HKSAR v. YIP PO LAM AND OTHERS

English Translation – 英譯本]
HCMA 733/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 733 OF 2012

(ON APPEAL FROM ESCC NO. 5159 OF 2011)

________________

JUDGMENT

Background

1. The 1^st to 8^th appellants (hereinafter referred to as D1 to D8) faced a total of nine charges due to their involvement in the following incident: On 4 June 2011, after the June Fourth candlelight vigil in the Victoria Park, a group of people marched from Victoria Park to North Point Police Station, but the police had not received in advance, in relation to this march, a notice of intention to hold a public procession required to be given under section 13A of the Public Order Ordinance, Cap. 245, Laws of Hong Kong, and in the course of the procession some people charged a police cordon.

2. These nine charges can be divided into three groups:

(1)  The first group is unlawful assembly, contrary to sections 18(1) and (3) of the Public Order Ordinance.  Charges (1) and (2) are charges of unlawful assembly.

 The date of offence of charge (1) was 4 June 2011 or thereabout.  D1 to D5 were charged that “… in Hong Kong [they] took part in an unlawful assembly, in that [they] assembled together with each other and with other persons unknown and the persons so assembled conducted themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace or would by such conduct provoke other persons to commit a breach of the peace.”

 The date of offence of charge (2) was 5 June 2011 or thereabout, and the persons charged were D5 to D8.  The particulars of offence were the same as those of charge (1), except the date.

(2)  The second group is assisting or being concerned in holding, convening, organizing, forming or collecting a public procession taking place in contravention of section 13 of the Public Order Ordinance, Cap. 245, contrary to section 17A (3)(b)(i) of the Public Order Ordinance.  Charges (3) to (8) belong to this group.

 The person charged in charge (3) was D1.  The particulars of the offence were that D1, “between the 4^th day of June 2011 and the 5^th day of June 2011, both dates inclusive, in Hong Kong, assisted or was concerned in the holding, convening, organizing, forming or collecting [of] a public procession which took place in contravention of section 13 of the Public Order Ordinance (Cap. 245), after such a public procession had become an unauthorized assembly under section 17A(2)(a) of the Public Order Ordinance (Cap.245).”

 The persons charged in charges (4) to (8) were respectively D2 to D6.  The particulars of offence were the same as those of charge (3).

(3)  The third group is knowingly taking or continuing to take part in or forming or continuing to form part of an unauthorized assembly, contrary to section 17A(3)(a) of the Public Order Ordinance.

 Charge (9) is the only charge in this group and the persons charged were D1 to D6. The particulars of the offence were that they, “between the 4^th day of June 2011 and the 5^th day of June 2011, both dates inclusive, in Hong Kong, without lawful authority or reasonable excuse, knowingly took or continued to take part in, or formed or continued to form part of, a public procession which took place in contravention of section 13 of the Public Order Ordinance (Cap. 245), which was an unauthorized assembly by virtue of section 17A(2)(a) of the Public Order Ordinance (Cap. 245).”

3. D1 to D8 all pleaded not guilty to the charges and the case was heard before Mr. Joseph To, a magistrate sitting in the Eastern Magistracy.  After a trial which lasted 17 days, all defendants were found guilty of every charge which they faced.

4. The Magistrate proceeded to sentence them.  D1 and D4 were sentenced to four weeks’ imprisonment, which was suspended for 12 months, for charge (1) of unlawful assembly.  As for the other charges they faced, they were fined.  All the other appellants were fined.

5. D1 to D8 appeal against their convictions.  In addition to that, D1 and D4 also appeal against the sentence imposed on them in respect of charge (1), namely four weeks’ imprisonment suspended for 12 months.

6. At the appeal, D1, D3, D5 and D6 are represented by Mr. Erik Shum and Ms. Linda Wong, while D2, D4, D7 and D8 appear in person.  As all the unrepresented appellants have indicated that they would rely on the grounds of appeal put forward by Mr. Shum and Ms. Wong, I just need to deal with the arguments advanced by the two counsel.

Prosecution case

7. After the 2011 June Fourth candlelight vigil was over, D1 and D2 were present at an exit of Victoria Park, assembling people to take part in an unauthorized assembly.  They called on the people to march together to North Point Police Station to show their support for the action of giving up the right to bail taken collectively by a number of protesters who had been arrested before that day at a demonstration against the Government’s Budget (who included D1, D6 and D8).  The police had not received any prior notice in respect of this procession and they had to deal with it there and then.  At the scene, police officers of the Police Community Relations Office, on their own initiative, approached D1 for further information and learnt that she intended to march along King’s Road to North Point Police Station. The officers asked D1 to use Electric Road in order that the busy traffic on King’s Road would not be obstructed, but to no avail.  D1 insisted on using King’s Road; the police could not but make a concession.  However, they made it clear that the people who took part in the procession could not use the roadway.  To this, D1 did not indicate whether she agreed or not.

8. At around 2230 hours, the march formally began.  At the beginning, there were over 150 people in the procession.  The police tried to assist to ensure that the procession would proceed in an orderly manner, but in the end the marchers paid no heed to the directions given by the police.  They carried and stretched a yellow band and went into King’s Road.  They occupied a traffic lane of the eastbound carriageway of King’s Road, causing serious traffic congestion.  Some police officers were squeezed into the tram track and were exposed to danger on all sides, with the result that the trams could not be driven through that area safely.  In the course of the procession, the police issued warnings to the marchers that the procession was an unauthorized assembly and they asked them repeatedly to go back to the pavement, but their efforts were futile.  Nevertheless, the police still allowed the protesters to move on.  When the procession reached the junction of King’s Road and Tin Chong Street, it was stopped by the police to let the trams be driven through there.  At this stage, the police gave the marchers one more warning and urged them to go back to the pavement, but the warning was ignored.

