MTR CORPORATION LTD v. CHOW NOK HANG

HCMA 589/2017

[2018] HKCFI 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 589 OF 2017

(ON APPEAL FROM FLS NO 11315 OF 2016)

_______________________

_______________________

_______________________

J U D G M E N T

_______________________

A. Introduction

1.  This is an appeal by way of case stated by the MTR Corporation Limited (the “Corporation”), acting as prosecution in these proceedings, against the Deputy Magistrate’s decision to acquit the defendant, Mr Chow Nok Hang.

2.  The defendant was charged under sections 21(1) and 43 of the Mass Transit Railway By-laws, Cap 556B (“MTR By-laws”) in that he, while on the railway premises at MTR Tai Wai Station, failed to comply with a reasonable direction and request of a MTR official, namely, to stop using a loudspeaker for broadcasting and to leave the station.

3.  Section 21 of the MTR By-laws provides that: -

“(1) Every person while on the railway premises shall comply with these by-laws and with all notices, indicators and all reasonable directions and requests of any official.

(2) Without prejudice to paragraph (1), if an official determines that a train is full, no person shall enter or remain therein if directed by such official not to do so.”

4.  Section 43 of the MTR By-laws provides that: -

“a person who contravenes a by-law set out in the first column of Schedule 2 commits an offence and is liable to the penalty set out in the third column of that Schedule opposite the reference to that by-law”.

Section 21 is listed in the first column of Schedule 2 to the MTR By-laws.

B.   Findings of Fact

5.  The Deputy Magistrate’s findings of fact were as follows: -

(1)   MTR Tai Wai Station (the “Station”) qualified as railway premises, and Mr Wong Kam Sing (“Mr Wong”) was at the material time a staff member of the Corporation.

(2)   On 9 March 2016 at around 6:26 pm, in the paid area of the Station, Mr Wong as a uniformed staff member of the Corporation, saw around 15 individuals (including the defendant) gathering at the centre of the paid area.

(3)   Those individuals placed (i) a 20 inches x 25 inches x 23 inches table; (ii) a banner; and (iii) a loudspeaker, in that area.  They were occupying a 3 metres x 10 metres area (“Occupied Area”).  Some of those individuals were displaying a banner and distributing leaflets to passengers. 

(4)   The defendant was also using the loudspeaker for broadcasting and to ask for passengers’ signatures.

(5)   Some of those individuals were collecting passengers’ signatures to voice their opposition towards the construction of the high-speed rail link between Hong Kong and the Mainland.

(6)   Around 10 passengers stayed around 20 meters away from the Occupied Area, listening to those protesting individuals. 

(7)   Mr Wong asked the defendant and other demonstrators to (i) stop broadcasting via the loudspeaker and stop demonstrating and collecting signatures within the railway premises (“Loudspeaker Direction”), and (ii) leave the railway premises (“Departure Direction”) (collectively, “Directions”).

(8)   The defendant replied that he would not leave the railway premises and continued to demonstrate.  He also did not cease broadcasting via the loudspeaker.  The defendant and other demonstrators continued to display the banner, distribute leaflets, collect signatures, use the loudspeaker, and demonstrate.  They did not leave immediately.

(9)   Mr Wong and one Mr Chui Chung Kwan (another staff member of the Corporation) requested the defendant to comply with the Directions on 3 separate occasions but in vain.  Mr Wong warned the defendant that he was in contravention of section 21 of the MTR By-laws. 

(10)   Mr Wong asked the defendant to produce his ID document(s), his address and his phone number for prosecution purposes, and then at 6:40 pm served a Notice of Intended Prosecution for Breach of Mass Transit Railway By-laws/Mass Transit Railway (North-West Railway) Bylaw (“Notice of Intended Prosecution”) on the defendant.  The defendant and his associates left the station at a time thereafter.

(11)   The Deputy Magistrate found that the defendant, while on the railway premises, failed to comply with a direction and request of an official of the Corporation, namely: “please stop using the loudspeaker for broadcasting (i.e. the Loudspeaker Direction) and leave the station (i.e. the Departure Direction)”.

