between 4 to 16, were protesting about alleged mistreatment of and brutality against group members by the Mainland Government.  The demonstration was peaceful, largely static and included displaying a banner.  The police arrived soon after it started and, after some 15 minutes of observation, the police commander at the scene concluded that the demonstrators were causing an obstruction because people had to use the vehicular driveway to enter the Office and pavement-users were making detours.”

34.  Concerning the material differences, first, the demonstration outside the Liaison Office involved between 4 to 16 demonstrators while the respondent’s demonstration was conducted by him alone.  It is self-evident that what may be considered a reasonable obstruction when a number of persons participate in a demonstration may not be considered reasonable when a single person only conducts a demonstration.  It is, in my view, distorted logic to hold that, because 500 demonstrators would reasonably cause a certain level of obstruction to other users of the highway, therefore a single demonstrator is entitled to cause the same level of obstruction.

35.  Second, concerning the demonstration outside the Liaison Office, the objective indicia showed clearly enough “that there was ample room for pedestrians as well as office workers safely to pass and to gain access to the building”.  As the Court of Final Appeal observed in its majority judgment:

“Plainly, pedestrian access was to some extent physically obstructed by the … demonstration although pedestrians continued to be able to use the building’s main entrance by making a slight detour around the group of demonstrators.” [my emphasis].

36.  By contrast, when the respondent conducted his lone demonstration, he attempted, for extended periods of time, to channel pedestrians through a relatively narrow space between himself and the Court of Final Appeal and, at times of his choosing, calculated to be 68 in number, he closed the gap so that the pathway was fully blocked.  In this regard, the magistrate said:

“I would not go so far as considering the number and duration of blockages as de minimis.  But, as reflected in the videotapes, it is plain that pedestrian access to Battery Path was only momentarily stalled at regular intervals rather than being statically blocked over an extended period of time as in Yeung May Wan.” [my emphasis].

37.  With respect to the magistrate, I can find nothing in the reported judgment of Yeung May Wan to suggest that the freedom of pedestrians to walk along the pavement or to enter the building which housed the Liaison Office was at any time “statically blocked” and certainly not for any extended period of time.  Indeed, as I hope I have made clear from the citations given above, it was common ground that the conduct of the demonstrators left ample room for pedestrians to pass and to gain access to the building.  It is true that one means of access to the entrance of the building did become blocked but this was due to the police taking the precautionary measure of erecting pedestrian barriers.  It was not due to the actions of the demonstrators themselves.  Mention is made in the judgment of the Court of Final Appeal of the demonstration outside the Liaison Office being “static” but that relates to the nature of the demonstration itself not to any obstruction.  It was static because the demonstrators assumed postures of a meditative nature associated with Falun Gong rituals.

38.  What must be emphasised, and, in my judgment, it is fundamental, is that there was no suggestion that the demonstrators outside the Liaison Office intended in any way to exert any form of control over people passing by.  If those people were in any way inconvenienced, that inconvenience was minimal and was patently incidental.  In marked contrast, as I have earlier described, the respondent attempted in a number of ways to directly exert control over people passing by.  To suggest to even one passer-by, while blocking his way, that he should turn back and take an eight-minute detour may well, in my judgment, constitute an obstruction that goes beyond the bounds of reasonableness.  Equally, to block the way of a person who is considered to be a ‘target’ of the demonstration – be he a judge, public officer, banker or businessman – for the purpose of delivering a message of protest to the person may also, in my opinion, go beyond the bounds of reasonableness.  The constitutionally protected right to demonstrate does not include the right to harass.

39.  Moving to other matters contained in the magistrate’s ruling, in my judgment he also fell into error, in the circumstances of this case, in relying too heavily on what I will call a statistical analysis.  In this respect, he said:

“In the present case, from a macro view, the defendant’s demonstration outside the CFA lasted for about 9 hours from 8:00 am to 5:00 pm.  And out of those 9 hours, 6.5 hours involved using of the banner.  In those 6.5 hours the defendant caused a total of 68 complete blockages, the duration of which totalled 31 minutes.  I note that the 68 blockages took place in rather even intervals between 8.30 in the morning and 2.30 in the afternoon.  From a micro-view, one blockage would take place on an average of 5.7 minutes and each blockage had an average duration of 2.1 minutes.  But … 60 out of the 68 blockages lasted only 10 to 30 seconds.”