9. Subsequently, the marchers charged the police cordon twice.  The first charge took place at about 2305 hours.  It was the idea of D1 and D4 and it was they who gave the commands.  The result was violent jostling and shoving between the two sides.  The police raised up a red warning banner to warn the marchers that they had to stop rushing towards the police, otherwise the police would use force.  The police succeeded in stopping the marchers from moving forward.  The second charge took place at about 2345 hours.  One policeman was pushed, so much so that he hit against a bus.  Quite a few policemen were surrounded by the marchers, and for some time a police baton had gone missing. Some marchers broke through the police cordon, dashed to the westbound carriageway of King’s Road and then sat down or lay down on the ground, thus bringing the traffic on both carriageways to a standstill.  The police again raised up the warning banner to warn the marchers not to rush towards the police and succeeded in stopping the marchers from breaking out of police encirclement.  At about 0020 hours the police counted the number of marchers on the roadway and found that the number had dropped to 80 people.  Then the police took action to arrest them.  53 protesters were taken away.  Public order and traffic condition at the scene gradually returned to normal.

Video-recorded evidence

10. Besides calling their witnesses, the prosecution also produced as exhibits video footage which they filmed from different positions at close range of what happened during the procession.  Part of the contents are listed below:

2252 hours PW14 (Inspector Sham) warned the marchers that notification about this procession, which was required to be given to the Commissioner of Police under section 13 of the Public Order Ordinance, had not been given to the Commissioner, so the procession was an unauthorized assembly.

2258 hours D1, D2 and D5 were marching and carrying a banner.  D3 was beside them.  [A] male voice and [a] female voice led the people to chant slogans.

2305 hours Traffic congestion began.  The marchers were stopped by the police.

2306 hours D1, D2 and D5 were carrying a banner, while D3 was talking with the police.

2307 hours D1 suggested to the marchers that they should walk slowly together.  Voices from some people said, “Yes.”  D4 led the people to shout “One, two, three” twelve times.

2308 hours PW14 warned the marchers that they should stop rushing on the police, otherwise the police would use force.

2323 hours PW21 (Chief Inspector Choi) asked the marchers to cooperate and to use the pavement to proceed forward.  He told them that the police respected the freedom of speech of the marchers and that the police would do their best to assist the marchers to carry on their activities peacefully.

2323 hours D1 asked the marchers, “Do you agree?”; “Do you accept?”  In response, voices from some people shouted, “We don’t agree!”; “We don’t accept!”.

2326 hours PW14 said that the police respected the freedom of speech of the people present at the scene.  He asked the marchers to have regard for their own safety and the safety of other road users, and to immediately “go back to the pavement”.

2328 hours The video images showed that at the rear side of the marchers and the pavement on the left, the police were not closing in.

2331 hours D1 indicated that she refused to walk on the pavement to North Point Police Station.  Voices from some people shouted support for her decision.  A station sergeant, who was believed to be belonging to the Police Community Relations Office, said the police would cooperate as far as possible, but he hoped that the marchers could go back to the pavement.

2335 hours A man whose name is unknown alleged that the police’s request that they should use the pavement was not a reasonable request.

2342 hours PW14 repeated the warning that the marchers should stay calm and stop rushing on the police cordon, otherwise the police would use such force as was appropriate in the circumstances.

2351 hours The police told the marchers that they were blocking the traffic lanes and asked them to use the pavement.

2353 hours The police asked the marchers again to “go back to the pavement”.

2356 hours The marchers shouted many times “One carriageway!”

0015 hours PW14 advised, “People who stay on the traffic lanes should leave the traffic lanes at once and go back to the pavement.  If you want to go home, leave at once”.

0024 hours PW14 warned the people who remained there that they should leave the traffic lanes at once and go back to the pavement, because they impeded the flow of traffic and posed a threat to the road users.

0035 hours D1 said, “At this moment, we have to make up our minds.  Shall we remain on the roadway, or shall we choose to use the pavement?  For those who want to use the pavement, we have friends there, you can stay with them and walk to North Point Police Station together.  For those who choose to remain on the roadway, we have to make ourselves ready, make ourselves psychologically ready.  There is the danger that we may be arrested!”

0039 hours D6 said, “… We must think.  For what purpose actually do we stay in the street? … Now the police have blocked our path.  They have, in turn, blocked our path and do not allow us to march forward…”.

0049 hours D1 argued with the police, saying that [she] wanted to use the pavement.

0052 hours D6 demanded that the police “release the people at once.”

0052 hours Two men whose names were unknown made their way through the array of policemen and left the roadway.  The police did not stop them.

0053 hours D5 accused the police of holding him in custody.

0054 hours D8 demanded that the police should reply to her why she could not walk on the pavement.

0058 hours D7 said that he “just wanted to walk out of this place”.

0100 hours PW14 announced that the assembly was an unlawful assembly and that the police would take action to arrest them.

Defence case

11. At the trial, none of the appellants gave evidence and no defence witness was called.

Magistrate’s findings

12. After going over the facts of the case, Magistrate To considered that the accounts given by commanding officers above the rank of inspector as to when the frontline policemen succeeded in encircling the marchers were inaccurate.  He found that it was after 0035 hours on 5 June that the police succeeded in encircling the marchers.  Furthermore, the Magistrate did not give any weight to the evidence given by police officers that they recognized in court that certain people who appeared in the video footage were some of the appellants.  Other than these two points, he accepted the prosecution case and the contents of the video footage.  Having studied relevant authorities, including The Queen v To Kwan Hang and Another [1995] 1 HKCLR 251 and HKSAR v Au Kwok Y[sic]uen and others [2010] 3 HKLRD 371, he made the following findings:

“133. ...

Charge (1)

I. The court found beyond reasonable doubt that D1 to D5 and other people who took part in the procession, at about 11.07 p.m. on 4 June 2011, unlawfully assembled together and conducted themselves in a disorderly manner, namely, charging the police cordon, which was likely to cause the citizens nearby reasonably to fear that they would commit a breach of the peace.

Charge (2)

II. The court found beyond reasonable doubt that between 12.35 a.m. and 1 a.m. on 5 June 2011 the police lawfully detained D5 to D8 when they took action to make arrests, that at the material time these defendants unlawfully assembled together, and that between 12.52 a.m. and 12.58 a.m. they conducted themselves in a disorderly manner, namely charging the police cordon, which was likely to cause the citizens nearby reasonably to fear that they would commit a breach of the peace.