6.  As regards the impact of the activities of the defendant and his associates, the Deputy Magistrate’s findings were as follows: -

(1)   The demonstration activities took place inside the paid area of the Station’s premises.

(2)   The demonstration had only lasted for 15 to 20 minutes when Mr Wong served the Notice of Intended Prosecution on the defendant.

(3)   The lobby of the paid area is a spacious one, and the impugned actions of the defendant and his associates only took up a small part of the paid area, whereby passengers could still get through the demonstration or otherwise circumvent so with extra 10 or so steps.

(4)   The relevant protestors were 10 metres away from the turnstiles, which were not obstructed by them.

(5)   The defendant and the other individuals were not radical, and there was no evidence to support that it would turn violent.

(6)   Mr Wong claimed that a number of passengers made oral complaints to him, but there were no written records of those complaints, even though Mr Wong admitted that he should have endeavoured to have a written record thereof.

(7)   The demonstration caused some minor obstruction to the operation of the Station.  On the other hand, some passengers were staying and listening to the protestors.  Ordinary citizens should be able to tolerate the obstruction.

(8)   The protestors were by and large gathering against a fairly large column in the station, and were protesting at some distance from the passageways such that there was no direct conflict in terms of traffic.

(9)   Mr Wong could have asked the protestors to (i) reduce the volume of the loudspeaker; (ii) move to a less congested area; or (iii) reduce the size of the Occupied Area.

C.   The Deputy Magistrate’s Decision

7.  In his decision, the Deputy Magistrate found that: -

(1)   The defendant while on the railway premises intentionally failed to comply with the Directions.

(2)   The major outstanding element was the reasonableness of the Directions.  On this, the Prosecution had failed to prove beyond reasonable doubt the necessity or urgency of the Directions, and acquitted the defendant, on the following grounds: -

(3)   The defendant was demonstrating and/or exercising his freedom of speech and/or expressing his opinion.  His freedom of speech, freedom of assembly and freedom of demonstration (“Protected Rights”) were protected by Article 27 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights (“BOR”) set out in section 8 of the Bill of Rights Ordinance, Cap.383 (“BORO”).

(4)   The paid area of the Station was a public place.

(5)   The Protected Rights cannot be lawfully restricted, unless the restriction is (a) prescribed by law; and (b) necessary and proportionate to the achievement of a legitimate aim.

(6)   The issue is whether the Directions were necessary and proportionate to the achievement of a legitimate aim, in this case the protection of the safety and rights of the other passengers.  If the Directions were unnecessary or disproportionate, then they would also be unreasonable.

(7)   On the facts, the prosecution had failed to prove beyond reasonable doubt the necessity or urgency of the Directions.  It follows that the prosecution had failed to prove beyond reasonable doubt that the Directions were reasonable. 

D.   The Legal Issues in this Appeal

8.  The parties agree that the following legal issues are engaged in the present appeal: -

(1)   Is the paid area of the Station a public place for the purpose of determining whether and, if so, to what extent the rights to freedom of speech, freedom of assembly and freedom of demonstration are relevant in this case? (“the Public Place Issue”)

(2)   On the basis that section 21 of the MTR Bylaws is constitutional, what is the test for the reasonableness of a direction made under such provision?  In particular, is the interpretation of section 21(1) adopted in this case correct, namely, that the prosecution must prove beyond reasonable doubt that the “directions or requests of any official” must be “reasonable” in the sense that they are “necessary and proportionate” as these tests are used in the context of determining the constitutionality of a statutory provision or government decision? (“the Reasonableness Issue”)

(3)   What are the relevant considerations to be taken into account in determining the reasonableness or otherwise of (i) the Departure Direction and (ii) the Loudspeaker Direction? Having regard to all the relevant considerations, and disregarding the irrelevant considerations, did the Deputy Magistrate correctly hold that (i) the Departure Direction and (ii) the Loudspeaker Direction were not proved to be reasonable and rightly acquit the defendant on such basis? (“the Acquittal Issue”)

E.   The Fong Kwok Shan Decision

9.  The above issues have to be considered in light of the decision of the Court of Final Appeal (“CFA”) in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425.

