“T” v. COMMISSIONER OF POLICE

HCAL 102/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 102 OF 2011

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BETWEEN

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J U D G M E N T

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1.  Hong Kong citizens are familiar with public demonstrations. Our right to express views in such manner is protected as one of the fundamental rights under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights. However, such right is not absolute. It is subject to restrictions prescribed by law and such law must comply with the criteria set out in Article 16(3) of the Bill of Rights. Do such restrictions include compliance with requirements under the Place of Public Entertainment Ordinance Cap 172 [“PPEO”]? Can public demonstration also at the same time be regarded as public entertainment if the event in question embodies programme which comes within the definition of entertainment under the PPEO? Under what circumstances (if any) would an organizer of a political demonstration at public place be obliged to obtain a licence under that ordinance? These are the main issues in this judicial review. The Applicant says that public demonstration should not be within the scope of the PPEO. In the Amended Originating Summons, the Applicant seeks the following relief,

“1. A declaration that a place of public entertainment, for the purposes of the PPEO, does not include an open space area (not being enclosed) where a political demonstration occurs;

2. Alternatively, a declaration that sections 2 and 4 of the PPEO to the extent that a place of public entertainment, for the purposes of the PPEO, does include an open space area (not being enclosed) where a political demonstration occurs are inconsistent with Articles 27 and 39 of the Basic Law of the HKSAR (“BL”) and/or Articles 16(2) and 17 of the Hong Kong Bill of Rights (“HKBOR”) of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBORO”) and/or Articles 19 and 21 of the International Covenant on Civil and Political Rights 1966 (“ICCPR”), and are unconstitutional.”

Two different lines of argument are advanced on behalf of the Applicant:

(1) on the proper construction of the relevant sections of the PPEO; and

(2) the constitutionality of these sections in light of Articles 27 and 39 of the Basic Law [“BL”] and Articles 16(2) and 17 of the Hong Kong Bill of Rights [“HKBoR”].

2.  Parties have agreed on the relevant facts.  They are set out in the Statement of Agreed Facts [“the Agreed Facts”].  I shall attach the Statement to this judgment and it would be incorporated as part of the judgment.

3.  As stated in the Agreed Facts, initially the responsible person in the organizers of IDAHO applied for a licence under the PPEO and notified the Commissioner of Police under the Public Order Ordinance Cap 245 [“POO”] of the intention to hold a public meeting.  Two different statutory regimes processed by two different authorities were involved.  I shall start with an introduction of the two regimes.

The PPEO regime

4.  The Secretary for Home Affairs authorized the Director of Food and Environmental Hygiene under Section 3B of the PPEO to be the licensing authority under that ordinance.  The Principal Assistant Secretary for Home Affairs accounted in her affidavit the background and legislative history of the PPEO.  She traced its origin back to the Theatres Regulation Ordinance 1908. As she said at para 3 of her Affidavit, that ordinance regulated theatres and other places of public resort.  Section 3 of that ordinance reads,

“3. It shall not be lawful for any person to have or keep any building, matshed or other place of public resort for the public performance of stage plays without a license granted as hereinafter provided, under a penalty not exceeding 200 dollars for every day on which such building or place shall have been so kept open for the purpose aforesaid.”

5.  She described the matters regulated by that ordinance, as set out in Section 6 of it, at para 6 of her Affidavit,

“6. Section 6 of the 1908 Ordinance provides that the Governor-in-Council may make regulations for the regulation of theatres and places of public performance for any of the following purposes:- (i) issue of licences; (ii) cancellation of such licences; (iii) prescribing the payment of fees in respect of the licences; (iv) prescribing the materials of which any such licensed building or place is to be constructed and for regulating the mode of building seating accommodation entrances exits and all other matters pertaining to the same; (v) requiring the exercise of all such measures as may be prescribed in any such regulation against overcrowding and for the control and prevention of fire in any such licensed building or place; (vi) the maintenance of good order at such licensed building or place; (vii) the entry and inspection during the performance of a stage play or at any time to enter and re-inspect any such licensed building or place; (viii) the imposition of penalties on breach of any regulation made in pursuance of this section and the mode of recovery of the same; and (ix) generally for carrying out the provisions of the Ordinance.”

6.  In 1919, the 1908 ordinance was replaced by the Places of Public Entertainment Regulation Ordinance 1919.  The statutory concepts of “entertainment” and “public entertainment” were first introduced into our statute books.  Under section 2 of the 1919 Ordinance, these concepts were defined as follows,

“ “Entertainment” includes any concert, stage play, stage performance, cinematograph display, exhibition of dancing, conjuring, or juggling, acrobatic performance, boxing contest, or circus, or any other entertainment of a similar character.

“Public Entertainment” means any entertainment, as above defined, to which the general public are admitted with or without payment for admission.”

7.  Matters regulated under the 1919 Ordinance were similar to those regulated under the 1908 Ordinance though the 1919 Ordinance also provided for censorship of cinematograph films and posters which is not relevant for present purposes.

8.  The 1919 Ordinance was amended in 1951.  The definition for “entertainment” was amended and a definition for “place of public entertainment” was introduced. There was no amendment in respect of the definition for “public entertainment”. The new definitions were as follows,

“ ‘(a) “entertainment” includes any concert; stage play, stage performance or other musical, dramatic or theatrical entertainment or any part thereof, any cinematograph display, lecture, story-telling, circus, exhibition of pictures, photographs or books, exhibition of dancing, conjuring or juggling, acrobatic performance, exhibition of abnormal persons or animals, any sporting exhibition or contest, any bazaar, any merry-go-round, flying wheel, or other mechanical device designed for amusement;’ and

‘(c) “place of public entertainment” means any place on which there is any erection or structure, any premises or building whether temporary or permanent or any water-borne craft or other place in or at which a public entertainment takes place whether on one occasion or more;’ ”

9.  The objects and reasons of the material amendments were stated in the Gazette,

“ The main object of this Bill is to enable the provisions of the Places of Public Entertainment Regulation Ordinance, 1919, (the principal Ordinance) to be applied more precisely to modern conditions in the Colony. The repeal and replacement of the definition “entertainment” and an interpretation for “place of public entertainment” are proposed in clause 2 which have the effect of widening considerably the places and forms of entertainment subject to the control imposed by the Ordinance. Consequential amendments of the regulating powers contained in the principal Ordinance are proposed in clause 5.”

