HKSAR v. LEUNG JANNELLE ROSALYNNE

CACC 101/2021

[2022] HKCA 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 101 OF 2021

(ON APPEAL FROM DCCC NO 892 OF 2020)

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J U D G M E N T

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Hon M Poon JA (giving the Judgment of the Court):

1.  The applicant together with other defendants were convicted of one count of knowingly taking part in an unauthorized assembly, contrary to section 17A(3)(a)  of the Public Order Ordinance, Cap 245 (“POO”)  on their own plea and admission. She was sentenced to 4 months’ imprisonment. Her application for leave to appeal against her sentence was refused on 19 January 2022.

2.  By a Notice of Motion dated 28 February 2022, the applicant now applies for a certificate under section 32(2)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that there are points of law of great and general importance involved in our decision.

3.  Both parties have consented to this application being determined on the papers.  We have received written submissions from the applicant and the respondent, and a reply to the respondent’s submissions from the applicant.

4.  The two questions sought to be certified are framed in the following terms:

Question 1: “Whether the offence of taking part in an unauthorized assembly under section 17A(3)(a)  in Part III of the Public Order Ordinance (Cap 245)  (as opposed to the offence of holding, convening, organizing, forming or collecting of an unauthorized assembly under section 17A(3)(b)  or participating in an unlawful assembly under section 18 in Part IV of the Ordinance)  which was prohibited on public health ground (as opposed to grounds relating to public order)  is an pre-emptive offence aimed at preventing any breach of public peace?”

Question 2: “Whether the gravamen of the offence of taking part in an unauthorized assembly under Part III of the Ordinance (as opposed to the offences involving risk of or actual breach of public peace like unlawful assembly and riot under Part IV of the Ordinance)  lies in the number of its participants?”

Applicant’s submission

5.  Mr Steven Kwan submits that it is reasonably arguable that this Court, in our holdings in the judgment[1] at paragraphs 28 and 30, may have gone too far in characterizing the nature and gravamen of the section 17A offences as on a par with other offences under Part IV of the POO as being “pre-emptive” and “in the number of participants involved”, when the prohibition was merely on public health ground.  Reliance is placed on the majority holding of the CFA in Leung Kwok Hung v HKSAR[2] that the offence of holding an unauthorized assembly under section 17A(3)(b)(i)  of Part III of the POO stemmed from non-compliance of “the statutory notification requirement”.[3] Mr Kwan also relies on Strasbourg jurisprudence such as Kudrevičius v Lithuania[4] which he submits is likely to be highly persuasive.  Further, it is submitted that despite the applicant has already served her imprisonment term, an answer by the Court of Final Appeal in favour of the applicant could have an impact on future cases[5].

Respondent’s reply

6.  Mr William Siu, SADPP(Ag.), for the respondent, submits that the real complaint in Question 1, to put it simply, is whether the sentencing court should take into account the prevention of breach of public peace.  This is a matter of fact dressed up as a point of law.  It is contended that the pre-emptive nature of the offence of “unauthorized assembly” as well as the notification system is well settled in Hong Kong and other ECtHR cases: Leung Kwok Hung v Secretary for Justice (No.2)[6], Berladir and others v Russia[7], Austin v United Kingdom[8].

7.  Further, in relation to Question 2, the crux of the notification system lies in the number of participants, thus the offence of unauthorised assembly shares the same gravamen as unlawful assembly where participants act in and use those large numbers to achieve their common purpose.

8.  Mr Siu further submits that as the applicant has served her sentence, the two questions raised are purely academic.  Therefore, both points are not reasonably arguable points of law of great and general importance.

Applicant’s reply to the submission of the respondent

9.  The applicant, whilst accepting that the notification scheme under Part III and other provisions in the POO are ultimately for the purpose of public order,  contends that the notification scheme is a scheme that enables the government to effectively fulfil its positive duty to facilitate lawful and peaceful assemblies.  The offences of unauthorized assembly and unlawful assembly are founded upon different legal policy considerations and it would be wrong for the sentencing court to take account of factors such as the pre-emptive nature and the number of participants in sentencing the former offences.

Discussion

10.  In our judgment[9], we say that the gravamen of the section 17A offence lies in the number of participants, which reflects its pre-emptive nature because of the risks of disorder triggered by massive gathering as well as to public health during a pandemic.  The pre-emptive nature of the section 17A offence in the interest of national security, public safety, public order or protection of the rights and freedoms of others; and the significance of the number of participants in the context of the maintenance of public order are unequivocally stated in Leung Kwok Hung. [10]  The Court of Appeal specifically stated that:

“207. As explained by the Court of Final Appeal (in Leung Kwok Hung & Others v HKSAR (2005)  8 HKCFAR, at paragraph 92(3)), the public order considerations are not confined to cases where violent confrontations would entail. They also embrace traffic conditions and crowd control. Presence of rival groups and reaction of members of the public are also relevant.”

11.  We also note that counsel for the applicant in the court below mitigated on the basis that factors which assist the Court to delineate the seriousness of an unlawful assembly, including the number of participants, can likewise be taken into account in the sentencing of unauthorized assembly offences.[11]

12.  Finally, it is noted that Mr Kwan does agree with this Court’s observation that the applicant’s appeal against sentence was purely academic as she has served the whole of her sentence.

Conclusion

13.  The legal principles in this area of law are well settled.  The two questions cannot be said to raise a point of law of great and general importance and are not reasonably arguable.  The Court declines to certify the questions posed.