10.  In that case, the appellant and others attended a Legislative Council (“LegCo”) subcommittee meeting at the public gallery above Conference Room 1 in the LegCo complex when she removed her jacket so that the characters保衛將軍澳 were displayed on the T-shirt she was wearing.  She also handed to one of her assistants a paper poster depicting a Nazi Swastika with the characters毒氣集中營 – 堆填區 which he displayed by holding it against the glass panel which walled off the public gallery above the conference room.  This led to a commotion as security guards sought to seize the sign, leading to one guard sustaining bruising on her left wrist.  The incident caused the subcommittee meeting to be prematurely adjourned.  Further, at a second meeting, the appellant and others in the public gallery chanted slogans opposing the project, causing the subcommittee’s chairman to warn them that they would be ejected if they did not stop.  As the warnings were ignored and the appellants and others linked arms to resist ejectment, the meeting was stood down and reconvened in a different conference room about an hour later with the public excluded from attendance.

11.  The appellant was charged jointly with another with contravening section 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Persons (“AI”), which was issued by the President of LegCo pursuant to section 8(3) of the Legislative Council (Powers and Privileges) Ordinance (“LCPPO”).

12.  AI section 12 provides: -

“Section 12: Conduct in galleries

(1) No person shall, in a press or public gallery, display any sign, message or banner.

(2) No person shall, in a press or public gallery, display any sign or message on any item of clothing.

(3) An officer of the Council may refuse admission to a press or public gallery any person displaying any sign, message or banner, or to any person displaying any sign or message on any item of clothing, or to any person who, in the opinion of an officer of the Council, may so display any sign, message or banner, may so display ay sign or message on any item of clothing or may otherwise behave in a disorderly manner, …”

13.  The appellant was convicted after trial by the Magistrate and fined $1,000 on each charge.  Her appeal was dismissed by Albert Wong J who certified two questions as raising points of law of great and general importance.  These are to the following effect: -

“Whether the enactment of s.11 (and separately, s.12(1)) of the AI pursuant to section 20(b) of the LCPPO is inconsistent with the principle of freedom of speech guaranteed by article 27 of the Basic Law and article 16 of the Bill of Rights, which rendered these provisions unconstitutional.”

The CFA decided the question in the negative, and the appeal was accordingly dismissed.

14.  As submitted by counsel for the Corporation, the following points derived from the Fong Kwok Shan caseare applicable to the present case: -

(1)   Whilst the characterisation of a venue as private or public premises does not per se determine whether a proportionality analysis should be applied to assess the constitutionality of a restriction of Protected Rights, justification for denying access to a private property of the restriction as a measure necessary for the protection of the rights of others has to be given very substantial weight in the proportionality balance.

(2)   For example, in respect of privately-owned shopping malls and similar premises, to which the public are freely admitted in furtherance of the owners’ business interests, it will be rare for a refusal of access amounting to a restriction on the right to freedom of expression to be held to be constitutionally invalid, although such an outcome could be reached in an exceptional case (paragraph 65).

(3)   A purposive construction should be applied to a relevant statutory restriction, having regard to the context and purpose of the restriction.  Thus, section 12 of the AI should be narrowly interpreted to mean that the display of any ‘sign, message or banner’ would only constitute a criminal office if the same entails the risk of disorder in public galleries and which may disturb LegCo sittings and the rights of others observing the proceedings.  Whilst the Court arrived at such interpretation by applying ordinary common law principles of construction, it would not have hesitated to arrive at the same conclusion applying a remedial interpretation if it had been considered necessary.

