MTR CORPORATION LTD v. KWOK WING KIN

HCMA 410/2018

[2019] HKCFI 2426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 410 OF 2018

(ON APPEAL FROM FLS 12224 OF 2016)

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J U D G M E N T

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1.  This is an appeal by way of case stated by the MTR Corporation Limited (“MTR”), acting as prosecution in these proceedings, against the decision of the Magistrate[1] to acquit the respondent.

2.  The respondent was charged under sections 21(1) and 43 of the Mass Transit Railway By-laws[2] (“MTR Bylaws”) in that he, while on the railway premises at the MTR Kowloon Tong Station, failed to comply with a reasonable direction and request of an MTR official, namely, to stop using a loudspeaker for broadcasting and to leave the station.

3.  The trial was conducted in Chinese.  It is the consensus of parties that this appeal be heard in English and the judgment be prepared in English.

FACTS OF THE CASE

4.  The Magistrate made the following finding of facts[3]:

(1)     The prosecution witness, Mr Wong, was at the material time a staff member of the MTR working at the MTR Kowloon Tong Station which was a railway premises.[4]

(2)     On 17 April 2016, at around 12:18 pm, in the paid area of the MTR Kowloon Tong Station, Mr Wong as a uniformed staff member of the MTR, saw around 20 persons (including the respondent) gathering at the Northern concourse of the East Rail Line (“the Subject Concourse”) for a demonstration.

(3)     These people placed in that area three to four pull-up banners, a fold-up table, a banner, and a loudspeaker.

(4)     They were also distributing leaflets and stickers to passengers.

(5)     They (including the respondent) were also using the loudspeaker for broadcasting and to ask for passengers’ signatures.

(6)     They were collecting passengers’ signatures and stickers to support their campaign to persuade the MTR to cancel its fare rise, and to persuade the government to re-purchase the MTR.

(7)     When questioned by Mr Wong, the respondent confirmed that he was the person in charge.  Mr Wong further asked the respondent whether he had obtained prior consent of the MTR before he conducted these activities.  The respondent confirmed that he had not obtained any prior consent.

(8)     At about 12:22 pm, Mr Wong warned the respondent that since he and his associates had not obtained approval from the MTR to conduct their activities, he was in contravention of the MTR Bylaws.  Accordingly, he directed and requested the respondent to stop using the loud hailer for broadcasting and leave the station (“the Directions”).

(9)     The respondent told Mr Wong that he understood the Directions.  Nonetheless, he continued his activities.

(10)     At around 12:26 pm, Mr Wong served a warning letter on the respondent, and warned him again that he and his associates were in contravention of the MTR Bylaws and requested them to leave the station immediately.  His request was ignored by the respondent and his associates.  They continued their activities.

(11)     At around 1:25 pm, a Notice of Intended Prosecution for Breach of Mass Transit Railway Bylaws/Mass Transit Railway (North-West Railway) Bylaw was served on the respondent.  The respondent and his associates left the station at around 1:30 pm.

5.  The Magistrate found that the respondent did not comply with the Directions[5] but acquitted him for the following two reasons:

(1)     the Directions were not reasonable; and

(2)     it was not consistent with the relevant provisions of the Basic Law (“BL”) and the Bill of Rights[6] (“BOR”).[7]

THE QUESTIONS

6.  The questions of law for the opinion of the court are:[8]

(1)     Are Article 27 of the BL and / or Articles 16 and 17 of the BOR engaged in the present case?

(2)     Is the appellant a “public authority” within the meaning of section 7 of the BOR?

(3)     Is the Subject Concourse a public place for the purpose of determining whether and, if so, to what extent the Protected Rights are engaged in this case?

(4)     On the basis that section 21 of the MTR Bylaws is constitutional, what is the test for reasonableness of a direction made under such provision in a case like the present one when Protected Rights are engaged?  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” are “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?

(5)     What are the relevant considerations to be taken into account in determining the reasonableness of the Directions?

(6)     Did I correctly hold that the Directions were not proved to be reasonable in acquitting the respondent on such basis?

DISCUSSION AND CONSIDERATION

7.  The present prosecution against the respondent was brought pursuant to sections 21(1) and 43 of the MTR Bylaws[9]:

Section 21(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.”

Section 43 is the offence creating provision.

