HKSAR v. CHOW HANG TUNG

HCMA 51/2022

[2023] HKCFI 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 51 OF 2022

(ON APPEAL FROM WKCC 2595 OF 2021)

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BETWEEN

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D E C I S I O N

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1.  The Appellant was found guilty after trial of Incitement to knowingly take part in an unauthorized assembly, contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap. 245, and punishable under section 101I of the Criminal Procedure Ordinance Cap. 221. She was sentenced to 15 months’ imprisonment, 10 months’ of which to run consecutively to a term of sentence she was already serving in respect of a District Court case at the time.

2.  The Appellant appealed against her conviction and sentence and I allowed her appeal on 14 December 2022[1].

3.  By a Notice of Motion, the Respondent applies under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 for a certificate to certify that points of law of great and general importance were involved in my decision.

4.  Section 32(2) and (3) of Cap 484 provides:

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.

(3) Where the Court of Appeal or the Court of First Instance declines to certify as mentioned in subsection (2), the Court may so certify and grant leave to appeal.”

5.  The alleged points of law are so-framed:

“(1) In a prosecution for an offence of incitement to knowingly take part in an unauthorized assembly contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap. 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap. 221, is it open to a defendant to raise by way of defence the legality of the police’s prohibition of the subject public meeting which was subsequently upheld by the Appeal Board on Public Meetings and Processions (“the Appeal Board”)?

(2) In the event that the answer to the above question is in the affirmative, what is the correct approach that the court should take in considering a defendants’ challenge to the legality of the police’s prohibition and of the subsequent determination by the Appeal Board?”

6.  I agree the two points of law raised by the Respondent are indeed of great and general importance and I certify the same accordingly.