III. The court further found that after 12.35 a.m. when the police cordoned off the scene, D5 to D8 were undoubtedly there and assembled together with other people who took part in the procession, that when the police, in lawful execution of their duties, detained them and made mass arrests, the voluntary nature of the conduct of these defendants of assembling together on the roadway with other people who took part in the procession did not thereby came to an end, and that the assembly went on until the moment when the police formally declared that they were under arrest.  (see R v Pagett [1983] 76 Cr App R 279: Among the examples which the officer gives of non-voluntary conduct, which is not effective to relieve the accused of responsibility, are two which are germane to the present case, viz. ... an act in performance of a legal duty.)

Charges (3) to (8)

I. The court found that the public procession in the present case was an assembly consisting of more than 30 persons held on a road, and that the holding of which had not been authorized.

II. During this assembly which was held from 4 June to 5 June:

1. In Victoria Park D1 and D2 called the citizens together for the procession and organized the procession.

2. Subsequently, D1, using a loudhailer, gave directions as to how the procession should proceed, she therefore was concerned in the holding of the procession.

3. D1 and D3 negotiated with the police on behalf of the people who took part in the procession, they therefore were concerned in the holding of the procession.

4. D1 and D4 directed the people who took part in the procession to charge the police cordon for the purpose of continuing to march forward, they therefore were concerned in the holding of the procession.

5. D5 and other defendants occupied front positions of the procession.  He carried a placard which displayed the main slogan and led the people to march on.  He also led the marchers to shout slogans.  He therefore was concerned in the holding of the procession.

6. D6 talked to the marchers through a loudhailer.  She told them that a lawyer’s letter had been sent to the police (a defence exhibit) and instructed the marchers what they should do and say in response to police investigation after they were arrested.  She also informed the marchers that after they were arrested two lawyers would come to assist them.  The court found that D6 was concerned in the holding and organizing of the procession.

 Charge (9)

I. The public procession in this case was an unauthorized assembly.

II. The prosecution evidence showed that D1 to D6 were respectively concerned in the convening, organizing and holding of the procession.

III. Taking into account all the evidence, in particular the fact that in the course of the procession the police had warned the marchers that the procession was an unauthorized assembly, that they had again and again directed that the marchers should go back to the pavement, and that in the end they had to stop the procession, the court, without any reasonable doubt, made the only and irresistible inference that D1 to D6 knowingly continued to take part in the unauthorized assembly involved in this case and formed part of the public procession.

IV. Although the police took steps to facilitate the conduct of the procession, they had unambiguously said that the procession was an unauthorized assembly;but the marchers (including the defendants) did not obey the police, who told them to go back to the pavement to carry on the procession there.  Under these circumstances, the court could not accept that the defendants had any lawful authority or lawful excuse to continue to take part in the procession.

V. No evidence was given before the court to rebut the conclusions made by the court in these respects.

134.  Having considered the evidence in its entirety, the court found that the prosecution had succeeded in proving all the elements of all the offences in this case beyond reasonable doubt.”

Grounds of appeal (conviction)

Ground of appeal 1

13. The appellants challenged the constitutionality of the requirement laid down in section 13A of the Public Order Ordinance about the giving of notice in writing.

14. The appellants did not dispute the constitutionality of the requirement that the organizer of a procession should provide the police with information about the procession, but they argued that giving a verbal notice was sufficient.

15. The arguments of the appellants can be summarized as follows:

(1)  Hong Kong citizens enjoy freedom of speech, of procession and of demonstration (Article 27 of the Basic law).

(2)  Article 17 of the Hong Kong Bill of Rights, Hong Kong Bill of Rights Ordinance, Cap. 383, Laws of Hong Kong (hereinafter referred to as “Bill of Rights”) provides that:

“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.”

(3)  The requirement that the organizer of a procession have to give notice in writing to the police is a restriction on human rights; therefore, according to the majority judgment of the Court of Final Appeal in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, the government (police) has the duty to justify such restriction.  The restriction must be connected with one or more of the four aims set out in Article 17 mentioned above, and the test is that the notice in writing requirement must be necessary and proportionate.

(4)  In the present case, the prosecution did not explain which one of the four aims the police relied on for the imposition of the notice in writing requirement.

(5)  The Magistrate on the one hand accepted the defence argument that the prosecution had the duty to establish that the notice in writing requirement was necessary and proportionate, but on the other hand he said that this issue had nothing to do with the exercise of discretion by the Commissioner of Police, and that therefore the prosecution did not need to specify which one of the four aims stated in Article 17 the restriction was based on in order to establish the constitutionality of the restriction.

(6)  The Magistrate went so far as to make the finding on his own that the government relied on one of the four aims: public order (ordre public) for the imposition of the notice in writing requirement.

(7)  The appellants complained that the Magistrate’s conclusion was erroneous and that he had assumed the role of the prosecution since he had, in the place of the government, provided a basis, which was not supported by any reason, for the notice in writing requirement.

(8)  The appellants contended that the giving of verbal notice to the police by the organizer of the procession was sufficient to enable the police to perform their duties.  They said that the requirement of giving notice in writing from which no exemption was provided was an unnecessary restriction, that particularly in relation to certain members of the public, for example people who were illiterate and people who had received only low level education, this restriction curtailed their right of peaceful assembly, and that the restriction went beyond what was necessary to accomplish any legitimate aim.

Respondent’s response

16. The respondent submitted that pursuant to section 13(1)(a) of the Public Order Ordinance, any public procession which was a procession on a public highway, a thoroughfare or in a public park, consisting of 30 people or more could take place if and only if certain conditions were fulfilled, including the condition that the Commissioner of Police was notified under section 13A of the intention to hold the procession, and had indicated that he had no objection to the procession taking place or was taken to have issued a notice of no objection.  The respondent said that according to section 13A(1), notice of the intention to hold a public procession “shall” be given in writing to the Commissioner of Police, and that under section 13A(2), where the Commissioner of Police was reasonably satisfied that earlier notice could not have been given, he might, by exercising his discretion, accept shorter notice.  As for the matters whose particulars have to be contained in the notice, they are listed in section 13A(4)(a) to (e).  As the Court of Final Appeal pointed out in Leung Kwok Hung, the Public Order Ordinance only regulates public processions within a limited scope.