8.  The first three questions[10] were asked for the original purpose of seeking the court’s ruling on the constitutionality of the provision.  Parties now agree that constitutionality of the provision is no longer in issue.  The appellant also accepts that for a prosecution under sections 21(1) and 43 of the MTR Bylaws, it is for the prosecution to prove beyond reasonable doubt that the Directions in question was reasonable, although how reasonableness is to be assessed is still a point to be considered.  In the circumstances, as parties agreed, practically the only question which the court needs to answer is Question 6 only.  In answering Question 6, matters set out in Questions 4 and 5 will be addressed.

The Protected Rights

9.  The rights relevant in the present case is broadly speaking that of freedom of speech or expression and of assembly (“the Protected Rights”).

10.  Article 27 of the BL provides:

“Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

11.  Articles 16 and 17 of the BOR provide:

“Article 16

Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary—

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.

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.”

12.  It is well established that the BOR is given constitutional status by Article 39 of the BL which provides:

(1)     The provisions of the International Covenant on Civil and Political rights … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

(2)     The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

Only Question 6 needs to be answered

13.  Mr Johnny Mok, SC, who appeared together with Mr Tom Ng for the appellant, clearly stated that for the purpose of this appeal, the MTR is prepared to proceed on the basis that Article 27 of the BL[11] is engaged.  It is also accepted that Article 27 essentially covers the rights under Articles 16 and 17 of the BOR.[12]  It is therefore not necessary to answer Question 1.

14.  Question 2 was asked as the BOR binds only the Government and all public authorities, and any person acting on their behalf.[13] In the light of the stance of the appellant in relation to Question 1, it is not really necessary to answer Question 2 for the purpose of this appeal.

15.  Despite Question 3 is set out in such term, the real substance of the question is whether by virtue of the relevant provision the restriction of the Protected Rights is constitutional.  This is no longer in issue.

16.  As said, the analysis for Question 6 will necessarily cover matters raised in Questions 4 and 5.

Proportionality is the Main Issue

17.  What the respondent was alleged to have contravened was failure to comply with reasonable directions of an official (ie, “the Directions”).[14]

18.  The Directions in the present case were to stop using a loudspeaker for broadcasting and to leave the station.

19.  As the respondent and his group were in the course of a demonstration, the Directions in the present case amount to restriction of the Protected Rights.  As such, the Directions to be reasonable must be for a legitimate aim, rationally connected to the legitimate aim, and no more than reasonably necessary to achieve the aim.

20.  As the Court of Final Appeal said in Hysan Development Co Ltd v Town Planning Board[15], a four-step analysis is involved[16]:

(1)     whether the restriction pursue a legitimate aim;

(2)     whether the restriction is rationally connected with that legitimate aim;

(3)     whether the restriction is no more than necessary to accomplish that legitimate aim; and

(4)     whether a reasonable balance has been struck between individual rights and societal benefits.

21.  For a restriction to be for a legitimate aim, it must be related to “national security or public order (ordre public), or the protection of public health or morals.”[17]

22.  The aim in the present context can be identified in the following provisions.

23.  The MTR Bylaws were enacted pursuant to section 34 of the Mass Transit Railway Ordinance (“the Ordinance”)[18] and section 34(1)(b)(i) provides:

“The Corporation may, under its common seal, make bylaws for … the following purposes—

(b) controlling and regulating –

(i)     the conduct of members of the public using the railway or on railway premises”

24.  Section 9(1) of the Ordinance provides that:

“The Corporation shall maintain a proper and efficient service at all times during the franchise period in accordance with this Ordinance and the operating agreement.”

25.  Mr Mok submitted that creating a secure and convenient environment to enable passengers to use the Station, in particular the paid area, for its primary purpose of commuting without disruption or disturbance or the risk of any disorder is conducive to maintaining a proper and efficient service.  To this I agree.  It follows that, whether a direction is reasonable is to be assessed in this light.

26.  I have no doubt, and indeed there is no real dispute, that there is a legitimate aim in the restriction.

27.  In her submission, Ms Wong queried whether there was any rational connection with the legitimate aim, in particular in the light of the finding of the Magistrate that there was much space for the passengers to pass at the time of the demonstration, indicating there was no interference with the proper and efficient services at the station.  She also argued that the adoption of a zero tolerance policy further showed the lack of rational connection.