10.  When the 1951 amendments were moved in the First Reading of the Bill in the Legislative Council, the Acting Attorney General said,

“The amendment in which perhaps Honourable Members will be most interested is that it is proposed to effect in the definition of “entertainment”.  The new definition includes inter alia any sporting exhibition which of course would include football matches and tennis exhibitions.  A sporting exhibition has always been an entertainment for the purposes of Entertainment Tax and it is of course common knowledge that the public are frequently drawn in large numbers to the place where such exhibitions are being held and that such places not only become therefore more dangerous as fire hazards but that often big crowds collect.  Such crowds can on occasion become a menace to law and order when inflamed by the wrong sort of partisan spirit or when they are unable to secure admission and it seems obviously right that the places where these entertainments are held should be subjected to control by way of licence and the making of regulations which by their conditions or provisions can substantially reduce the hazards and dangers.  In the course of amendment attention was drawn to the fact that although both the Ordinance and the regulations confer discretionary powers the exercise of which might cause serious prejudice to the affairs of persons owning or managing places of public entertainment no provision has been made for appeal.  Clause 7 of the Bill seeks to rectify this by adding a new section providing for appeal to the Governor in Council.”

11.  The ordinance was further amended in 1970.  The amendments were to implement some recommendations by the Commission of Inquiry investigating the collapse of a stand at a tattoo held in Sek Kong in November 1968.  Moving for the seconding reading  of the bill, the Attorney General said, amongst other things,

“ The present definition in the Ordinance of a “place of public entertainment”, for which a licence is required, is wide enough to include a place on which there is no structure capable of accommodating the public, for example, a field which is set aside for a gymkhana. It is felt that this is unnecessary, since the object of the Ordinance, and of the regulations which are made under it, is to apply appropriate safety standards to buildings and structures used by members of the public attending public entertainments. Clause 2 therefore narrows the definition of a “place of public entertainment” which will in future only include places where a building of some kind, capable of accommodating the public, is erected and also vessels.

…

Clause 7 amends the Buildings Ordinance so as to exclude from its provisions any temporary building which is to be used as a place of public entertainment under this Ordinance, since it is thought to be unnecessary for a person obtaining a licence under this Ordinance to be required also to get another one under the Buildings Ordinance.

         Important changes in the law, designed to give effect to the recommendations of the Commission of Inquiry and to improve safety standards in temporary buildings put up for public entertainments will be contained in amendments to the Places of Public Entertainment Regulations. These amending regulations will be submitted to the Governor in Council as soon as this bill has been passed, since they depend to some extent upon the amendments to the regulation making power which are effected by clause 5 of this bill.”

12.  The definition for “place of public entertainment” was amended to the following in 1970,

“ “place of public entertainment” means–

(a)       any place on which there is any building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b)      any vessel,

in or on which a public entertainment is presented or carried on whether on one occasion or more.”

13.  The first part of the definition was narrowed down to a place on which there is either building or erection or structure which is capable of accommodating the public.  Therefore, the definition would not cover a place where there was simply a structure for the use of the performers without any accommodation for the public.  On the other hand, if there was a temporary stand providing seating for members of the public (as in the case of Sek Kong tattoo), it would come within the definition.

14.  In 1980, the definition was amended again.  The driving force behind the amendment was the need to cater for mini-cinemas within buildings which have other usages as well.  Sub-paragraph (a) was deleted and substituted by the following,

“(a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and”

15.  With such amendment, the definition was also widened to cover a place which could accommodate the public though the accommodation was not provided at a building, erection or structure.

16.  In 1995, PPEO was amended to remove features and provisions which were perceived as being inconsistent with the HKBoR.  The definition for “entertainment” was up-dated.  Clause 8 of the Bill empowered the licensing authority to impose conditions, including conditions as regard crowd control measures and the provision of first aid services by way of giving effect to the recommendations of the Report of Mr Justice Bokhary on the Lan Kwai Fong incident.

17.  In order to strengthen the power of enforcement, amendments were made in 1997 to the PPEO to empower the licensing authority to apply to a magistrate for a Prohibition Order and a Closure Order.

18.  The Principal Assistant Secretary stated at para 31 of her Affidavit that the licensing regime under the PPEO is to provide a means of effectively ensuring public safety and order, and to protect the participants to entertainment from the hazards and dangers associated with the gathering of crowds at places of public entertainment.  The requirements of the statutory scheme and how the scheme is operated in practice were described by her at paras 34 and 35,

“34. The paramount concern of public safety and order underlying the licensing regime is also reflected in the various requirements under the PPEO and its subsidiary legislations in relation to fire safety, mechanical and electrical installations, sanitary fitments, ventilations, structural safety of stages, erections and buildings etc. with which the organiser is required to comply before a licence under the PPEO would be issued to him for holding the relevant event.

35. In practice, when the organizer submits an application for a licence under the PPEO to the licensing authority, i.e. public officers of the Food and Environmental Hygiene Department (“FEHD”) authorized by the Secretary for Home Affairs, FEHD shall under Regulation 162(2) of the Places of Public Entertainment Regulations, Cap. 172A seek comments from other government departments, including the Commissioner of Police, the Director of Fire Services and the Director of Housing / the Director of Marine / the Building Authority on the application. For cases involving laser equipment, comment from the Director of Electrical and Mechanical Services is also sought.”

19.  Section 4 of the current version of the PPEO provides that no person shall keep or use any place of public entertainment without a licence.  There is a three-tier definition under Section 2 defining “entertainment”, “public entertainment” and “place of public entertainment”.

“ “entertainment” (娛樂) includes any event, activity or other thing specified in Schedule 1;

“place of public entertainment” (公眾娛樂場所) means–

(a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b) any vessel,

in or on which a public entertainment is presented or carried on whether on one occasion or more;

“public entertainment” (公眾娛樂) means any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment.”