17. According to the respondent, the correct interpretation of the above provisions is that the matter over which the police can exercise discretion is only whether they would “accept shorter notice”, whereas the requirement about giving “notice in writing” is mandatory and no exemption can be given by exercising discretion.  From this it can be seen that the Magistrate was correct in holding that the constitutional issue raised by the appellants “had nothing to do with the exercise of discretion by the Commissioner of Police on the basis of the four aims stated in Article 17 of the Bill of Rights”.

18. The respondent quoted certain passages from Leung Kwok Hung, indicating that the government had the duty to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully, and that therefore the notification scheme was necessary.

19. The respondent emphasized that since the whole of the statutory notification scheme governing public processions provided for in the Public Order Ordinance and the relevant provisions had been minutely examined and found to be constitutional by the Court of Final Appeal in Leung Kwok Hung, the requirement about notice in writing laid down in section 13A was necessarily also constitutional. According to the respondent, this requirement not only does not create any restriction on the freedom of assembly, it also provides certainty as to what arrangements are to be made for a procession, so that the interests of the participants, the police and other people who might be affected by the procession are protected without distinction.  Another matter that should be noted is that if the police, pursuant to section 13A(3), have decided not to accept shorter notice or, by virtue of section 15(2), impose conditions in respect of a public procession, they are also required to state the reasons in writing.  It can be seen that the requirement about notice in writing is bidirectional.  Its purpose is to provide all stakeholders with some information based on which they can understand the situation more clearly and more accurately, so that they can make corresponding arrangements to make sure that the procession can proceed in an orderly manner.

20. The respondent maintained that the Magistrate, after carefully considering the issues of whether it was necessary to give notice in writing, whether this requirement resulted in the appellants’ right of peaceful assembly being subject to any restrictions, and whether the giving of verbal notice was sufficient, found that the notice in writing requirement was constitutional.  In the respondent’s view, the Magistrate’s analysis was reasonable and the conclusion he made was correct.

Relevant provisions

21. Section 17A(3)(a) and (3)(b)(i) of the Public Order Ordinance provide that:

“(3) Where any public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, is an unauthorized assembly by virtue of subsection (2) [such as a public procession held in contravention of section 13 of the Public Order Ordinance] ——

(a) every person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in or forms or continues to form part of any such unauthorized assembly, and

(b) every person who ——

(i) holds, convenes, organizes, forms or collects, or assists or is concerned in the holding, convening, organizing, forming or collecting of, any public meeting or public procession referred to in subsection(2)(a); or

…

after the same has become an unauthorized assembly as aforesaid,

shall be guilty of an offence and shall be liable ——

…

(ii)   on summary conviction, to a fine at level 2 and to imprisonment for 3 years.”

22. Section 13 of the Public Order Ordinance is as follows:

“(1) A public procession may take place if, but only if ——

(a) the Commissioner of Police is notified under section 13A of the intention to hold the procession;

(b) the Commissioner of Police has notified under section 14(4) the person that he has no objection to the procession taking place or is taken to have issued a notice of no objection; and

(c) the requirements under section 15 are complied with (Replaced 119 of 1997 s.6)

(2) This section shall not apply to ——

(a) any public procession which is not a procession on a public highway or thoroughfare or in a public park;

(b) any public procession consisting of not more than 30 persons;

(c)   any public procession of a nature or description specified by the Commissioner of Police by notice in the Gazette.”

23. The following are the contents of section 13A of the Public Order Ordinance:

“(1) For the purposes of section 13, notice of the intention to hold a public procession shall be given in writing to the Commissioner of Police ——

(a) in the case of a public procession held solely for the purposes of a funeral at which the body is present, not later than 24 hours prior to the forming of the procession;

(b) in any other case ——

(i) not later than 11 a.m. on the same day of the week in the preceding week as the day on which the procession is intended to be held; or

(ii) where the last day for giving notice under subparagraph (i) would fall on a general holiday, not later than 11 a.m. on the first day immediately preceding that day which is not a general holiday.

(2) Notwithstanding subsection (1), the Commissioner of Police may, and shall in any case where he is reasonably satisfied that earlier notice could not have been given, accept shorter notice than is specified in that subsection.

(3) In cases where the Commissioner of Police has decided not to accept shorter notice than is specified in subsection (1), he shall as soon as is reasonably practicable inform in writing the person purporting to give the notice of his decision and the reasons why the shorter notice is not acceptable.

(4) Notice under this section shall be given by being delivered in person by the person giving it, or by any person on his behalf, to the officer in charge of a police station, and shall contain particulars of the following matters ——

(a) the name, address and telephone number of ——

(i) the person organizing the procession and any society or organization promoting or connected with the holding of the procession; and

(ii) a person able to act, if necessary, in place of the organizer for the purpose of section 15(1)(a);

(b) the purpose and subject-matter of the procession;

(c) the date, precise route, time of commencement and duration of the procession;

(d) in respect of any meeting to be held in conjunction with the procession, the location, time of commencement and duration of the meeting; and

(e) an estimate by the person organizing the procession of the number of people expected to attend the procession.

(5)   The Commissioner of Police shall issue written acknowledgment of receipt of notice under this section to the person giving or delivering the notice.”

My considerations and opinions

24. In Leung Kwok Hung’s case, Leung Kwok Hung refused to comply with the requirement under section 13A of the Public Order Ordinance that he should notify the Commissioner of Police in writing and he held an unauthorized assembly comprising between 40 and 96 people.  There were two co-defendants, who assisted in the holding of that unauthorized assembly.  The three defendants were convicted.  They appealed to the Court of Final Appeal.  The issues involved were set out in the headnote of that case on page 234 [which is the Chinese version; the English version is on page 229]:

“... statutory scheme regulating public processions — discretion of Commissioner of Police to object to procession for purpose of “public order (ordre public)” — contrary to right to freedom of assembly as “prescribed by law” requirement not met — severance of public order (in law and order sense) from “public order (ordre public)” — Public Order Ordinance (Cap.245) ss.14(1), 14(5), 15(2)”

25. In that case, although the focus of the defendants’ challenge was that the discretion exercised by the Commissioner of Police to object to the procession in the interests of public order (ordure public) was too wide and too uncertain, it is undeniable that the Court of Final Appeal had very carefully scrutinized the whole statutory notification scheme and the relevant provisions about public processions (paragraphs 43 to 64 of the judgment).