28.  I do not agree that the Directions were not rationally connected to the legitimate aim as stated earlier in paragraphs 22 - 25 above.

29.  The most important question in the present case is whether the restriction is no more than really necessary to achieve the aim and whether a reasonable balance has been struck between the Corporation discharging its statutory duty and the relating benefit to the society on the one hand and the restriction of the Protected Rights on the other.

30.  As Fok PJ said in MTR Corporation Ltd v Tsang Kin Shing[19], there is a need to balance the “right to freedom of expression, on the one hand, and the protection of the MTR’s property rights and its obligation to ensure the rights and freedoms of the users of the MTR are not affected.”[20]

31.  In the course of submission, several points were specifically raised and it may be convenient to deal with these points first.

Choice of Venue

32.  Ms Linda Wong, for the respondent[21], stressed that a person exercising the right to free expression has choices, including the choice of venue.  In Mayor of London v Hall[22], Lord Neuberger of Abbotsbury MR noted the importance of recognising that the manner and location of the protest was part and parcel of the exercise of free expression.  His Lordship said:

“The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation. …”[23]

33.  In HKSAR v Fong Kwok Shan Christine[24], Ribeiro PJ observed:

“… If access to that place is denied, such denial is properly viewed as a restriction imposed on the exercise of the right so that the legitimacy, rationality and proportionality of that restriction fall to be considered.”[25]

34.  Ribeiro PJ further said that “the dimensions of any particular exercise of such rights and the exigencies of the intended venue” are to be taken into account in the proportionality analysis after having held that “a rule presumptively excluding free expression at certain types of venues is too blunt an instrument”.[26]

35.  The choice of venue in exercising the right on the one hand, and the exigencies of the intended venue on the other are relevant matters to be taken into account in the proportionality analysis.

Is the Subject Concourse a Public Place?

36.  In the light of the decision in Fong Kwok Shan[27], Protected Rights are engaged regardless of whether the location is a public place or not.  The nature of the location however enters the equation in the proportionality assessment exercise.

37.  Mr Mok made the submission that the Subject Concourse should not be regarded as a public place for the present purpose, on the following grounds:

(1)     it is an admitted fact that the MTR Kowloon Tong Station qualifies as railway premises, under the relevant part of section 2[28] of the Ordinance, railway premises are:

“(i) any area, space or building occupied by the Corporation which is designed, equipped or set apart for the carriage of passengers or goods, or both passengers and goods, by train or for affording facilities incidental to the carriage of passengers or goods, or both passengers and goods, by train; and

(ii)     any train on premises specified in subparagraph (i);”

(2)     Section 3 of the MTR Bylaws[29] provides that:

“(1) The Corporation reserves the right to refuse to admit any person onto the railway premises or any part thereof at any time.

(2)     The Corporation may open or close any entrance to or exit from any station or platform or any part of the paid area or any other part of the railway premises at such times as it considers expedient without incurring any liability to any person for any loss or damage however arising as a result thereof.”

(3)     In 香港鐵路有限公司 訴 曾健成[30], Barnes J observed that the MTR Mongkok Station was not a “public place”[31]. Leave to appeal to the Court of Final Appeal was refused by the Appeal Committee[32].

(4)     The Subject Concourse located within the paid area.  In MTR Corp Ltd v Chow Nok Hang[33], W Chan J observed that:

“…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).”[34]

38.  On the other hand, Ms Wong submitted that the Subject Concourse is a public place, arguing that it is a publicly-owned venue performing a public function and no private property right was involved in the present case.

39.  Indeed, in MTR Corporation Ltd v Chow Nok Hang[35], W Chan J described the station as a privately-owned venue performing a public function.[36]  His Lordship further observed:

“Although the Station is owned by such a business enterprise[37], 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 trains. 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.”[38]

40.  As regards the case of Tsang Kin Shing[39] cited by the appellant, it has to be noted that when the Court of Final Appeal was dealing with the case, the focus was on whether the by-law in question is constitutional.  That said, protection of the MTR’s property rights was mentioned.[40]

41.  Despite Mr Mok had made the submission just mentioned[41], at the appeal hearing he did not argue this point strenuously and his emphasis was on the fact that what happened took place in the paid area and asked the court to take this into account in the proportionality analysis since the location has its significance, as stated in the next section in this judgment.