20.  Schedule 1 of the PPEO gives a very wide meaning to the word “entertainment”,

“ SCHEDULE 1

1. The events, activities and other things referred to in the definition of “entertainment” in section 2 of this Ordinance are the following or any part of any of them–

(a) a concert, opera, ballet, stage performance or other musical, dramatic or theatrical entertainment;

(b) a cinematograph or laser projection display;

(c) a circus;

(d) a lecture or story-telling;

(e) an exhibition of any 1 or more of the following, namely, pictures, photographs, books, manuscripts or other documents or other things;

(f) a sporting exhibition or contest;

(g) a bazaar;

(h) (Repealed L.N. 120 of 2002)

(i) an amusement ride within the meaning of the Amusement Rides (Safety) Ordinance (Cap. 449) or any mechanical device (other than such an amusement ride) which is designed for amusement;

(j) a dance party.

2. In this Schedule “stage performance” (舞台表演) includes a tragedy, melodrama, comedy, farce, pantomime, revue, burlesque, burletta, shadow play, an exhibition of dancing, conjuring or juggling, an acrobatic performance and any other stage event including an interlude.

3. In this Schedule, “dance party” (跳舞派對) means an event with all of the following attributes–

(a) music or rhythmic sound of any kind or source is provided at the event;

(b) the primary activity at the event is dancing by the persons attending the event;

(c) either–

(i) the number of persons attending the event exceeds 200 on at least one occasion during the event; or

(ii)  any part of the event occurs between 2 a.m. and 6 a.m.”

21.  As we shall see, the construction issue revolved around these definitions.

The POO regime

22.  The POO regime has been extensively reviewed by the Court of Final Appeal in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229.  The Commissioner of Police [“the Commissioner”] is empowered to regulate public gatherings and public meetings under the POO.  In respect of public meetings, an organizer is required by Section 7 of the POO to notify the Commissioner in advance and he may prohibit the holding of such meeting if he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.  But he shall not exercise such power of prohibition if such concerns can be addressed by the imposition of conditions governing the holding of such meeting.

23.  For present purposes, the following concepts defined under Section 2 of the POO should be noted.

“ “meeting” (集會) means any gathering or assembly of persons convened or organized for the purpose of the discussion of issues or matters of interest or concern to the general public or a section thereof, or for the purpose of the expression of views on such issues or matters, and includes any gathering or assembly of persons whether or not previously convened or organized at which any person assumes or attempts to assume control or leadership thereof for any such purpose; but does not include any gathering or assembly of persons convened or organized exclusively–

(a) for social, recreational, cultural, academic, educational, religious or charitable purposes, or as a conference or seminar bona fide intended for the discussion of topics of a social, recreational, cultural, academic, educational, religious, charitable, professional, business or commercial character;

(b) for the purpose of a funeral;

(c) for the purposes of any public body; or

(d) for the purpose of carrying out any duty or exercising any power imposed or conferred by any Ordinance;

“procession” (遊行) means a procession organized as such for a common purpose, and includes any meeting held in conjunction with such procession;

“public gathering” (公眾聚集) means a public meeting, a public procession and any other meeting, gathering or assembly of 10 or more persons in any public place;

“public meeting” (公眾集會) means any meeting held or to be held in a public place;

“public place” (公眾地方) means any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, and, in relation to any meeting, includes any place which is or will be, on the occasion and for the purposes of such meeting, a public place;

“public procession” (公眾遊行) means any procession in, to or from a public place.”

24.  In Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, the Court of Final Appeal held that the concept of “public order” under the POO should be narrower than the concept of “ordre public” under Article 16(3)(b) of the HKBoR.  In the context of the POO, the Commissioner should only be concerned with public order in the law and order sense of the expression.

25.  The notification procedure under the POO requires less information to be given by the organizer than the application procedure under the PPEO.  The respective time frame laid down in the ordinances for processing the matter is also different: the POO only requires notification to be given 7 days in advance whilst an application under the PPEO has to be made 42 days before the event.  There are powers to process the matter within a shorter duration under both regimes.  According to information published by the licensing authority, for functions not requiring erection of any temporary structure, the application could be submitted 18 days in advance.

26.  As mentioned in the Agreed Facts, on 11 May 2011 the Commissioner issued a Notice of No Objection to the IDAHO being held subject to compliance with certain conditions.  The conditions were,

“條件

4． 根據《公安條例》(第245章)第11(2)條，為維護公共安全及公共秩序（“維護公共秩序”在本信中指公眾秩序及防止擾亂公眾秩序），警務處處長可以行使酌情權，就已作出通知的公眾集會施加條件。處長考慮過擬舉行的公眾集會細節後，根據相稱性原則，認為施加以下條件是合理和有需要的:-

(i) 警方將根據你通知是次公眾集會的時間及地點，調派人員於你舉行公眾集會期間提供協助，集會的時間若臨時更改可能會影響警方對你舉行的公眾集會而作出的人員調配，因而影響我們向其他公眾人士提供緊急服務的能力，繼而影響公共安全，及導致公共秩序受到影響。因此，其中一項條件是你的集會須於二零一一年五月十五日(星期日)下午三時正至同日下午五時正在香港銅鑼灣學光百貨外駱克道行人專用區舉行;

(ii) 警方會根據你通知書的參與者人數，調派足夠人員協助你順利地進行集會。派出的警務人員的數目會影響警隊在本港的其他服務，當中色括我們對緊急事故的應變。此外，參與者人數的多寡亦會影響集會所需的時間，繼而影響公共安全。因此，其中一項條件是若你知道參與者人數將較你在二零一一年四月十五日所遞交的通知書內所提供的250人大幅增加或減少，你必須盡早通知警方；

(iii) 根據過往經驗，基於公共安全及公共秩序，你須提供足夠的糾察人員以維持集會期間的良好秩序，並須向警方提供聯絡人士的資料，以便警方於需要作出溝通時與他們聯絡。再者，糾察員可確保不致出現過份人多擠迫而發生危險的情況。因此，你須按你於二零一一年五月四日與警方開會商討後所遞交的修訂有關集會細節通知書內提供的數目，安排至少4至5名糾察人員在整個集會期間提供協助，同時安排1名救護人員並須配備足夠的醫療設施，以處理集會期間可能發生的意外引致參與人士遭受的輕微損傷;

(iv) 確保參與者在未獲發許可證的情況下，不得擅自進行任何籌款、貴旗或為獲取捐款而交換徽章、紀念品或類似物件的活動，否則有可能被檢控;及

(v)     根據我們的經驗，公認的組織者向參與者發出的訊息是十分有效，能協助警方維護公共安全及維護公共秩序。因此，在整個集會進行期間，你及你指定的代表須與在這個公眾集會執勤的警務人員保持聯絡，並在警務人員提出要求時，協助警方與參與者溝通。”

The right to demonstrate at public place

27.  The right of a citizen to demonstrate at public place was considered in Yeung May Wan v HKSAR (2005) 8 HKCFAR 137.  In its judgment, the Court of Final Appeal discussed how the constitutional right to demonstrate (protected by Article 27 BL and Article 16 HKBoR) impacted upon the offence of obstruction of a public place under Section 4(28) of the Summary Offences Ordinance Cap 228. The court analysed the offence in terms of two limbs,

(a) There must be an act which directly or consequentially causes an obstruction to a public place; and

(b) That act must have been done without lawful authority or excuse.