26. The majority opinion of the Court of Final Appeal was:

“65. It is not seriously argued that the mere statutory requirement for notification is unconstitutional. Plainly, such an argument would be untenable. Apart from anything else, notification is required to enable the Police to fulfil the positive duty resting on Government to take reasonable and appropriate measures to enable lawful demonstrations to take place peacefully. The statutory requirement for notification is constitutional. A legal requirement for notification is in fact widespread in jurisdictions around the world.”

It can be seen that part of the argument in that case was whether the statutory notification scheme was constitutional, but the appellants did not seriously argue over this issue.

27. Moreover, Bokhary PJ, who dissented from the majority, also acknowledged in his judgment that the receipt of reasonable notification by the police prior to the holding of a procession or assembly is conducive to the holding of the procession or assembly in a peaceful manner (paragraph 135 of the judgment):

“ In Hong Kong, as in many other places around the world, pavements are often crowded and vehicular traffic is often heavy. … freedoms of assembly, procession and demonstration can be facilitated rather than hindered by reasonable arrangements made by the police. And the ability of the police to make such arrangements is of course greatly enhanced by receiving reasonable notification. …”

28. I agree with the respondent’s argument.  Having carefully examined the statutory notification scheme, the Court of Final Appeal held that it was constitutional.  To reduce relevant information, which covers only limited areas, into writing and supply it to the police within a reasonable time limit and under reasonable circumstances are essential elements which constitute “reasonable notification”.  This requirement is necessary and proportionate in that it will help the police in their efforts to facilitate the holding of a procession or assembly in a peaceful and orderly manner.

29. Before the organizer of a procession sends the relevant information to the Commissioner of Police, the police have no basis to consider whether, in the interests of one or more of the four aims, it is necessary to object to the holding of the procession which the organizer intends to hold, or whether it is necessary to impose any restrictions or conditions in respect of the procession; and the Commissioner of Police has no way to make any arrangements for taking reasonable and appropriate measures to assist in the holding of lawful and peaceful assemblies. Therefore, the statutory notification scheme itself does not touch upon the four aims stated in Article 17.  Prior to receiving the notice, the police cannot possibly know in advance whether they will, on the basis of one or more of the four aims, raise any objection or impose any restrictions.

30. I find that the appellants’ argument is misconceived.  The Magistrate did not need to make and should not have made the finding on his own that the notice in writing requirement was imposed on the basis of one of the four aims, namely public order (ordre public).

31. However, I agree with the Magistrate’s analysis of verbal notice and his conclusion that it could never be a workable method (paragraph 95 of the Statement of Findings):

“…

I. It is hard to prove something which is just expressed by word of mouth. It is necessary to put the content in writing, so that there is proof. The police have to work in coordination with the marchers, in order to make prior arrangements as to the deployment of manpower and allocation of a suitable site for the activities, and to put in place traffic management measures. They can never just rely on a verbal notice and rashly make decisions about how to use an important community resource which is limited in supply, i.e. the law enforcing police force.

II. Just think about this: If a procession has begun and only then do the police realize that the venue where the procession takes place is different from that which is specified in the verbal notice given by the organizer. What follows would be that each side stick to their own version and no one could rely on any tangible evidence. In the case of a procession or demonstration consists of more than 30 persons, if any dispute breaks out, it is not difficult to imagine that the marchers or protesters would become highly emotional and may accuse the police of playing tricks and trying to suppress their activities. When a procession is underway, it is impossible to adjudge there and then who is right and who is wrong.

III. Furthermore, the information conveyed by verbal notice may be unclear. In the process of speaking and listening, there may be misunderstanding. The speaker may speak with an accent, for example, one thousand may be confused with seven thousand. The names of different places may have similar pronunciations, and mistakes or misapprehension may occur when the names are uttered or when the voices are picked up by the ear. By contrast, once information is put down in writing, generally it can be readily checked and verified.

IV. If any mistake is made about the place for the holding of the procession, large amount of manpower may be deployed to the wrong place, and so little can be done to facilitate the holding of the procession at the right place.

…”

32. Actually, it is not the case that the appellants or the organizer of the procession had given notice which was not in writing.  The Commissioner of Police did not receive any notice at all beforehand.  It seems to me that the issue of whether the requirement about notice in writing is constitutional, which is raised by the appellants, is purely for academic discussion and had no connection with the appellants.

33. This ground of appeal is not established.  The procession in the present case was an unauthorized assembly.

Ground of appeal 2

34. The appellants claimed that during the period which commenced at 2305 hours on 4 June and ended at 0120 hours on 5 June, the police first stopped the marchers, then encircled them and finally arrested them and took them away from the scene.  The “public procession” organized for the “common purpose” of marching to the North Point Police Station to stage a protest and which set off earlier at the Victoria Park had already ended at 2305 hours.  Subsequent to this moment, the reason for the people’s assembling at the scene was that they were stopped, encircled and detained involuntarily by the police.  The prosecution therefore, they said, failed to prove beyond reasonable doubt that the appellants took part in an unlawful assembly.

35. Apart from that, the appellants complained that the evidence against D6 was that she had said something through a loudhailer at 0039 hours, that the prosecution had no evidence to show D6 had done anything as a participant before 0039 hours, and that D6 came into the picture only when she was detained by the police and involuntarily remained at the scene.  They said, therefore, she did not take part in an unlawful assembly.