42.  In the course of submission, Mr Mok informed the court that the Subject Concourse was in fact not owned by the MTR.  In this regard, I am of the view that no matter whether MTR was the owner, it is the nature of the place which carries more weight in the consideration.  Section 9 of the Ordinance[42] which provides for the duty of the MTR applies to all MTR stations, regardless of whether they are owned by the MTR or not.

43.  The Subject Concourse, even if privately owned, is not like the home of a citizen and other premises which the BL provides for constitutional protection.[43] There is a degree of public element, and the degree is not low.

Primary Purpose of Permitting Entry to the Paid Area

44.  As said, Mr Mok stressed that the incident took place inside the paid area.  It is his submission that the primary purpose of allowing entry to the paid area is to enable passengers to gain access to the MTR train system and this must be taken into account.  The following passage of W Chan J in MTR Corp Ltd v Chow Nok Hang[44]was cited:

“… 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 …”[45]

45.  I agree what W Chan J stated is the primary purpose of allowing a person other than the staff to enter the paid area.  Although nowadays there may be shops or service facilities operating within the paid area, and very rarely one may enter the paid area solely for the purpose of patronising one of the shops or service facilities as perhaps it is the only one conveniently available, the primary purpose must be as just said.

46.  As stated in paragraphs 22 - 25 above, the Directions have to be one which is reasonable for the purpose of controlling and regulating the conduct of members of the public using the railway or on railway premises so that a proper and efficient service can be maintained at all times.  The location where the rights was exercised is a relevant consideration.  On the one hand, one has the choice of venue in expressing his view, though this right is not absolute.  On the other hand, if the location has its significance in relation to the need for restriction of the right it must also be taken into account.

47.  In this regard, it has to be noted that one of the Directions was to leave the station, not only to leave the paid area.  Whether it necessarily takes the wind out of the sail of the submission of Mr Mok will be discussed later.

High Degree of Tolerance

48.  Ms Wong submitted that as the Protected Rights are so important, public authorities are expected to show a high degree of tolerance, even if exercising of the rights is disruptive to the normal functioning of the place.  She cited two cases to support her argument.

49.  In Ashughyan v Armenia[46], the European Court of Human Rights stated that:

“… any demonstration in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic, and where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance.”[47]

50.  In Yeung May Wan v HKSAR[48], Bokhary PJ observed:

“The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art.27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate”[49].

51.  When the Court of Appeal dealt with the case[50], Stock JA[51] observed:

“Though recognizing that the right of passage is the prime object of a highway and should not unreasonably be impeded, so that these other activities accommodate the right of passage, nonetheless the right of passage must reasonably accommodate the exercise of other rights. That accommodation is part of the give and take of any modern city that purports to be tolerant and cognizant of the plurality of rights to be enjoyed by, and indeed protected for the benefit of, the variety of its residents and the manifold interests and views that they espouse at any given time. … It is always a question of what is reasonable, of the effect of the one upon the other, a question to be addressed with maturity and objectivity but realizing all the while that fundamental rights are rights, not to be begrudged as some necessary nuisance, but to be promoted, let alone protected. These notions are not merely recognitions of intrinsic values and the product of developed human rights law, but are pronounced and enshrined by the Basic Law, and it therefore behoves the courts of this jurisdiction all the more to ensure the right is not mouthed as a platitude, but is accorded full effect in the application of our laws to everyday situations.”[52]

52.  Ms Wong also stressed that the public authorities have a positive duty to take measures to enhance the rights.

53.  In this regard, whilst in Leung Kwok Hung v HKSAR[53], the Court of Final Appeal recognized that public authorities have a positive duty to take reasonable and appropriate measure to enable lawful assemblies to take place peacefully, the Court also observed:

“… 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.”[54]

Matters to be Taken into Account in the Proportionality Analysis

54.  Section 21(1) provides that the direction has to be a reasonable one.  In this connection, Mr Mok invited the court to adopt the decision of W Chan J in MTR Corporation v Chow Nok Hang[55] that the direction should be “fair and reasonable having regard to maintaining a proper and efficient service at all times”.[56] His Lordship made such ruling having considered the English case British Airports Authority v Ashton[57] which concerned the provision “no person shall remain on the aerodome, or any part thereof, after having been requested by a constable to leave”.  In that case, there was a concession from the British Airport Authority (“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.  The court held that the request to leave must be a fair and reasonable one having regard to securing the efficient, economic and safe operation of the services and facilities provided by the BAA.