28.  The second limb was important in relation to the exercise of freedom of demonstration at public place.  At paras 42 to 44, the majority discussed what constituted reasonable and usual use for the highway and the need to strike a balance between possibly conflicting interests of different users based on a requirement of reasonableness which is a matter of degree depending on all the circumstances, including the extent and duration of a particular event which causes obstruction, the time and place where it occurs and the purpose for which it is done.  At para 44, the following was said in respect of demonstration,

“Where the obstruction in question 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 recognized and given substantial weight when assessing the reasonableness of the obstruction. Whilst 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.”

29.  For an instance where the exercise of right to demonstrate was held to be unreasonable, see Secretary for Justice v Matt James Pearce HCMA 1078 of 2008, 11 June 2009, Hartmann JA.

30.  In the present case, the organizer of IDAHO did not have any exclusive right to occupy the pedestrian precinct.  When that portion of the street was used for the event, the organizer only exercised her right to demonstrate at public place.  There is no suggestion that such a use exceed the bounds of reasonableness.  As such, the holding of the event at Lockhart Road would not be an offence of obstruction.  The issue of Notice of No Objection by the Commissioner implies that the obstruction occasioned by the demonstration was done with lawful authority.

31.  However, since the organizer did not have any exclusive right of occupation, she did not have the power to exclude other citizens from that portion of the street.  But as discussed further below, the police did have the duty and power to maintain law and order including proper crowd control.  Such duty and power should be exercised with due regard to the positive duty to facilitate peaceful demonstration.  This positive duty was highlighted by the Court of Final Appeal in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at paras 22 to 24.  At para 22, it is said,

“… the right of peaceful assembly involves a positive duty on the part of the Government, that is the executive authorities, to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully. However, this obligation is not absolute for 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.”

32.  In Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797, A Cheung J (as he then was) applied these principles alongside with the police’s duty to keep the peace in assessing the legality of police action to remove demonstrators in the wake of imminent breach of the peace in terms of the behavior of counter-demonstrators.  His Lordship referred to the recent English authorities on the topic: R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 and Austin v Commissioner of Police of the Metropolis [2008] QB 660 and [2009] 1 AC 564.  For present purposes, it is relevant to pay regard to the emphasis on proper and advance preparations to deal with a potential situation where breach of peace may occur.  At para 32, A Cheung J said,

“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 …”

33.  This proposition was derived from para 35 of the judgment of the English Court of Appeal in Austin v Commissioner of Police of the Metropolis [2008] QB 660,

“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 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.”

34.  The present case does not concern with any breach of the peace.  However, in my judgment, one can still derive valuable guidance from these propositions, stemming as they were from the concepts of necessity and proportionality which are equally applicable in the context of permissible restrictions on the freedom of demonstration.  In particular, when there are potential issues of public safety being involved in respect of a public demonstration, the duty to facilitate such demonstration has to be exercised with regard to the need to protect the safety and well-being of every citizen who might be present at the scene including those not participating and those not interested at all in the demonstration.  Whilst the police does have the necessary powers to deal with different contingencies with regard to the maintenance of law and order and the keeping of public safety, including the power to take actions which might affect innocent third parties in the vicinity, the concepts of necessity and proportionality demand proper and reasonable preparations and precautions to be made in advance at the stage when a public demonstration is planned and when the necessary licence is granted or no objection is given.  Thus, the duty to make proper and reasonable advance preparation and precautions does not fall upon the police alone.  It is a duty shared between the organizer of the demonstration and the relevant public authorities who as part of the executive arm of the government, as we have seen, have a positive duty to facilitate a peaceful demonstration.

The power and duty of the police in crowd control in public place

35.  Section 10 of the Police Force Ordinance Cap 232 [“PFO”] provides that the duties of the police force include the taking of lawful measures for, amongst other things,

“(a) Preserving the public peace; (c) Preventing injury to life and property; (e) regulating processions and assemblies in public places …; (g) preserving order in public places … at public meetings and in assemblies for public amusements …”

36.  The performance of such duties necessitated the police being empowered to restrict access to a public place where there are reasonable grounds to believe there is a danger of over-crowding.  This power is reinforced by Section 17(2) and (3) of the POO in respect of police power over public gatherings. This was the conclusion reached by Justice Bokhary (as he then was) in his Final Report on the Lan Kwai Fong Disaster published in Feb 1993, see paras 7.4 to 7.14 of the Report.  At para 7.15, Justice Bokhary said the test is whether something is reasonably necessary for safety.

37.  As we have seen above, the powers of the police can also be exercised to prevent a breach of the peace.  In this connection, section 17(2) of the POO gives a police officer of or above the rank of inspector to stop, dispense or vary the place or route of a public gathering which he reasonably believes likely to cause or lead to a breach of the peace. 

38.  Under Section 9 of the POO, the Commissioner of Police may prohibit the holding of a public meeting where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.  But he should only do so when these concerns cannot be addressed by imposition of conditions under Section 11(2).

Concerns addressed by the PPEO

39.  Though public safety is one of the issues which the police must have regards to in the exercise of the power under the POO and PFO, it is also addressed by the licensing application procedures laid down by the PPEO in respect of occasions coming within the scope of this ordinance.

40.  I have referred to the description by the Principal Assistant Secretary of the matters for which regulations could be made under the predecessor of the PPEO.  Over the years, the list has expanded.  As regards places of public entertainment other than theatres and cinemas, Regulation 162 of the Places of Public Entertainment Regulations [“PPER”] set out how an application for a PPEO licence would be processed.  In particular, I will set out sub-paras (2), (3), (7) and (8) of that regulation to give a fair idea as to the extent of details that the licensing authority need to examine in order to ensure public safety is not compromised.