Ground of appeal 3

36. The appellants alleged that the detention of the marchers by the police was unlawful.

37. According to the prosecution case, the evidence of the police witnesses and the video footage, at 2305 hours the police were ordered to encircle the marchers.  At 2320 hours, the police had encircled the marchers.  If the court is to decide starting from when the marchers were detained by the police and lost their right to freedom of movement, the basis for making the decision should be the time when the police began to carry out the task of encircling the marchers. The court should not rely on whether individual police officers at the frontline had faithfully and “completely” carried out the order of their supervisors, nor rely on whether individual marchers were able to leave the scene.  The appellants argued that at 2305 hours, or 2330 hours at the latest, the police had so acted that the marchers lost their freedom of movement.  When the police detained the marchers, they did not tell them the reason for their detention, therefore the detention of the marchers by the police was an unlawful detention.

38. The appellants relied on Christie and Another v Leachinsky [1947] AC 573 to support their contention.  In Christie, the House of Lords unanimously held that (see the holding on page 574):

“ …an arrest without warrant can be justified only if it is an arrest on a charge made known to the person arrested, …

    It is a condition of lawful arrest that the party arrested should know on what charge or on suspicion of what crime be is arrested: … Even if circumstances exist which may excuse this, it is still his duty to give the information at the first reasonable opportunity after the arrest.  The exigency of the situation … cannot justify or demand … a refusal to state the reason of arrest …”

39. The appellants submitted that the Magistrate misapplied Christie, and that he erred in thinking that to inform the marchers prematurely that they were going to be arrested would alert them like stirring the grass and alarming the snake, or it would stir up their emotion to resist the police, and using this as the reason to support his finding that the present case was an exception, so the police were not required to inform the marchers of the reason when they detained them and that it was reasonable not to make it known to them until 0100 hours. The appellants considered that in this case there was nothing which showed or suggested that if the marchers were informed of the reason for detaining them or were informed that they were going to be arrested, they would take action to resist; on the contrary, the appellants said, it could be seen from the prosecution’s video footage that after the marchers were encircled and detained, they repeatedly asked the police at the scene why they were detained there.  It was because they could not obtain any answer that they wanted to resist and leave, and for this reason they were accused of charging the police cordon and disrupting order.  The above-mentioned concern which the Magistrate raised on behalf of the police was nothing but groundless speculation not supported by any evidence, and besides, such concern was not part of the prosecution case.  The prosecution had never adduced any evidence to explain why they did not inform the marchers of the reason for their detention when they detained them.

40. Furthermore, the appellants contended that at the scene after 2345 hours and up to the completion of all the arrests, at most of the time the people behaved in a peaceful and orderly manner, except that some individuals wanted to asked for the reason for their detention or wanted to leave but failed to get what they wanted, and an altercation with the police ensued.  In this case, they said, there were no exceptional circumstances or emergencies which, as pointed out in Christie, could render the fundamental principle that the reason should be made known at once impracticable.  In any event, it was unreasonable that it was not until 0100hours that the marchers were informed for the first time of the reason why they were detained.  Therefore, such detention constituted arbitrary / unlawful detention.

41. Moreover, the appellants submitted that the statutory power which the police relied on for executing the arrests (i.e. section 54 of the Police Force Ordinance, Cap 232, Laws of Hong Kong) was not applicable to the present case, because at the material time the purpose of the detention was [to wait for] reinforcement, therefore the detention was unlawful.

42. The appellants argued that the prosecution were not entitled to make a general assertion that the police put the people under detention under other Ordinances.  The appellants prayed in aid the dictum of Lord Dyson in paragraph 71 of the judgment of R (WL (Congo)) v Home Secretary (SC(E)) [2012] 1 AC 245:

“… Where the detainer is a public authority, it must have the power to detain and the power must be lawfully exercised. Where the power has not been lawfully exercised, it is nothing to the point that it could have been lawfully exercised. If the power could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages. But that is not a reason for holding that the tort has not been committed.

Respondent’s reply

43. The respondent relied on the video footage and submitted that the Magistrate’s conclusion that the marchers voluntarily assembled was correct and was fully supported by the evidence.

44. The respondent asserted that it was not true that starting from 2305 hours the marchers were detained by the police and that if the court found that the police did detain the marchers after 0035 hours, the Magistrate had correctly found that the detention was lawful.  The respondent said the Magistrate did not misinterpret the ratio of Christie.

45. The respondent emphasized that as early as 2252 hours the police had announced that the procession was an unauthorized and therefore unlawful assembly, and that subsequently they had repeatedly asked the marchers to go back to the pavement and had warned them by displaying the relevant warning banner, and that if the marchers were really detained by the police, they would surely know for what reason they were detained.

46. The respondent submitted that even if the police wrongly cited section 54 of the Police Force Ordinance, no harm had been done.  On the authority of To Kwan Hang, the police could detain the marchers by exercising the powers conferred by the common law and section 10 of the Police Force Ordinance.  The respondent also relied on R v Pagett [1983] 76 Cr App 279 to argue that the unlawfulness of the appellants’ assembly would not be altered by the police’s lawful execution of their duties.

47. The respondent stressed that when dealing with a situation such as an unlawful assembly, the court should respect the decisions made by the police officers at the scene in response to the volatile condition at the material time, and should not base its consideration on the benefit of hindsight.

Relevant provisions

48. Section 18 of the Public Order Ordinance provides that:

“(1) When 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly.

(2) It is immaterial that the original assembly was lawful if being assembled, they conduct themselves in such a manner as aforesaid.

(3) Any person who takes part in an assembly which is an unlawful assembly by virtue of subsection (1) shall be guilty of the offence of unlawful assembly and shall be liable ——

…

(b) on summary conviction, to a fine at level 2 and to imprisonment for 3 years.

My considerations and opinions

49. Grounds of appeal 2 and 3 can be dealt with together.

50. I accept the respondent’s argument that at 2252 hours Inspector Sham had clearly told the people present there that the procession which was in progress at that time was an unauthorized assembly, and from the video footage it can be seen that the police had warned the marchers by showing them a banner with the warning on it.

51. The evidence showed that the police stopped the marchers at 2305 hours so as to let the trams be driven away. After the trams left, the police did not allow the marchers to march forward on the roadway; instead, they asked them to return to the pavement.  At this juncture, D1, through a loudhailer, suggested to the marchers that they should walk forward together slowly.  Then she handed the loudhailer to D4, who cried out “One, two, three”.  The marchers acted according to D4’s commands and charged the police cordon.  The force used by them was substantial.  The police raised up a red banner and ordered the marchers to stop charging the police, otherwise the police would use force.  Finally, they succeeded in stopping the marchers from moving forward.