55.  Noting that there is a difference in the statutory provision of the two jurisdictions in that the local provision stipulates that the direction is to be reasonable and the English legislation is silent in this respect, I will consider the case on the basis that the direction has to be a fair and reasonable one, as invited by Mr Mok.  It makes no difference in my decision and I do not see the absolute need to make a ruling on this point.  It is, in any case, difficult to envisage a situation where an unfair direction can be found to be reasonable.

56.  What the court has to do is to decide whether the Directions were fair and reasonable in the light of the whole of the circumstances which is within common knowledge and as shown by evidence, and having regard to the relevant consideration principles as stated in paragraph 46 above.  It is facts sensitive and has to be necessary and proportional in the circumstances of the case.  It involves an exercise balancing the rights of all parties concerned as well as the statutory duty of the MTR.[58]

57.  Lord Neuberger MR stated in The Mayor Commonalty and Citizens of the City of London v Samede[59]:

“[Establishing the limits to the right of lawful assembly and protest on the highway] is inevitably fact-sensitive, and will normally depend on a number of factors. … In our view, those factors include (but are not limited to) the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.”

58.  It is impossible to draw up an exhaustive list of the factors but what may frequently be relevant include: the location, the space, the time, the duration, by what means the Protected Rights are exercised, how many people are involved and affected, the accumulative and incremental effect of the conduct in exercise of the Protected Rights, and whether alternative means exist.

59.  It is for the prosecution to adduce evidence to prove beyond reasonable doubt all elements of the offence, and in the context of the present case to prove particularly that the Directions were reasonable.

60.  An objective test should be applied in deciding whether the Directions were reasonable in the circumstances.  What the witness perceived and what factors he had taken into account may be relevant in the consideration but what must be borne in mind is that the test is not a subjective one.  What the court has to do is to analyse the circumstances which are within common knowledge and as revealed by evidence, and decide whether by objective standard the Directions were reasonable.

61.  What must also be borne in mind is that often there can be a spectrum of reasonable directions and so long as a direction falls within the reasonable range it should be found reasonable.

The Proportionality Analysis in the Present Case

62.  At trial, the only prosecution witness was Mr Wong[60]. His evidence on how the activities had affected the circumstances has been summarised by the Magistrate as follows[61]:

(1)     passengers from East Rail Line who wanted to proceed to the Kwun Tong Line have to go through the concourse and they have to avoid the respondent and his followers;

(2)     the risk of stampede existed if crowd control was not exercised as the place was a bottle neck;

(3)     as one exercise of crowd control, an escalator was turned off;

(4)     what the respondent did had caused some passengers discontent and some of them had made verbal complaint to him; and

(5)     the sound of the loud hailer drowned out that of the MTR public announcement system.

63.  The Magistrate did not fully accept the evidence of Mr Wong and he made the following finding of facts:[62]

(1)     despite Kowloon Tong Station is one of the busiest stations, there was real difference in the degree on the day, which was a Sunday, than with a working day;

(2)     photographs produced show that there was still a lot of space for commutators to use and walk pass;

(3)     there was no evidence to prove that the escalator had been switched off;

(4)     there was a failure to prove that the sound of the loud hailer was so loud that it covered that of the MTR public address;

(5)     the respondent was asked to leave only after he had started his activity for four minutes and the warning letter was issued only after eight minutes, there was insufficient observation on the effect or impact of the activity;

(6)     the content of the warning letter shows an attitude of zero tolerance to any protest and demonstration.

64.  The Magistrate further found that there was, at the material time, no necessity nor urgency to stop using the loud hailer and to leave the station forthwith.[63]

65.  I see no reason to disturb the findings of facts as stated in paragraph 63 above.  Indeed, neither parties sought to challenge the findings.

66.  On those findings, the Magistrate gave the following reasons for holding that the Directions were on the evidence not reasonable[64]:

(1)     the Directions of “to leave the station forthwith” amount to completely stopping the demonstration or protest of the respondent and his followers;

(2)     such a Direction lacks sufficient grounds and reasons; and

(3)     in making such a Direction, Mr Wong relied on the established policy of the MTR that no protest or demonstration is permitted to take place inside a railway premises and yet this policy is contrary to the constitutional principle as held by the Court of Final Appeal.