“(2) If the licensing authority does not reject an application sent to it under paragraph (1) it shall forward a copy of the application, together with a copy of any documents and particulars furnished in support of the application under this regulation, to–

(a) the Commissioner of Police;

(b) the Director of Fire Services;

(c) (i) in case the application relates to any place which is under the control of the Housing Authority, the Director of Housing;

(ii) in case the application relates to a vessel, the Director of Marine; or

(iii) in case the application relates to any other place, the Building Authority; and

(d) in case the application relates to any place in which laser equipment is, or is proposed to be, installed, the Director of Electrical and Mechanical Services.

(3) Except in the case of a vessel, the applicant under paragraph (1) shall supply in quadruplicate, or, in case the application relates to any place in which laser equipment is, or is proposed to be, installed, in quintuplicate, to the licensing authority not less than 28 days before the commencement of the proposed entertainment, or such lesser period as the licensing authority may allow–

(a) a plan showing to the satisfaction of the licensing authority the layout of the place to which the application relates including, in particular, each of the following–

(i) each part of the place intended to be used for holding entertainment;

(ii) each part of the place intended to be used for seating or otherwise accommodating an audience (if any);

(iii) each existing and any proposed exit route from the place;

(iv) the position or location in the place of any existing or proposed permanent structure;

(v) each part of the place in which it is intended that temporary barriers may be erected or otherwise provided;

(vi) the proposed or actual location in the place of all sanitary fitments;

(vii) the proposed or actual location in the place of fire service installations and equipment;

(viii) all or, as may be appropriate, any 1 or 2 of the following means by which ventilation of the place, or any part thereof, is provided, namely, windows, ducts or any mechanical means;

(ix) the proposed or actual location in the place of all laser equipment (if any); and

(b) (Repealed L.N. 193 of 1996)

(c) in the case of a temporary structure, diagrams sufficient to illustrate the proposed method of construction and the spacing and scantling of structural members.

…

(7) For the purposes of paragraph (8) the place in respect of which application is made under paragraph (1) shall be inspected at any time prior to the commencement of the proposed entertainment–

(a) by the Building Authority, or a public officer authorized by him in that behalf, for the purpose of ascertaining whether the requirements of paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m), (o), (p), (w) and (x) of regulation 164 have been complied with;

(b) by the Director of Fire Services, or a fire services officer authorized by him in that behalf, for the purpose of ascertaining whether the requirements of paragraphs (n), (q), (s), (t), (u) and (v) of regulation 164 have been complied with; and

(c) in the case of a vessel, by the Director of Marine, or a public officer authorized by him in that behalf, for the purpose of ascertaining whether the vessel may safely be used for the proposed entertainment.

(8)     Subject to paragraph (9), where an application is made under paragraph(l), the licensing authority may, where it thinks fit and on being notified by each of the Commissioner of Police, the Director of Fire Services, the Director of Housing, the Director of Marine, the Building Authority and the Director of Electrical and Mechanical Services, in so far as he has been forwarded a copy of the application under paragraph (2), that he has no objection as regards the application, grant the licence sought under the application.”

41.  See also Regulation 164 in respect of the requirements for temporary structure.

42.  Broadly speaking, the regime deals with issues arising from crowd control, structural safety, fire hazards, mechanical and electrical safety as well as sanitary hygiene.  Thus, the application has to be considered by officials from different government specializing in different areas.  This accounts for the longer processing time as compared with the notification procedure under the POO.

43.  The need for such a detail regime cannot be doubted.  In going through the legislative history concerning the PPEO, one is reminded of the lessons learnt from the tragedy of the Sek Kong Tattoo in 1968 and the Lan Kwai Fong disaster in 1993.  The Sek Kong Tattoo tragedy served as a reminder that structural safety of temporary stands being used in a public event should never be overlooked.  The Lan Kwai Fong disaster taught us much about crowd control. Amendments to the PPEO were made in light of the recommendations of the Commissions of Inquiry held in respect of these incidents.  Over the years, a meticulous and well-designed system has been put in place to safeguard public safety in relation to events held at public place.

44.  The purpose of the PPEO regime is to protect the safety of the members of the public who attend the event held at the place of public entertainment and to avoid disorder in such a place.  Further, as illustrated by the Lan Kwai Fong disaster, those happened to be in the vicinity (but not actually attending the public entertainment) could also be affected in case of emergency and in taking precautions for issues of public safety this must be taken into account.

45.  Though it can be said that there are some common objectives to be served by both regimes, the PPEO regime is much more sophisticated and addressed many issues which the police does not have the expertise to deal with under the POO regime.  Though there is a power on the part of the Commissioner to impose conditions under Section 11(2) of the POO, the POO does not provide for a similar mechanism for the inter-departmental consideration of the safety and hygiene related issues as per the mechanism in the PPEO.

The construction issues

46.  Mr McCoy SC made two main points in respect of the construction of the PPEO.  The first point is that for the purposes of the PPEO the expression “place of public entertainment”, properly construed, does not encompass an open space which is not being enclosed [“the first construction issue”].  The second point is that if the sole or dominant purpose of the event is not for entertainment, it does not come within the meanings of “entertainment” or “public entertainment” for the purposes of the PPEO, as such not governed by it [“the second construction issue”].  On either ground, the organizer of IDAHO was not required to apply for a licence under the PPEO.

47.  On the first construction issue, Mr McCoy referred to the following provisions in the PPEO and the legislative history to support his contention,

(a)     The reference to the general public being “admitted with or without payment” in the definition for “public entertainment” in Section 2.  Counsel further expanded on the implications flowing from the concept of “admission” being deployed in Sections 6(1) and 10(2)(f);

(b)    The reference to the accommodation of the public in the statutory definition for “place of public entertainment” in section 2;

(c)     The regulations made under the PPEO (or its predecessor) with regard to the construction of the licensed building or place, with references to entrances, exists and the concept of entry into the place;

(d)    The provisions for the making of Prohibition Order and Closure Order by way of enforcement under Section 11 of the PPEO.