52. Around 2320 hours, the police decided to encircle the marchers, but because they did not have enough manpower, they could only block the marchers in front of, on the right side and at the back of the procession.  The police still repeatedly told the marchers to go onto the pavement.  Having watched the video recording, the Magistrate considered that the only reason why the police ultimately succeeded in encircling the marchers was that their way forward was blocked.  They simply ignored the police advice that they should go onto the pavement.

53. I do not endorse the appellants’ view that starting from the moment a high ranking police officer gave the order that the marchers be encircled, the marchers were prevented from moving about freely.  The evidence in the present case was that PW14 and other police officers again and again asked the marchers to go onto the pavement and not to march on the roadway.  Some marchers did go onto the pavement, but the appellants did not.  Some people even clearly said that they would not accede to the request of the police.  They were not detained at all.  The truth is that they, of their own volition, chose to remain on the roadway to go on with the unauthorized procession.

54. At 2345 hours, the marchers charged the police cordon again.  Some people broke through the encirclement. A police officer was pushed so hard that he hit against a bus.  The police again raised up the warning banner to warn them that they should stop rushing the police.  In the end, they succeeded in stopping the marchers.

55. The evidence was that the number of marchers on the roadway dropped from 150 people at the early stage to 80 people at about 0020 hours.  Around 0025 hours, the police prepared themselves for arresting the marchers who stayed on the roadway for unlawful assembly, but at that time the marchers could still leave freely.  What D1 and D6 said at 0035 hours and 0039 hours to the marchers would show that they were able to leave freely.

56. The Magistrate made the finding that after 0035 hours the police succeeded in completely encircling the marchers on the roadway for the purpose of making arrests.  At 0100 hours, the police formally announced that they would arrest the marchers on the roadway within the cordoned-off area.  Ultimately, 53 people, including D1 to D8, were arrested.

57. I agree with the respondent’s submission: D1 to D8 were formally detained after 0035 hours and they remained so until the police announced that they would arrest them.  The duration was not more than half an hour.

58. What happened in Christie was that two police officers, namely Christie and Morris, had reasonable grounds for suspecting that Leachinsky had committed the felony of receiving stolen goods, but they did not give this as the ground of arresting Leachinsky; instead, they told him they suspected that he had committed a lesser offence, i.e. the misdemeanor of unlawful possession under section 507 of the Liverpool Corporation Act 1921.  The provision relied on by the officers gave them no power to arrest without warrant.  Leachinsky was detained in custody.  Subsequently, he sued the police officers for false imprisonment and claimed for damages.  The officers appealed to the House of Lords.

59. The House of Lords unanimously held that when a policeman arrested someone without warrant, he had to inform the party arrested on suspicion of what crime he was arrested, or at least inform the party arrested the role he played in the facts which constituted a crime on his part.  Even if special circumstances existed at the time of the arrest so that the policeman could not there and then acquaint the party with the cause of his arrest, the policeman should still give him the information within a reasonable period.  The exigency of the situation which justifies arrest without a warrant cannot justify either a refusal to state the reason of arrest or a mis-statement of the reason.

60. Viscount Simon pointed out in his judgment (page 587) that:

“... (3.) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. ...”

61. Lord Simonds in his judgment referred to some exceptional circumstances which included the situation in which the party arrested is caught red-handed and the crime is patent to high Heaven, or where the policeman needs to secure a violent criminal (his judgment on page 593).

62. Of course, the issue in the present case is not whether the police had informed the appellants the reasons why they were arrested at the time the police arrested them.  The issue is whether the conduct of the police before they made the arrests —— namely, after 0035 hours when the police succeeded in encircling the marchers and preventing them from leaving, they did not there and then told them why they were not allowed to leave —— constituted false imprisonment.

63. I endorse the Magistrate’s view that in the present case a large scale arrest operation was involved and it should not be mentioned in the same breath with ordinary law enforcing activities.

64. The Magistrate made the following findings:

“114. The court considered that a large scale arrest operation should not be mentioned in the same breath with ordinary law enforcing activities. The reasons were that a large scale arrest operation involved major problems concerning deployment of manpower, and when the police were shorthanded, they had to avoid alerting those people who were targets like avoiding stirring the grass and alarming the snake and refrain from stirring up the marchers’ and the protesters’ emotion to resist the police.

115. The court found that in the case of a large scale arrest operation, ‘emergency’ includes the critical situation in which it is not yet the appropriate moment for executing the arrests, and if the police do anything which might trigger the marchers and protesters to resist (including to inform them prematurely that they were going to be arrested), the situation might deteriorate into one which is out of the control of the police.

116. No later than 25 minutes after the police detained the 53 marchers, the police declared to them (i.e. informed them) that they were under arrest for unlawful assembly. In the court’s view, this length of time did not exceed the reasonable period of time referred to in [Christie].

117.  The court found that the detention of the defendants by the police from 12.35 a.m. to 1 a.m. was entirely lawful.”

65. The appellants protested that there was no evidence which showed that the marchers, including the appellants, would resist if they were informed that they were going to be arrested.  However, the fact is that after the police made the warning they charged the police cordon again.  The police waited for police vehicles and reinforcement and did not make any formal arrests until they had enough hands to encircle those marchers who refused to leave the roadway.  Judging from all the circumstances which existed at the material time, such approach did not constitute false imprisonment.  Besides, the speeches which D1 and D6 made to the people at the scene at 0035 hours and 0039 hours clearly showed that they were psychologically prepared for the risk of being arrested.  Therefore, when the police succeeded in encircling them and did not allow anyone to go onto the pavement, they would surely know they were going to be arrested.

66. According to the evidence, the police officer responsible for the encirclement (PW13) personally held the opinion that the marchers had committed the offence of unlawful assembly, and that he had power under section 54 of the Police Force Ordinance to detain the marchers while he made enquiries or took other actions, including deploying policemen for making arrests.