67.  The submission of Mr Mok was that the Magistrate erred and should have found the Directions reasonable, in view of the followings:

(1)     the purpose of the paid area of the station is to enable the commuting passengers to use the train services provided by the MTR, and the area is often frequented by throngs of such passengers.  Kowloon Tong Station was one of the busiest stations;

(2)     the accumulative impact of the demonstration;

(3)     the alternative means available to the respondent; and

(4)     the degree of obstruction: there were around 20 people gathering in the respondent’s group; they were distributing stickers to passengers; banners, a fold-up table and a loudspeaker were involved; and loudspeaker was used to ask passenger to put down their signatures.

68.  On the other hand, Ms Wong submitted that the verdict of the Magistrate should not be disturbed.  She submitted that the reasons the Magistrate provided for his decision[65] were sound and stressed that in the present case there was no evidence to show any disturbance, or risk of disturbance or even inconvenience to the passengers.

69.  Ms Wong stressed that fundamental rights should be given a generous interpretation whereas restriction on such rights must be narrowly interpreted.

70.  She cited the European case Navalnyy v Russia[66] in which the court said:

“… a peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction and notably to deprivation of liberty. … The freedom to take part in a peaceful assembly is of such importance that a person cannot be subject to a sanction – even one at the lower end of the scale of disciplinary penalties – for participation in a demonstration which has not been prohibited, so long as that person does not himself commit any reprehensible act on such an occasion.”

71.  She also cited Jews for Jesus, Inc v Massachusetts Bay Transportation Authority[67] and In re Hoffman[68] which are cases concerning regulations in railway stations.

72.  I note that in these two cases, whilst the rights of citizens were recognised and respected, the court stressed that an important consideration was whether there was interference of the use of the railway and whether function of the station as a transportation terminal was infringed.  These are relevant consideration in the present case.

73.  It was also the submission of Ms Wong that:

(1)     The Magistrate must have considered the duty of the MTR;

(2)     The significance of the paid area is stressed at the appeal but this matter has not been argued before the Magistrate;

(3)     The submission of cumulative impact is conjecture and speculative and no submission in this regard had been made before the Magistrate;

(4)     Alternative directions could have, but have not, been given to the respondent which could enable the demonstration to continue in a more acceptable manner.

74.  Ms Wong also echoed the view of the Magistrate that the “zero tolerance policy” indicated no proportionality analysis had taken place by assessing the factual circumstances on site.

75.  Having considered what the Magistrate said in relation to the evidence of Mr Wong[69], I agree that I have to consider the present case on the basis that there was a “zero tolerance policy” and that the witness made the decision having this policy in mind.

76.  This is an appeal by way of case stated.  It is not an appeal by way of rehearing.  The duty of this court is to examine whether or not there was an error of law or an excess of jurisdiction.[70]

77.  Chan PJ said in Li Man Wai v SJ[71]:

“Where a magistrate has come to a conclusion or finding of fact which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions, could have come to, this would be regarded as an error of law. Such a conclusion or finding is often described as ‘perverse’.”[72]

78.  In consideration, the court is confined to the evidence adduced in the lower court but at the same time is entitled to take into account circumstances which are within common knowledge.

79.  Mr Mok highlighted the significance of the location being inside the paid area, stressing the primary purpose of permitting entry into it.[73]

80.  As said, one of the Directions was to leave the station, not only to leave the paid area.  I am aware of the implication of such a direction.  However, the incident did take place in the paid area.  It prompted the action of Mr Wong and understandably he had to make a decision on the spot.

81.  The paid area, as stressed by the appellant, has its significance.  It may be that had the activity been conducted outside the paid area, the situation might have been less acute.  However, the fact is that the incident took place in a paid area and the station was Kowloon Tong Station.  It is commonly known that it is one of the busiest stations and not particularly spacious.  The incident took place at noon time which nobody will think is a quiet time of the day.

82.  Despite I appreciate the significance of the paid area, it is my view that the need to safeguard the integrity of the station as a whole is of much importance.  We must not lose sight of the fact that the train service is a major means of local transportation and the special features which go with it, as I will outline later.

