HKSAR v. FUNG KA KEUNG, CHRISTOPHER AND ANOTHER

HCMA 1014/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1014 OF 2001

(ON APPEAL FROM TMCC 1493/2001)

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J U D G M E N T

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1. The Appellant was convicted after trial, each of one count of wilfully obstructing a police officer in the due execution of his duty, contrary to Section 36(b) of the Offences against the Person Ordinance, Cap. 212. Both Appellants were also convicted of Section 4(28) of the Summary Offences Ordinance, Cap. 228 in that they, without lawful authority or excuse, did an act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place. Both Appellants appeal against their convictions.

Facts

2. On 28 May 2001, members of the well-known organization called Green Peace went to the Nestle's Dairy Farm Hong Kong Limited's premises in Yuen Long, NT, Hong Kong, where they blocked the front gate entrance to the Nestle's factory. Some of them went to the back gate and both Appellants chained themselves to a van which was parked in such a way that it blocked the entrance to the Nestle's premises via the back gate. The time was about 6:15 a.m. and Nestle's Company was affected by these protest activities because they were prevented from making their regular deliveries to retailers starting from about 7:00 a.m.

3. Superintendent Lam, who subsequently took charge of the police operation on that day, arrived at the scene some time after 8:00 a.m. He found a group of people blocking the front entrance to Nestle's Company and he also saw, outside the rear gate of Nestle's Company, a van parked across the driveway in front of the back gate of Nestle's Company. That van effectively blocked the entrance and exit to Nestle's Company near the back entrance. Superintendent Lam also noticed the two Appellants were chained to the van. The two Appellants were lying on the ground and their hands were chained to the van and to each other. Superintendent Lam then set up a coordination centre in the vicinity. At about 11:35 a.m. he received information from the relevant authority that the area outside the back gate of Nestle's Company was a public area, and it was not an area which had been specifically marked out for legal parking. Superintendent Lam considered that the van was causing an obstruction to members of the public who would be using that area of the road. He, therefore, decided that the van must be towed away.

4. At about 1:35 p.m. Superintendent Lam said he went to the area outside the back gate of Nestle's and spoke to the people present there including the two Appellants. He said he explained to them that the van was causing an obstruction. He asked them to take the van away, otherwise, the police would tow the van away. Superintendent Lam also said that he asked the two Appellants to unchain themselves and to leave the area. If not, they would be obstructing the Police in the execution of their duty and they would be charged. He said that the two Appellants made no reply and, therefore, he ordered that the two Appellants be arrested for obstructing the Police in the due execution of their duty. When the two Appellants were forcibly unchained and arrested, they put up no resistance nor did they suffer any injury.

5. The 1st Appellant gave evidence that he was indeed chained to the van on that morning, but he did not receive any warnings from the Police. He also said that just prior to his arrest, no police officers had communicated with him and also at the time he was lying face down on the ground, he was not able to hear Superintendent Lam's warning, neither could he hear Superintendent Lam asking people to drive the van away.

6. The 2nd Appellant said that the Police, after arriving at the scene, had asked him what was the matter and what they were doing there, and at about 1:30 p.m. he did not see Superintendent Lam and it was very noisy in the area and he was unable to hear Superintendent Lam's words. The 2nd Appellant also mentioned that it would take a few minutes in order for them to be released from the way they were chained to the van, and he said that when they were arrested, he never was given any time to react. He said that he had a prior agreement with the 1st Appellant that they would not resist the Police and if the Police insisted that they leave, they would leave the area. He said that the purpose for their chaining themselves to the van at the back gate and also the obstruction in front of the front gate was to prevent the vehicles belonging to Nestle's being driven in and out of those premises.

7. It was also in evidence that Nestle's Company rarely used the rear gate for access to the premises and according to the PW1, who was the Manager of Nestle's, as it was only used in an emergency. Superintendent Lam also gave evidence that after 11:00 a.m., he had told an Inspector Wong to go to the rear gate to warn the people there that that was a public area and to inform them to leave. Unfortunately, Inspector Wong was not called to give evidence at the trial. At page 110 of the transcript at Letter L, PW2's evidence was that he had told Wong to tell the people outside the rear gate that they were causing an obstruction and if they did not drive away the van, the van would be towed away. PW2 did not personally see Wong speaking to the Appellants or to any others. PW4, who was another police officer at the scene, gave evidence (see page 131, Letter P) that Inspector Wong did not warn the two Appellants who were chained to the van, but he spoke to someone who was standing up.

8. Exhibit P5 was a video tape taken by the Police of what happened at the rear gate at about 1:15 p.m. that day. In that tape, when it first began Superintendent Lam was seen in the middle of speaking to the two Appellants who were lying on the ground. Superintendent Lam was caught on the tape saying the words "Now, will you cooperate by driving your vehicle away now". When he was interrupted by somebody who told him to speak to a Mr Ho, Superintendent Lam then, without moving from the place he was standing, spoke to a Mr Ho and told Mr Ho that he was causing an obstruction in a public place, and that he should cut up the lock and the Police did not want to use force. It is clear from the tape that despite Superintendent Lam's initial words to the two Appellants who were on the ground and to Mr Ho, there was no outward manifestations by either the Appellants on the ground or Mr Ho that they were going to move themselves or the van. So Superintendent Lam immediately then ordered the Police to move in and the Appellants were freed from the van and arrested.