67. Section 54 of the Police Force Ordinance provides that:

“(1) If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, who acts in a suspicious manner, it shall be lawful for the police officer—

(a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time; and

(c) if the police officer considers it necessary to do so—

(i) to search the person for anything that may present a danger to the police officer; and

(ii) to detain the person during such period as is reasonably required for the purpose of such a search.

(2) If a police officer finds any person in any street or other public place, or on board any vessel, or in any conveyance, at any hour of the day or night, whom he reasonably suspects of having committed or of being about to commit or of intending to commit any offence, it shall be lawful for the police officer—

(a) to stop the person for the purpose of demanding that he produce proof of his identity for inspection by the police officer;

(b) to detain the person for a reasonable period while the police officer enquires whether or not the person is suspected of having committed any offence at any time;

(c) to search the person for anything that is likely to be of value (whether by itself or together with anything else) to the investigation of any offence that the person has committed, or is reasonably suspected of having committed or of being about to commit or of intending to commit; and

(d) to detain the person during such period as is reasonably required for the purpose of such a search.

(3) In this section, “proof of identity”（身分證明文件）has the same meaning as in section 17B of the Immigration Ordinance (Cap. 115).”

68. The respondent agreed that section 54 was not applicable to the circumstances at the scene at the material time.

69. My view is that although that particular police officer mistakenly referred to the power conferred by section 54 of the Police Force Ordinance, actually in those circumstances he had sufficient reason to believe that the marchers had committed the offence of unlawful assembly and he had the power to detain them for arresting them later.  Furthermore, the personal opinion of one police officer will not impinge on the legality of the whole operation of the police.

70. The facts of the present case were categorically different from those of R (WL (Congo)) cited by the appellants.  In that case, the government (the immigration authorities) wrongly applied the law and issued an arrest warrant, and then detained the claimants pursuant to the arrest warrant.  The detention was therefore unlawful.  That case is not applicable to the facts of the present case.

71. Although the evidence showed that D6 said something through a loudhailer at 0039 hours, I have rejected the appellants’ argument that from 2305 hours onwards the appellants, including D6, and other marchers were detained “involuntarily” on the roadway at the scene.  In addition, it is patently obvious that D6 was already present in the procession before 0039 hours. She could not suddenly appear at the scene as if by conjuring some form of magic.

72. Both grounds of appeal 2 and 3 are not substantiated.

73. In my judgment, the Magistrate’s findings are correct and the convictions are in no way unsafe.  I dismiss the appellants’ appeals against their convictions.

Grounds of appeal (sentence)

74. It was submitted that D1 had received tertiary education and had a good personal background.  She was a full-time officer of an affiliated society of the Catholic Church of Hong Kong.  Her taking part in the demonstration involved in this case was not for personal gain.  Her purpose was to express her concern about how police powers were being exercised.  Even if the court found that she had taken part in the first charge on the police cordon, the co-called charge was just a forward march which lasted a very short time and no policeman or any person was injured.  She did not take part in the second charge.  For charge (1), the appellants submitted, four weeks’ imprisonment suspended for 12 months was manifestly excessive.

75. It was further submitted that other appellants who were convicted of charge (1) were just fined, and that in contrast with their sentences, D1’s suspended sentence was manifestly excessive.

76. The appellants pointed out that during the mitigation submission stage the Magistrate mistakenly said that D1 had taken part in the second charge on the police cordon (pages 518 and 527 of the appeal bundle), and that for this reason he erroneously thought that D1 was more culpable than the other appellants.

77. D4 adopted the submission made by D1’s counsel.

Magistrate’s reasons for sentence

78. The Magistrate clearly took the view that the culpability of D1 and D4 was higher than that of other appellants:

“Aggravating factors

(1) D1 and D4

144. In the court’s view, particular attention should be paid to the fact that luckily no one suffered any physical injury in the present case.

145. The evidence before the court showed that during the second charge on the police cordon, one policeman was pushed towards a bus and his body hit against the bus.

146. The evidence also showed that as a result of the second charge, the police for some time lost a baton.

147. Traffic was blocked by the procession, but the evidence was that the blockage did not reach the most serious level and that the duration was not too long.

148. However, when the procession was stopped for the first time (i.e. around 11.05) D1 and D4 directed the marchers to charge the police cordon. The court considered that this was a serious aggravating factor in this case.

149. The general picture of what happened during the charge was shown by the video footage. The court considered it fortunate that the scenario of policemen falling backward and triggering a domino effect did not happen at that time; otherwise, most probably some marchers or policemen would be injured.

150.  D1 and D4 directed the whole procession to charge the police cordon, ignoring the personal safety of the marchers and the police.  In the court’s judgment, such conduct was far more serious than marching and blocking traffic.”

My considerations and opinions

79. Although in the arrangement of the paragraphs the Magistrate put down D1 side by side with D4, and starting from paragraph 144 he described what happened during the second charge on the cordon, what the Magistrate was saying, when these paragraphs are read in context, was that he specifically pointed out that both D1 and D4 “directed the whole procession to charge the police cordon, ignoring the personal safety of the marchers and the police”, and that such conduct was far more serious than just marching and blocking traffic.

80. Both D1 and D4 were sentenced to four months’ imprisonment, suspended for 12 months, in respect of charge (1).  It can be seen that the Magistrate did not make the mistake of thinking that D1 had taken part in the second charge on the cordon and taking that into account in sentencing her.

81. I completely agree with the Magistrate’s view. Both D1 and D4 told the probation officer that the Public Order Ordinance was unreasonable and outdated, and they maintained that they should not be required to give the police prior notice.  They did not acknowledge that they had broken the law.  That being so, although there were positive comments in the reports, it was unrealistic to sentence them by making a probation order or community service order.

82. The conduct of D1 and D4 was more serious than that of other appellants.  The sentence of four weeks’ imprisonment suspended for 12 months imposed by the Magistrate was neither wrong in principle nor manifestly excessive.

83. I dismiss the appeals lodged by D1 and D4 against their sentences.

Conclusion

84. I dismiss the appellants’ appeals against their convictions.  I also dismiss the appeals against sentence lodged by D1 and D4.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.