48.  With respect, I do not think arguments (b) or (c) can be of much assistance in terms of shedding light on the first issue of construction.  An open space which is not enclosed is capable of accommodating the public as much as a building.  As for the regulation of matters which are not apposite for an open space, it has to be considered in the context that the primary objective of the PPEO is public safety and given the variety of forms of public entertainment, there are many aspects of public safety which need to be addressed.  As shown by the width of the definition for entertainment in Schedule 1 and the reference to permanent as well as temporary structures, the PPEO was drafted to cater for a large variety of contingencies.  Thus, it cannot be expected that every regulatory provision in the regime is applicable to all places of public entertainment within the scope of PPEO.  For example, though there are regulations providing for seating, laser equipment, vessel, permanent structures and temporary structures, sanitary fitments, fire service installations and equipment, electrical installation, I do not think it is envisaged by the legislature that the PPEO would only be engaged if the place in question has all these features.

49.  In the definition for “structure” in Regulation 2, there are references to matshed, grandstand and tent.  In Regulation 164(d), there is a requirement that a temporary structure shall not exceed one storey in height.  These are indicia that a place of public entertainment can be an outdoor place.  As a matter of actual application of the PPEO, it has never been confined to indoor premises.  PPEO licences were granted for the Sek Kong Tattoo and the Lan Kwai Fong incident and these events took place in open space or ground.

50.  In his oral submissions, Mr McCoy accepted that a place of public entertainment can be an outdoor place.  However counsel submitted that it has to be a place where there is some form of physical demarcation and the organizer can exercise control by way of admission or non-admission of audience. Counsel said demarcation by way of a line of rope, as in the case of Culley v Harrison [1956] 2 QB 71, will be sufficient.

51.  I have already referred to the definition of “public entertainment” in Section 2.  Section 6 of the PPEO provides for restrictions on authorized sale of tickets for admission to any place of admission.  Section 10 provides for conditions that may be imposed in a PPEO licence.  Section 10(2)(f) is a condition that “specify the maximum number of persons which may be admitted as regards entertainments taking place in the place to which the licence relates and any such term or condition may specify such a maximum as regards entertainments in general or specify 2 or more such maxima as regards specified entertainments of different classes or descriptions”.

52.  By reason of the reference to the concept of “admission”, Mr McCoy submitted that the holding of an event at a place where the organizer has no control by way of admission does not come within the scope of the PPEO.  Counsel cited the following dicta Griffith CJ in the Australian case of Scott v Cawsey (1907) 5 CLR 132 at p 138,

“The term ‘admission’, however, involves the idea of locality, and of the ability of the person who permits the admission to exclude others from the place of entertainment or amusement except with his consent.”

And at p 140,

“The word ‘admission’ … connotes a place from which persons can be excluded.”

53.  That case was decided in the context of the Sunday Observance Act 1780. The purpose and objectives of that piece of legislation is different from the PPEO.  Section 1 of that Act imposed a penalty on the keeper of a disorderly house which was “any house, room, or other place which shall be opened or used for public entertainment or amusement” on Sunday and “to which persons shall be admitted by payment of money or by tickets sold for money”.  Thus admission on payment was an ingredient of the offence. 

54.  In that case, entertainment was provided in a large hall, the admission to which did not require any payment.  However, sitting accommodation was provided at a portion of the hall and the portion was railed off.  Payment had to be made for entering that portion.  The majority held that the place where entertainment was provided was the hall instead of the railed off portion.  Since the admission to the hall did not require any payment, there was no contravention of the Act.  The key issue in that case was whether there was only one place as opposed to two separate places. 

55.  I was also referred to two other cases on the same Act: Williams v Wright (1897) 13 TLR 551 and Culley v Harrison [1956] 2 QB 71.  Mr Mok further referred a case decided under the Betting Houses Act 1853[1] to support the proposition that a place needs not be covered in or roofed and may be an open space.  Having considered these cases, given that the words “place” and “admission” were used in different contexts, they are not directly relevant in the present case.

56.  Closer to the mark is the case of R v Bow Street Magistrates ex p MacDonald CO/2683/93, 14 Dec 1994.  It was a decision of Dyson J (as he then was) under Schedule 12 of the London Government Act 1963.  Section 52 and Schedule 12 of the Act provided for the licensing of public entertainments.  Para 1(1) of Schedule 12 provided no premises (which includes any place) shall be used for public entertainment except under and in accordance with the terms of a licence.  A warrant was issued against a person who always played a guitar with an amplifier in Leicester Square without licence at around the same spot.  He sought judicial review against the issue of the warrant.  Dyson J referred to the dictionary meaning of the word “place” which includes open space in a city and a square.  With regard to counsel’s argument that control of the premises was required before one could be said to be using the place, His Lordship said,

“The use of premises may or may not carry with it the right of control of the premises. The word ‘use’ is an ordinary English word and it is different from ‘control’.”

Later he continued,

“In my view, whenever the applicant played his guitar in Leicester Square, he was using the Square even though he had no control of it. Was he using a ‘place’? Whether one adopts the dictionary definition, or the definition suggested by Lord James of Hereford[2], it seems to me he was. The area in question was capable of demarcation and such that a person in it, who was carrying on the activity of a busker, could be found. He was in that area for substantial periods of time and, according to the evidence, always roughly on the same spot….”

57.  The legislative scheme under Schedule 12 is less detail than our PPEO.  It would appear from the judgment of Dyson J that the concern under the Act was more in respect of nuisance and obstruction.  This can be gathered from the following observations on which Mr Mok also placed great reliance,

“As he says, there are other means of controlling unacceptable activity in open spaces, for example, by prosecution for obstruction of the highway, or for public nuisance. That may be so, but it seems a most unlikely reason for deciding not to extend the detail regime of control in Sch 12 of the Act for public entertainment in open spaces. One would have thought that since public entertainment in open spaces is likely to impinge on more members of the public than such entertainment inside the ring, the need for rigorous and detailed control of such public entertainment was all the greater.”

58.  Though there was no reference to “admission to the premises” in the London Government Act, para 12 of Schedule empowers the police to “enter” such premises.