9. When Superintendent Lam gave evidence, he said that he did request the two Appellants, who were on the ground, to unchain themselves and to leave and if they did not, then they would be arrested for causing obstruction to the Police in the execution of their duty. And he said that when he told them that there was no reaction from the two Appellants.

10. One of the grounds of appeal was that the Magistrate's finding that Superintendent Lam had clearly warned the two Appellants was erroneous and not supported by the evidence and that the actual warning given by Superintendent Lam was inadequate, and that the warning given by Superintendent Lam to the person called Ho could not have been heard by the two Appellants who were on the ground because it was noisy at the time.

11. Having read the transcript of the evidence and viewed the video tape, I am convinced that the learned Magistrate was not erroneous in his findings. He was entitled to accept Superintendent Lam's evidence that he did warn the two Appellants on the ground and it was also obvious from the video tape that when Superintendent Lam spoke to Mr Ho, it was within the hearing of the two Appellants, and it is also clear from the video that none of the protestors including the two Appellants did or said anything to show that they would comply with the Police request. So I do not agree with the Appellants' counsel that the warning by Superintendent Lam was inadequate and could not be heard by the two Appellants. There was, therefore, ample evidence for the learned Magistrate to convict the Appellants of wilfully obstructing the Police Officer in the due execution of his duty under Section 36(b) of the offence against the Persons Ordinance, Cap. 212.

12. The Appellants were also convicted under Section 4(28) of the Summary Offences Ordinance, Cap. 228 in that they, without lawful authority or excuse, does an act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place. The learned Magistrate in convicting both Appellants of this charge, found as a fact that they were indeed causing an obstruction in a public place.

13. The main point on this appeal is whether the Appellants knew that they were indeed causing an obstruction in a public place. As was revealed in the evidence, the Appellants and the Green Peace protestors had arrived at the front and rear gates of the Nestle's Company at about 6:00 a.m. that morning. Superintendent Lam himself was not sure whether the area outside the rear gate was a public place until he received confirmation some time after 11:00 a.m. that it was indeed a public place. Shortly after that, he instructed an Inspector Wong to go to the rear gate and tell the people and protestors at the rear gate that they were causing an obstruction and that if they did not drive the van away, the Police would tow the van. Now it is unfortunate that, at the trial, Inspector Wong was not called to give evidence and the learned Magistrate was, therefore, not apprised of what words were actually spoken by Inspector Wong to the protestors at the rear gate and to whom.

14. Whilst I agree with counsel for the Respondent that in law a warning is not necessary, nevertheless, Superintendent Lam, who was in charge of the operation that day, found that it was appropriate to give the protestors a warning prior to taking action. I agree with the decision taken at that time by Superintendent Lam in the proper exercise of his discretion, because it was only fair to warn the protestors at the rear gate that they were on public land and that they were causing an obstruction and, therefore, they were committing an offence under the laws of Hong Kong. Although there is no rule enshrined in the laws of Hong Kong that such a warning be given, nevertheless, in the interest of justice and fairness, such a warning ought to be given in these circumstances when the protestors had been at the rear gate for some hours without the Police taking action.

15. The elements of this charge is that the Appellants had no lawful authority or excuse to do what they did whereby an obstruction was caused, whether directly or consequentially, to a public place. The question, therefore, is did they have lawful authority or excuse to do what they did. If the Appellants thought that they were on private land as the protestors at the front gate were, then they certainly would not have caused an obstruction to a public place. The learned Magistrate in his statement of findings at page 42 did mention that he accepted Superintendent Lam's evidence that he warned the Appellants, but he did not direct his mind to the fact that Superintendent Lam's warning was in relation to their obstructing the Police in the execution of his duty and not as to the fact that they were causing an obstruction to a public place. He also failed to direct his mind to the fact that the earlier warning that Superintendent Lam told Inspector Wong to give shortly after he discovered that the Appellants were in a public place, there was no evidence to show what Inspector Wong had actually said.

16. I, therefore, find that the conviction of the Appellants on the third charge is, therefore, unsafe and unsatisfactory and the appeal is allowed on the third charge and the Appellants are acquitted of this charge.

17. Finally, it has been raised on the appeal that the Appellants have a right to freedom of expression and that any restrictions on such right must be narrowly interpreted, and that the purpose of such restrictions is to ensure respect for the rights or reputation of others or protection of national security or public order or of public health or morals.

18. There is no doubt from the evidence that the protestors at the rear gate were causing an obstruction in a public place, thereby affecting the rights of members of the public in using that part of the road and also the rights of the Company's employees using the rear entrance to the Company's property. The Appellants and their fellow protestors in continuing to remain chained to the van outside the rear gate of the Company was indeed injuring the rights of members of the public to the use of that area of a public place and the Police was, therefore, correct in their approach when they first chose to warn the protestors and when the protestors failed to move, they then proceeded to take action. I do not agree, therefore, with the Appellants' counsel's submission that the arrest was disproportionate to what was necessary to restore a clear passage at a public place, or that the arrest was irreconcilable with the Appellants' freedom of expression.

19. For the reasons above, the appeal against conviction in relation to Charges 1 and 2 is dismissed. The appeal against conviction for Charge 3 is allowed and the sentence quashed.