(4)   In determining whether the restriction is constitutional, the Court has to assess: -

(a)   Whether the restriction is for a legitimate aim, such as to respect the rights of others, or protect the public order or ordre public, the latter being a much wider concept than “public order” encompassing what is necessary for the protection of the general welfare or for the interests of the community as a whole (“1^st Limb”);

(b)   Whether the restriction rationally connected to such legitimate aim (“2^nd Limb”); and

(c)   Whether the restriction does no more than reasonably necessary for accomplishing the said aim.  In considering this question, the court can take into account the fact that the defendant was not prohibited from exercising her Protected Right in other venues or by other lawful means, including campaigning for public support using social media and other forms of public communication (“3^rd Limb”).

(5)   At the end of the day, the court has to determine whether a reasonable balance has been struck between the benefit to society of enabling LegCo properly to carry out its constitutional functions on the one hand and the limited restriction on the guaranteed right of freedom of expression on the other.

F.   Application of the Principles from Fong Kwok Shan

F1.   Nature of the Premises

15.  The Corporation is a publicly listed company limited by shares operating a public utility, and its shares are held by both the Government and members of the public and other investors.  Therefore, the nature of the Corporation is that of a business (as opposed to a Government) enterprise not unlike, for example, a publicly-listed bus company operating a government granted franchise.

16.  The fact that the Government owns shares in the Corporation is neither here nor there.  The Corporation is a separate legal entity.  Thus analysed, the Station must be a privately-owned venue, performing a public function.

17.  Although the Station is owned by such a business enterprise, like a privately-owned shopping mall and similar premises, the public are freely admitted into the Station in furtherance of the Corporation’s business, which is the carriage of passengers on train.  MTR stations are also like shopping malls in that there are in the stations shops and kiosks providing services to both commuters and other members of the public.

18.  Applying Fong Kwok Shan, it will be rare for a refusal of access amounting to a restriction on the right to freedom of expression to be held to be constitutionally invalid, although such an outcome could be reached in an exceptional case.  The question is whether the fact that the relevant part of the premises is the paid area of a MTR station renders this case to be an exceptional one so that a refusal of access by means of the Departure Instruction, coupled with the Loudspeaker Instruction, amounted to a restriction on the right to freedom of expression to be held to be constitutionally invalid.

F.2   Proper Construction of section 21 of the MTR By-laws

19.  A purposive interpretation should be applied to section 21 of the MTR By-laws.  In British Airports Authority v Ashton [1983] 1 WLR 1079, the relevant statutory provision was a byelaw which provided: “No person shall remain on the aerodrome, or any part thereof, after having been requested by a constable to leave.”  The functions of the British Airports Authority were set out in section 2 of the Airports Authority Act 1965, which provides, inter alia, that: “… the authority shall have regard to the development of air transport and to efficiency, economy and safety of operation.” 

20.  One of the issues was whether a constable’s request for the picketers to leave the airport was lawful, it was held that such request had to be “fair and reasonable in the circumstances, having regard to the need to secure the efficient, economic and safe operation of the services and facilities provided at [the airport]”. In that case, since the magistrates had not considered whether the constable’s request to the employees to leave the airport was fair and reasonable in that sense, the case would be remitted to the magistrates.  Specifically, the court held (at 1087F-1088D): -

“As to the second question,

… It is also plain that byelaw 5(58) does not require there to be a previous breach of another byelaw as a condition precedent to a request to leave the aerodrome. However, it was conceded on behalf of BAA that there must be an implied limitation on the power of request in that a request to leave made capriciously would not support a prosecution for failure to leave. We agree that there must be an implied limitation.

…

In the light of Lord Denning MR’s observations, it is our judgment that a request to leave which can found a prosecution under byelaw 5(58) is one which is fair and (in the ordinary sense) reasonable in the particular circumstances in which the request is made. The question at once arises: fair and reasonable having regard to what? We return the answer: fair and reasonable having regard to securing the efficient, economic and safe operation of the services and facilities provided by the B.A.A. at Heathrow aerodrome. We return that answer (which embodies words drawn from what is now section 2 of the Act of 1975) because the BAA’s byelaws must be regarded as operating (and as operating only) in order to secure the proper achievement of the mandate conferred upon the BAA by Parliament.” [emphasis added].