59.  Having deliberated on the submissions of Mr McCoy and Mr Mok, I come to the conclusion that there is no requirement that the user of the place of public entertainment must have full and exclusive control over who can or who cannot remain at the place.  In the present context, it is not necessary for me to decide whether a busker is required to obtain a PPEO licence and I shall leave the point open.  However, having regard to the main purposes of the PPEO as discussed above, I am of the firm view that the definition of “public entertainment”, with its reference to the admission of general public, should not be construed as excluding the application of the PPEO to an organized public entertainment held at a public place like part of a street or other pedestrianized area where the organizer does not have exclusive right of occupation.  As submitted by Mr Mok, the need to ensure public safety and to maintain public order is more pronounced when a public entertainment is held at a public place.

60.  Whilst I accept that admission does connote some kind of control, such control can take many forms.  In the context of an event held at public place, crowd control is exercised not only by the police but also the organizer of the events.  As we have seen in respect of the No Objection letter for IDAHO, one of the conditions imposed was that the organizer must provide sufficient numbers of marshals to safeguard the good public order of the event.  Such marshals exercised a degree of control as to the admission of people into the place in question. 

61.  As observed by A Cheung J in Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797 at para 24, every ordinary citizen has the power and duty to prevent a breach of the peace in his presence.  What His Lordship said at para 25 applied as much to an ordinary citizen as a police officer,

“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 [and the citizen concerned] can choose the option or combination of options that best fits the circumstances …”

62.  Thus, even though an organizer of an event held at public place does not have the exclusive right to occupy the place, during the course of the event the marshals deployed by the organizer have the power and duty to prevent any imminent disorder which would constitute a breach of the peace.  Such power can also be exercised for the purpose of crowd control.

63.  Further, if necessary, the marshals can request assistance from police officers who would invariably be present on such an occasion for which either PPEO application has been made or notification under POO has been given.  Special powers are given to the police under Regulation 174 of the PPER to order the closure or vacation of the place in cases of emergency or for the prevention of disorder.

64.  These, in my judgment, are sufficient control to satisfy the criterion of admission.

65.  As regards the demarcation of the place, the evidence shows that it could be done even though it was just a portion of the Lockhart Road.  The organizer had no difficulty in identifying the area where the intended event was to be held in the original PPEO application which was subsequently withdrawn.  In Hong Kong, we are familiar with street bazaars and street festivals.  As mentioned, PPEO licence was applied and granted in the Lan Kwai Fong case.  In this connection, given the purpose of the PPEO and the matters to which the licensing authority is to have regard, in the context of an application for a place which is part of a street, I am of the view that the demarcation can be more rough and general (as in the MacDonald case) as compared with the cases decided in the context of other legislations serving different purposes.

66.  Coming to the argument based on enforcement by way Prohibition Order and Closure Order under Section 11, it is said that these orders would not be appropriate for a public place which is accessible to the public for multi-purposes.  Further, Mr McCoy drew attention to the prescribed form of a prohibition order which is addressed to the occupier of the place.  He submitted that the organizer of an event at the street is not an occupier.

67.  I do not agree that the organizer can never be regarded as an occupier of the portion of the street when the event took place.  Take the IDAHO as an example, a stage had been erected at the street for the purpose of the event.  It is at least highly arguable that the organizer was, in law, the occupier of the stage.

68.  In any event, I do not think one can attach too much significance to the non-applicability of these enforcement measures to the event in question.  Since these measures only take effect only as from the 8^th day after the relevant orders have been served[3] and the orders can only be made after giving 14 days’ notice[4], they are of little use in terms of temporary event which does not last longer than 21 days.  But the inapplicability of these enforcement measures does not mean that such event is outside the scope of the PPEO.  It only means that the authority needs to resort to other means of enforcement.

69.  I see no reason why in the context of the PPEO and the definition for “place of public entertainment” the word “place” should not be given its ordinary meaning which includes an open space or a portion of a street which is not enclosed.  I conclude that the first construction issue cannot prevail.

70.  I turn to the second construction issue.  This depends on the proper construction of the definition for “entertainment”.  The statutory definition in Section 2 of the PPEO refers to the event, activity or other thing specified in Schedule 1.  I have commented that Schedule 1 cast a very wide net.

71.  Having watched the video produced by the parties taken in respect of IDAHO, I am of the view that part of the event was an exhibition of dancing, as such coming within the meaning of “stage performance” under Schedule 1.

72.  Mr McCoy submitted that a political demonstration cannot be an entertainment.  He submitted that the word “entertainment” must be given its ordinary meaning and the dictionary meaning of the word is “amusement” and “a public performance or exhibition intended to interest or amuse”.  In the alternative, he said “entertainment” within Schedule 1 only becomes a “public entertainment” if the sole or dominant purpose of admission is for “entertainment”. Where the sole or dominant purpose of the admission is for some other purposes such as a public meeting or a political demonstration, “entertainment” incidental to that purpose should not be regarded as “public entertainment”.

73.  Since the PPEO has its own definition for “entertainment”, I do not think much insight can be gained from looking at the dictionary meanings.  Whilst one can understand that in ordinary casual conversation, the word “entertainment” usually takes account of the amusement contents of the event, it would be difficult to adopt the same approach for the purpose of a regulatory regime aiming at protecting public safety.  Whether an event is amusing is always a matter of subjective opinion and different people might have different assessments.  This cannot be a good criterion to distinguish between events governed by the regulatory regime and those not so governed.  Further, it should not be a relevant criterion in the context of the PPEO because irrespective of the degree of amusement the need to have safety precautions adopted in advance for an event which might draw attendance by members of the public is the same.  This explains why there is no reference to the amusement level of the event in the statutory definition.

74.  As regards the argument of dominant purpose, the same counter-argument applies.  The need to have a regulatory regime in place to protect public safety does not diminish only because the event is organized with a dominant purpose not associated with amusement of the audience.  I do not see any scope within the statutory language for grafting this test of dominant purpose into the definition for public entertainment in the PPEO. 

75.  Moreover, public demonstration and public entertainment are not necessarily mutually exclusive.  A political message, like other ideas, can sometimes be more effectively conveyed in a form which is amusing and entertaining.  It is up to the person who wishes to voice his or her political stance publicly to choose the mode and means of doing so.  If the means chosen involves a form of expression coming within the scope of Schedule 1 of the PPEO, the law imposes an obligation to apply for a PPEO licence and, subject to the argument as to constitutionality, there is no reason why he or she should be exempted from such obligation. 