40.  But while 60 of the complete blockages may have lasted only 10 to 30 seconds, what of the remaining eight?  There is no analysis of what occurred during these blockages.  The actions of the respondent during even one of these instances may have been so unreasonable as to clearly constitute a criminal obstruction.  I have earlier referred to possible instances of this.  The magistrate, while correct, of course, to assess matters by way of an overview, was not thereby excused from considering individual instances of obstruction if significant.

41.  Equally, in my view, the analysis failed to take into account when it was, during the course of the day, that the obstructions took place and their consequence.  For example, the evidence showed that between about noon and two in the afternoon, the time for lunch, a total of 704 pedestrians were in some way affected by the respondent’s actions of making a partial or complete blockage of Battery path, apparently 56% of all members of the public who sought to pass by the respondent that day.

42.  The analysis and comments upon it also failed to take into account what I consider to be the important issue of intention; the active intention, that is, to exert some control over, and thereby obstruct, members of the public as an integral part of the demonstration process.  As Mr Zervos expressed it, unlike the demonstrators in Yeung May Wan who just sat on the pavement peacefully until the removal action of the police, the respondent cordoned off Battery Path, picking and choosing who he should block in their freedom of passage so that, on such occasions, the person stopped would have to use his own means “to get round the banner by, for example, climbing over it, when its top edge was about 3 feet from the ground or lifting up the bottom of it, when its bottom edge was about 2 to 4 feet from the ground, or simply turning around to take an alternative route.”

43.  Intent, of course, is often manifested by a pattern of behaviour.  That pattern, if short-lived, may be reasonable while, if persistent, it may become unreasonable.  In his concurring judgment in Yeung May Wan, Bokhary PJ specifically referred to the duration of an obstruction (or, in my view a series of linked obstructions) as being a relevant consideration in determining the issue of reasonableness.  The magistrate, however, does not appear to have given sufficient consideration to the persistence of the respondent’s conduct in causing both partial and complete blockages.

Conclusion

44.  In my judgment, for the reasons given, I am of the view that the ruling of the magistrate was perverse in that his findings were not open to a reasonable tribunal of fact.  Most certainly, on the evidence before the magistrate, there was a case to answer.

45.  It is in the light of these findings that I turn now to consider the questions posed in the case stated.

46.  The first question is:

“Was I correct in finding that, as conceded by the appellant at trial, whenever the respondent left a gap between himself and the wall of the CFA, no obstruction was caused; and therefore such “partial blockages” should not be taken into account when determining whether the respondent's demonstration went beyond what is reasonable?”

47.  Looking to the nature and persistence of the partial blockages, the answer to the question must be ‘no’.

48.  The second question is:

“Was I correct in finding that, given the striking similarities between the facts in Yeung May Wan and those in the present case, as well as the authoritative comment by the CFA that substantial weight must be given to the freedom of demonstration when assessing the reasonableness of the obstruction, a jury, if properly directed according to the principles laid down in Yeung May Wan, could not properly convict the respondent based on the evidence adduced by the appellant, even taken at its highest?”

49.  For the reasons set out in the body of this judgment, the answer to this question too must be ‘no’.

50.  The third question is:

“Was I correct in finding that the obstruction caused by the respondent did not go beyond what is reasonable in accordance with the test specified in Yeung May Wan?”

51.  The answer to that question most again be ‘no’.

52.  The fourth question is:

“Was I correct in (i) ruling that there was no case to answer in respect of the offence stated in the summons, and (ii) acquitting the respondent of the summons in the circumstances of this case?”

53.  This question appears to be, in substance, a repetition of what is asked in the second and third questions.  The answers to (i) and (ii) must be ‘no’.

54.  I therefore allow the appeal, set aside the order of the magistrate dismissing the charge and remit the case to another magistrate for trial de novo in accordance with law.