21.  Having regard to the CFA’s approach to purposive interpretation in Fong Kwok Shan, I agree that a similar approach should be adopted on the construction of section 21 of the MTR By-laws.  The functions of the Corporation are set out in, inter alia, section 9(1) of the Mass Transit Railway Ordinance, Cap 556, which provides that: “The Corporation shall maintain a proper and efficient service at all times during the franchise period in accordance with this Ordinance …”.

22.  Applying such approach, for a MTR official’s “direction” to be “reasonable” (at least where one of the Protected Rights is engaged), such direction should have regard to an “implied limitation”, namely, that the direction in question should be “fair and reasonable having regard to maintaining a proper and efficient service at all times” by the Corporation inside the paid area of the Station.  In other words, the reasonableness of the direction has to be construed with reference to section 9(1) of the Mass Transit Railway Ordinance.

F3.   Proportionality Analysis

F3.1   1^st Limb of the Proportionality Analysis

23.  It is plain that the maintaining of a proper and efficient service at all times by the Corporation inside the paid area of the Station is a legitimate aim, namely, to respect the rights of others (ie, the other users of the Station), or protect the public order or ordre public (in the sense of what is necessary for the protection of the general welfare or for the interests of the community as a whole). 

24.  Thus, insofar as section 21 of the MTR By-laws is interpreted in the manner set out in section F2 above, this provision would undoubtedly satisfy the 1^st Limb of the proportionality analysis.  Whilst the court can readily arrive at such interpretation by applying ordinary common law principles of construction (as in British Airports Authority v Ashton), it would not have hesitated to arrive at the same conclusion applying a remedial interpretation if it had been considered necessary, following the CFA’s approach in Fong Kwok Shan.

25.  That said, it has to be emphasized that the constitutionality of section 21 had not been challenged, and is not one of the issues required to be determined at this appeal.

26.  One moves on to consider whether the Loudspeaker Instruction and the Departure Direction made pursuant to section 21 were connected with the maintaining of a proper and efficient service at all times by the Corporation inside the paid area of the Station.

27.  Reference here may be made to the US Supreme Court’s decision in International Society for Krishna Consciousness, Inc v Lee, Superintendent of Port Authority Policy (1992) 505 US 672.  There, the Port Authority adopted a regulation forbidding within the airport terminals the repetitive solicitation of money or distribution of literature.  It governed only the terminals; the Port Authority permitted solicitation and distribution on the sidewalks outside the terminal buildings. 

28.  The majority of the Supreme Court (Rehnquist CJ; White, O’Connor, Scalia & Thomas JJ) concluded that airport terminals are dedicated to the facilitation of efficient air travel, not the solicitation of contributions.  The Port Authority’s restrictions on solicitation and leafletting within the airport terminals do not qualify for the strict scrutiny that applies to restriction of speech in public fora.  As the majority of the court explained (at pp.682, 683): -

“The differences among such facilities are unsurprising since, as the Court of Appeals noted, airports are commercial establishments funded by users fees and designed to make a regulated profit ... and where nearly all who visit do so for some travel related purpose. As commercial enterprises, airports must provide services attractive to the marketplace. In the light of this, it cannot fairly be said that an airport terminal has as a principal purpose promoting ‘the free exchange of ideas’ ...

... Although many airports have expanded their function beyond merely contributing to efficient air travel, few have included among their purposes the designation of a forum for solicitation and distribution activities ... Thus, we think that neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.

The restrictions here challenged, therefore, need only satisfy a requirement of reasonableness ...” [emphasis added].

29.  Specifically, the majority of the court held that the restriction against solicitation was reasonable, since inter alia solicitation had a disruptive effect on business by slowing the path of both those who must decide whether to contribute and those who must alter their paths to avoid the solicitation.  The Port Authority determined that it can best achieve its legitimate interest in monitoring solicitation activity to assure that travellers are not interfered with unduly by limiting solicitation to the sidewalk areas outside the terminals, which are frequented by an overwhelming percentage of airport users.  While the inconvenience caused by the plaintiff may seem small, the Port Authority could reasonably worry that the incremental effects of having one group and then another seeking such access could prove quite disruptive: ibid pp.683-685.