76.  As it were, in his oral submissions Mr McCoy told this Court that he advanced the dominant purpose argument only in the context of his constitutional challenge, but not in the context of the construction issues.

77.  I therefore reject Mr McCoy’s contentions in respect of the second construction issue.

The constitutional issues

78.  The constitutional issues arise because in holding IDAHO the organizer was exercising her constitutional rights in freedom of public demonstration and assembly and freedom of expression.  I have referred to the freedom of demonstration and assembly at public place in the earlier part of this judgment. For present purposes, I do not see any material difference if the matter is analysed in terms of freedom of expression.

79.  I have alluded to the relevant constitutional provisions in the above discussion on the right to demonstrate at public place.  Article 27 of the Basic Law should be read together with Article 39(2).  The right to demonstrate is also guaranteed under Article 17 HKBoR.  Thus, as decided by Chief Justice Li in Gurung Kesh Bahadur v Director of Immigration (2005) 5 HKCFAR 480 at para 27, whether a restriction on such right is permissible should be determined by reference to the limits set out in the relevant article of the HKBoR, viz Article 17.  Therefore, I shall only set out Article 17.

“ Article 17

Right of peaceful assembly

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

80.  I accept that the requirement in the PPEO amounts to a restriction to these constitutional rights. The crucial question is whether the restriction is constitutionally sustainable.

81.  Mr McCoy submitted that the restriction in the PPEO is unconstitutional because,

(a) It is not prescribed by law; and

(b) It is out of proportion and not necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

82.  Counsel said the PPEO is not “prescribed by law” because it conferred a discretionary power on public officials which does not give adequate indication of the scope of the discretion. Mr McCoy prayed in aid the principles set out at paras 26 to 29 of Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229.

83.  As held by the majority of the Court of Final Appeal in that case, at para 28, the appropriate level of precision must depend on the subject matter of the law in question.

84.  In this respect, I agree with Mr Mok that in the context of the scope of the PPEO and the variety of issues which may arise as regards public order and public safety, the ambit of the regulatory regime under the PPEO scheme must necessarily be a wide one. But width is not to be confused with uncertainty. The PPEO has a set of clear and precise definitions to identify the matters governed by it. I am of the view that its provisions can enable a citizen to foresee with reasonable certainty the consequences of a given action, to know what rules are applicable and how he might lawfully conduct himself in accordance with the rules. It also sets out clear criteria to enable the licensing authority to exercise the discretionary power within its legitimate limits.

85.  I reject Mr McCoy’s submission on uncertainty.

86.  As regards the challenge on proportionality and necessity, Mr McCoy referred to the proportionality test at para 36 of  Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229,

“As the legitimate purposes that may be pursued by any restriction on the right of peaceful assembly have been constitutionally specified in Hong Kong, the proportionality test should be formulated in these terms: (1) the restriction must be rationally connected with one or more of the legitimate purposes; and (2) the means used to impair the right of peaceful assembly must be no more than is necessary to accomplish the legitimate purpose in question.”

87.  Mr McCoy said the legitimate purpose of PPEO has not been made clear. I do not agree. It is quite plain from the legislative scheme that the licensing requirement under the PPEO is for ensuring public safety and public order and, in the context of public entertainment at public places like a portion of a street, to protect the rights of other members of the public who are in the vicinity. These objectives plainly fall within the scope of legitimate purposes under Article 17 HKBoR.

88.  The licensing conditions and requirements, as provided by the PPEO and PPER, are rationally connected to these purposes. The need for such a regime is amply demonstrated by the Sek Kong Tattoo incident and the Lan Kwai Fong incident. In the context of IDAHO, the structural safety of the stage would impinge upon not only those participants who performed on the stage but also those pedestrian who happened to be in the vicinity in case of any mishaps. Further, there could be unforeseen emergencies (as in the case of the Lan Kwai Fong incident) which an organizer might not be able to cope with. The PPEO regime provides a sensible and effective pre-event risk assessment mechanism involving all responsible government officials to ensure proper precautionary steps are taken.

89.  Coming to the question whether the regime of PPEO is within the bound of “no more than necessary to accomplish the legitimate purposes”, the observations of Chief Justice Ma in Fok Chun Wa v Hospital Authority FACV 10 of 2011, 2 April 2012 paras 75 to 79 must be borne in mind. We are not dealing with a matter within the socio-economic policy of the government. Freedom of assembly and demonstration is a fundamental right in Hong Kong. As the Chief Justice said at paras 75(6) and 79, in this area, the court will be particularly stringent or intense in the application of the justification test. 

90.  In this respect, Mr McCoy did not attack the proportionality of the requirements under the PPEO per se.  Having regard to the safety, security and other issues which the PPEO regime legitimately deals with, the procedure and the requirements imposed on an organizer are, in my view, proportionate and necessary.

91.  Rather counsel submitted that the question of public safety and order has already been addressed by the POO, including conditions which could be imposed by the Commissioner of Police under Section 11(2). Thus, the additional regime under the PPEO is unnecessary, as such it fails to meet the last limb of the test.

92.  Mr McCoy also referred to the difference in the processing time in the Notification procedure under the POO and a licence application under the PPEO.  I have already referred to the possibility of a shorter time frame for a PPEO application. The longer time frame is necessitated by arrangement for inspection of temporary structure by officials from the Building Authority.

93.  I think counsel has not taken into account of the need for approval from the Building Authority in respect of any temporary structure or building in any event.  In respect of temporary structure approved under the PPEO regime, it will be exempted from the Buildings Ordinance under Section 41(4) of the Buildings Ordinance. Otherwise, by reason of the definition for “building” and “building works”, approval for building works has to be obtained under that ordinance.

94.  As I have explained above, the PPEO regime addresses some aspects relating to public safety and ordre public (in the wide sense) which the POO does not address. Though there are overlaps, the two regimes are complimentary to each other. I do not think the possibility of imposing conditions under Section 11(2) of POO can serve the same function as the well-developed regime under the PPEO. On proper appreciation as to the role and function of the two regimes, I do not think the licensing requirement under the PPEO is a more than necessary for safeguarding public safety and ordre public.

95.  I hold that the constitutional challenge fails.

Disposal

96.  The application for judicial review is dismissed.  I shall hear parties on the costs of the application on a date to be fixed in consultation with counsel’s diaries.

Agreed Facts