83.  Evidence did not show that actual disturbance had taken place.  However, it cannot be said that the risk did not exist.  I also cannot accept that the evidence did not show inconvenience to the passengers had been caused.  The incident took place inside the paid area and indeed the location was adjacent to two main corridors for passengers moving to and fro some exits and the platform for the train to the Kwun Tong Line.  Even though it was a Sunday and passengers would not be as many as on a working day, the number cannot be unduly underestimated.  The fast pace of MTR passengers, at least of many of them, is well known.  The distraction caused in this case, both by the physical conduct of the respondent and his group and announcement through the loud hailer, can reasonably be viewed as a potential hazard.  Whilst judging from the subject matter of the protest or demonstration, the risk of attracting opposition conduct might not be as high as when a controversial topic is involved, the risk is not something which should lightly be ignored.

84.  Notwithstanding that the Magistrate did not fully accept the evidence of Mr Wong[74], apart from rejecting his evidence about switching off the escalator, the Magistrate did not expressly say he refused to accept entirely the other aspect of Mr Wong as outlined in paragraph 62 above, his remark was that he found that Mr Wong was on the whole an honest witness but there might have been a degree of exaggeration in some aspect of his evidence particularly in relation to the passenger flow, and perhaps also in relation to the loud hailer.[75]  In consideration of whether the Directions were reasonable, the circumstances which Mr Wong described and accepted by the court as true have to be taken into account although the weight to be attached is a matter for the court.

85.  Ms Wong criticised that the Directions were made just a few minutes after the activities had started and the Directions in particular that of leaving the MTR station forthwith amounts to completely stopping the demonstration.  At the appeal hearing, the option of discussion between the MTR staff and the respondent for alternative arrangement was brought up.  Whether such option would have been viable must be considered in context.  I doubt the wisdom of doing so.  In the circumstances of the present case, taking into account the location, the scale of the activity and the number of persons involved, in my judgment taking the steps as Mr Wong did cannot be said to be unreasonable.

86.  The MTR, and Mr Wong in the present case, was entitled to exercise anticipation.  It is certainly reasonable to make a direction with the view of preventing an anticipated undesirable situation.  It may be too late to take action when something undesirable has happened.

87.  Much had been said against the “zero tolerance” policy.  Mr Wong said he had taken this into account in his decision.  As said earlier in paragraph 56, the objective test is applicable.  What the court has to decide is whether it was reasonable to make the Directions in the circumstances of the present case. Whilst I am not in a position to take a firm view on the policy as it was not the focus of the case and therefore submission on the topic was limited, I can readily see some justifications in applying the policy in the station, particularly in the paid area, in the present case.  The first is what Mr Mok described as the accumulative impact.  If the station is opened up for demonstration by one group, it is hard to exclude other to do the same, each of them may cause a degree of obstruction or disruption, the accumulative impact can be substantial.  Besides, the “incremental effect”, or at least the risk of such effect, as recognised by the Court of Final Appeal in Fong Kwok Shan[76], is a realistic concern in many situations.  A demonstration may be met with confrontation posing a risk of conflict and public disorder.

88.  Train service is special in many ways.  Each train is capable of carrying a lot of passengers, much more than a double decker bus.  At each platform, whenever a train arrives, there are people coming out from the carriage and people eager to enter at the same time.  There may be people rushing towards the train.  The name of the corporation is not just a choice of nomenclature.  The system is set up for mass transit.  Not only that a mass of passengers is carried on each train, the system enables passengers to change lines.  It happens inside the paid area and there is a tendency for people to do it in a hurried manner.  Unlike a bus, if there is disruption to one train, the entire system may be affected and can be brought to a halt as usually there is no alternative route available.  This lack of flexibility is an important matter to be taken into account, in particular as the railway is definitely the means of transportation which many citizens in Hong Kong mostly relied upon.

89.  Whether a direction is reasonable has to be decided objectively, taking into account the special nature of the MTR service.  As the objective test is applicable, what the witness said he had taken into account in his decision, including the “zero tolerance policy”, are only factors to be taken into account.  Whether a direction he made was reasonable is to be assessed objectively taking into account the whole of the circumstances as shown by evidence and any relevant circumstances which are commonly known.