30.  These observations are consistent with the CFA’s approach in Fong Kwok Shan.  I agree with the Corporation’s submissions along the same line as follows: -

(1)   A distinction may be drawn between the paid area of a MTR station on the one hand and the outside area of a MTR station on the other.  The latter comprises retail outlets and walkways (in addition to being premises to enable ingress and egress to and from the paid area of the Station).  In many ways, the outside area resembles a shopping mall to which the general public is permitted access during the opening hours of a station.  Even in respect of such area, the CFA has stated that it will be rare for a refusal of access amounting to a restriction on the right to freedom of expression to be held to be constitutionally invalid, although such an outcome could be reached in an exceptional case.

(2)   Once a person has swiped the Octopus card to enter the paid area of the Station, it becomes clear that the purpose of such entry is to enable such person, together with other members of the public, to take the train to commute to their respective destination stations.  The purpose of the paid area of the Station is (unlike the outside area) not to enable the public to use the premises as a public walkway or a shopping mall.  The fact that there are also retail outlets inside the paid area does not detract from the essential purpose of the visitors, which is to take the train to another station.

(3)   Needless to say, it is naturally expected that throngs of commuters tend to rush (often in a hurry) to and from the train platforms of the paid area.  Whenever a train arrives at the station, throngs of passengers will walk hurriedly inside the paid area as a crowd.  A demonstration, using loudspeakers to broadcast the message of protest, inside such area would have a disruptive effect on business by slowing the path of both those who decide to stop to listen to the broadcast message and those who must alter their paths to avoid the area occupied by the demonstrators. This consideration (as observed above) was endorsed by the majority of the US Supreme Court in International Society for Krishna Consciousness, Inc as a relevant factor to take into account.

(4)   Moreover (as also observed in the same Supreme Court decision), while the inconvenience caused by a particular demonstrator may seem small, the Station officials could reasonably worry that the incremental effects of having one group and then another seeking such access into the paid area to conduct their respective demonstrations could prove quite disruptive to the maintaining of a proper and efficient service inside the paid area of the Station.  This is a real concern since, if one group is permitted to demonstrate inside the paid area, it would be rationally difficult to deny such access to other groups seeking to demonstrate in the same area [see: Fong Kwok Shan, per Ribeiro PJ at paragraphs 112 and 113].

(5)   Indeed, as found by the Deputy Magistrate in this case, although the passengers could still get through the demonstration, some had to circumvent the demonstration with extra 10 or so steps.  Further, the demonstration did cause some (albeit minor) obstruction to the operation of the Station and there were some passengers staying and listening to the protestors.  The disruptive effect, which is likely to accumulate, once a precedent is set for allowing demonstrations in the paid area, can readily be appreciated.

31.  Having regard to the above, it is plain that the prohibition of demonstrations and the use of loudspeakers for such purpose inside the paid area is for the legitimate aim of maintaining a proper and efficient service inside the paid area of the Station.

F3.2   2^nd Limb of the Proportionality Analysis

32.  The restrictions in this case are rationally connected with accomplishing the aforesaid aim.  It directly operates to restrict disruptive conduct in the paid area of the Station.

F3.3   3^rd Limb of the Proportionality Analysis

33.  The restrictions also do no more than reasonably necessary for accomplishing the said aim.  The Loudspeaker Instruction and the Departure Instruction targeted disruptive behaviour to protect good order and the maintenance of a proper and efficient service inside the paid area of the Station, which is designed for the purpose of enabling the commuters to use the Corporation’s train services.  Exactly the same as in Fong Kwok Shan, the defendant was not prohibited from exercising the Protected Rights in opposition to the construction of the high-speed rail link between Hong Kong and the Mainland in other venues, including in the street outside the Station or other MTR stations.  He was free to canvass support from fellow residents and to lobby elected legislative councillors.  He was free to campaign for public support using social media and other forms of public communication.  What he was prohibited from doing was mounting a disruptive demonstration in the paid area of the Station.