90.  It has to be borne in mind that the statutory duty of the MTR is to maintain a proper and efficient service at all times.[77]  Disruption of such level of service at any time may amount to a failure of duty.

91.  It should also be noted that there is a mechanism whereby financial penalty may be imposed on the MTR for failure to comply with any provision of the Ordinance (including the statutory duty as mentioned in paragraph 24 above) or the operating agreement.[78]  The penalty can be substantial.  It indicates an intention to impose an onerous duty on the MTR to maintain a proper and efficient service.  Maintaining such a service is in the interests not only to the company and its shareholders, but also to the whole community as a whole.

92.  This onerous duty, and the public interest in having a proper and efficient train service at all times, are important factors to take into account in the proportionality analysis.  On the other side of the scale is of course the Protected Rights.

93.  Having considered the whole of the relevant circumstances, bearing in mind the implication of the Directions was that the demonstration had to stop, in my judgment the finding of the Magistrate that there was no necessity nor urgency in giving the Directions illustrates a failure to take into account all the relevant circumstances.

94.  Ms Wong said there was no evidence that any MTR broadcasting had been drown by the sound through the loud hailer used by the respondent and his group.  Whilst it may be true, it is not realistic to think that the proper functioning of the MTR broadcasting would not have been affected.  At the least, attention of some passengers might be distracted.  Also, it can easily be anticipated that some of the passengers would be attracted, thus slowing the path of other passengers or they might even have to alter their path.  It is obviously desirable that public broadcasting inside the station is reserved for formal public announcement of the MTR management.

95.  I have considered whether there existed alternatives available to the respondent and his group to exercise the Protected Rights.  In my judgment, there are alternatives including exercising the rights in the street outside the station or by social media and other forms of public communication.  The respondent was also free to canvass support from citizens and to lobby support of legislative members.  He was only not permitted to perform the demonstration inside the MTR station, and in this particular case the busy Kowloon Tong Station.

96.  Having regard to the size of the activity of the respondent and his group, the exact location of the activity, what had been done including displaying of banners, distribution of leaflets and stickers, setting up of a table, using loud hailer to make announcement and asking people to sign, as well as to the nature and primary purpose of the paid area and the whole station, together with all the relevant consideration, there is no doubt that the Directions were reasonable in the circumstances of the case.

97.  The Directions were conducive to controlling and regulating the conduct of members of the public using the railway or in railway premises and achieving the ultimate aim of maintaining a proper and efficient train service at all times.  In my judgment, the Directions were no more than necessary in the circumstances to achieve the legitimate aim and a reasonable balance had been struck between the need for the Corporation to discharge its statutory duty (and the related benefit to the society) on the one hand and the restriction on the Protected Rights on the other.

98.  It was the submission of Ms Wong that a reasonable balance had not been struck by issuing the Directions since the benefit was small and negligible.  I do not agree.

99.  Having regard to all the relevant considerations, and disregarding the irrelevant considerations, applying the test in Li Man Wai v SJ[79], I find that the decision of the Magistrate amount to an error of law.  He had wrongly acquitted the respondent.  I therefore allow the appeal.

100.  I borne in mind the criticism of Ms Wong as stated in paragraph 73 above.  Whilst I appreciate that the Magistrate might not have been given assistance in full force, I decide the case taking into consideration the whole circumstances which is within common knowledge and as proved by evidence, which the Magistrate should also have done.

101.  Pursuant to section 119(1)(d) of the Magistrates Ordinance[80], I reverse the decision of the Magistrate and order that a verdict of guilty be entered in place of the acquittal of the respondent.  Further, I remit this case to the Magistrates Court for such sentence as appears appropriate to be imposed on the respondent for the offence.

102.  There was indication for application for costs.  In this connection, I make the following directions:

(1)     The appellant to indicate in writing, on or before 30 October 2019, whether it wishes to continue to proceed with the application for costs, with the basis for making the application be stated;

(2)     If there is an application for costs, the respondent to file submission on or before 4 November 2019 if he intends to oppose the applications.  The submission to include submission and information in relation to means;

(3)     If there is opposition to the application, the appellant to file submission in reply on or before 11 November 2019; and

(4)     Both parties to indicate in the submission whether the application can be dealt with on papers, without any hearing.