34.  Thus, as in Fong Kwok Shan, a reasonable balance has plainly been struck between the benefit to society of enabling members of the public to commute in the paid area of the Station for the purpose of using the Corporation’s train services on the one hand and the limited restriction on the guaranteed right of freedom of expression on the other.  I agree that both the Loudspeaker Instruction and the Departure Instruction clearly constitute proportionate and valid restrictions on the right.

G.   Answers to the Three Legal Issues

35.  Having regard to the above analysis, I agree that the answers to the three legal issues in this appeal are as follows.

G1.   The Public Place Issue

36.  Having regard to the CFA’s Judgment in Fong Kwok Shan, whether the paid area of the Station is a public place is not relevant in determining whether Protected Rights are engaged.  However, it is relevant in the proportionality analysis as set out above.  For such purpose, it is relevant that the nature of the Corporation is that of a private (as opposed to a Government) business enterprise not unlike, for example, a publicly-listed bus company operating a government granted franchise.  Applying Fong Kwok Shan, it will be rare for a refusal of access to a MTR Station amounting to a restriction on the Protected Rights to be constitutionally invalid, although such an outcome could be reached in an exceptional case; a fortiori, it will be even rarer for such refusal of access to the paid area of a MTR station amounting to a restriction on the Protected Rights to be constitutional invalid, since the use of the paid area is limited for the purpose of enabling members of the public to use the Corporation’s train services to commute to another station (as opposed to, for example, the case of a shopping mall).

G2.   The Reasonableness Issue

37.  Having regard to the CFA’s Judgment in Fong Kwok Shan, on the basis that section 21 of the MTR By-laws is constitutional, the test for reasonableness of a direction is: -

(1)   whether the direction is fair and reasonable having regard to maintaining a proper and efficient service at all times by the Corporation inside the paid area of the Station; and

(2)   whether the “directions or requests of any official” are “reasonable” having regard to the proportionality analysis as set out above.

G3.   The Acquittal Issue

38.  The relevant considerations to be taken into account in determining the reasonableness or otherwise of (i) the Departure Direction and (ii) the Loudspeaker Direction include the following, namely: -

(1)   the purpose of the paid area of the Station being to enable the commuting passengers to use the train services provided by the Corporation;

(2)   the nature of such area, being often frequented by throngs of such passengers, particularly on the arrival of a train in the Station, and the natural tendency of such passengers to move hurriedly in and out of the paid area;

(3)   the obstruction to such area and any disruption to the proper and efficient service provided to the commuting passengers therein (for example, by slowing the path of both those who decide to stop to listen to the broadcast message of the demonstrators and those who must alter their paths to avoid the area occupied by them);

(4)   the accumulative impact if the paid area of the Station is opened up for occupation by groups of demonstrators, each of which by itself may cause some obstruction or disruption in varying degrees;

(5)   the alternatives available to the demonstrators to exercise the Protected Rights in opposition to the construction of the high-speed rail link between Hong Kong and the Mainland, for example, exercising such rights in other venues, including in the street outside the Station or other MTR stations; canvassing support from fellow residents and lobbying elected legislative councillors; campaigning for public support using social media and other forms of public communication, etc.

39.  I agree that, having regard to all the relevant considerations, and disregarding the irrelevant considerations, the Deputy Magistrate ought to have held that (i) the Departure Direction and (ii) the Loudspeaker Direction were reasonable; and he therefore wrongly acquitted the defendant in this case.

H.   Conclusion

40.  For all the reasons stated above, this appeal should be allowed.  Pursuant to section 119(1)(d) of the Magistrates Ordinance, Cap 227, I reverse the Deputy Magistrate’s decision and order that a verdict of guilty be entered in place of the acquittal of the defendant. Further, I remit this case to the Fanling Magistrates’ Court for such sentence as appears appropriate to be imposed on the defendant for the offence.

41.  I see no reason why costs should not follow the event.  Accordingly, I order that the costs of this appeal be paid by the defendant to the Corporation.  Such costs shall be taxed if not agreed.

42.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

43.  Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.