HKSAR v. AU KWOK KUEN AND OTHERS

HCMA 948/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 948 OF 2008

(ON APPEAL FROM ESCC 3707/2007)

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J U D G M E N T

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1    Introduction

1.  These appeals raise the general question of the limits of the right of assembly and of the right to freedom of expression when they are sought to be exercised in private residential property without the permission of its owners or occupiers.

2.  The 1^st to 6^th defendants were jointly charged with one count of taking part in an unlawful assembly (charge 1), contrary to section 18(3) of the Public Order Ordinance (Cap 245).  In addition, the 1^st and 2^nd defendants were respectively charged with two counts and one count of assaulting a police officer in the due execution of his duty (ie charges 2 and 4, and charge 3 respectively).

3.  All six defendants pleaded not guilty to the charges.  After the close of the prosecution case, the prosecution accepted that the 1^st defendant had no case to answer in respect of charge 4.  After hearing submissions, the Magistrate (Mr Gary Lam) ruled that the 1^st to 6^th defendants had a case to answer in respect of charge 1, and the 1^st and 2^nd defendants had a case to answer in respect of charges 2 and 3 respectively.

4.  The defendants elected not to give evidence.  However, the 2^nd defendant called a total of 7 defence witnesses.  The other five defendants also relied on their evidence.

5.  During the trial, the defence also made four applications to the Court for the issue of a witness summons to Mr Michael Suen Ming-yeung (Mr Suen), the then Secretary for Housing, Planning and Lands, to testify for the defence.  The Magistrate refused all four applications.

6.  The Magistrate found all six defendants guilty of charge 1, but he acquitted the 1^st and 2^nd defendants of charge 2 and charge 3 respectively.  On charge 1, the 1^st and 4^th defendants were each sentenced to a community service order for 60 hours, while the 2^nd, 3^rd, 5^th and 6^th defendants were each bound over to be of good behaviour (in the sum of $2,000 for a period of 18 months).

7.  All defendants appeal from their convictions of charge 1 to the Court of First Instance.

2    Facts and issues

8.  The facts and issues may be briefly stated.  On Sunday, 3 June 2007 at around 11:40 am, a group of about 26 persons arrived at the outside of the entrance of Shuk Yuen Building, No 2 Green Lane, to present a petition and hold a demonstration.  It was organised by a housing concern group.  Shuk Yuen Building is a private residential development.  It comprises 6 blocks of low-rise multi-storey buildings (Blocks A to F).  There is only one entrance to the development, which is used both by the residents/visitors as well as vehicles.  A pair of metal gates which open inwards are installed at the entrance.  The metal gates are operated electrically by the caretaker whose booth is located immediately behind the gates, which lead onto a private driveway.  The driveway leads to a common open space round a corner several hundred metres away, where residents park their cars.  On one side of the open space are Blocks C and D.  Mr Suen, to whom the concern group planned to make the petition on some housing matter, resided at a flat in Block D at the time.

9.  The metal gates were closed at the time when the group of “petitioners” (as they have been called) arrived at the entrance to the development.  They remained closed until around 12:05 pm when a resident’s vehicle returned to the development.  The caretaker opened the metal gates to allow the vehicle in.  Seizing upon the opportunity, the petitioners went inside the development through the gates at the same time.  The several policemen who were at the scene to maintain order were unable to prevent the petitioners from entering the gates.  But they immediately formed a “human chain” on the driveway to keep the petitioners from approaching the common open space.  In those circumstances, the petitioners assembled at that part of the driveway near the entrance.  Using loudhailers, they shouted slogans and demanded to see Mr Suen.

10.  At around 12:20 pm, the 4^th defendant (a legislative counsellor who is widely known as “Long Hair”) arrived at the scene by taxi to support the petitioners.  He entered the development through the entrance (the gates had remained open after the petitioners’ entry) and it is plain from the evidence that he took an active part in assisting the petitioners in their cause that day.

11.  The evidence also shows that the police officers present had been asking the petitioners to stay where they were, whilst they would, so they said, find out for the petitioners what Mr Suen’s attitude towards the petitioners was.

12.  However, by around 12:51 pm, some of the petitioners had run out of their patience and, led by the 4^th defendant, they charged the police cordon.  Some of them managed to break through the police line.  The police officers withdrew down the driveway and eventually the petitioners reached the common space at the end of the driveway and assembled at the ground floor (common) entrance to Blocks C and D.

13.  The prosecution’s case was that the assembly which the six defendants participated in turned into an unlawful one when they took part in charging the police cordon.  The events were video-recorded and the recordings were produced and played by consent at trial.

14.  In convicting the defendants of charge 1, the Magistrate mainly relied on the recordings produced by the parties, as well as the evidence of the civilian witnesses, namely PW7 (Madam Poon), a resident in the development, and PW1 (Mr Chan), the caretaker.  Little weight was placed on the evidence of the police officers called by the prosecution and by the defence. 

15.  In essence, the Magistrate rejected the defence’s argument that at the material time, the defendants were lawfully exercising their constitutional right of assembly and right to freedom of expression (whilst inside the residential development).  The Magistrate found that the defendants were trespassers and as such they did not enjoy any of the constitutional rights in question whilst within the private residential premises of others.  The Magistrate therefore rejected as irrelevant arguments that the police had breached its positive duty to assist the petitioners in the exercise of their rights and that the police was obstructing or interfering with the petitioners’ exercise of their rights.  The Magistrate further rejected as immaterial the argument that the police had misled the petitioners into believing that it was contacting Mr Suen for his response.

16.  As to the defendants’ commission of the offence, relying on the video recordings, the Magistrate found that each of them took part in charging the police cordon, which was lawfully formed by the police on the driveway.  He found that all defendants had the necessary mens rea for the commission of the offence.

17.  In these appeals, various perfected grounds are relied on by counsel to challenge the convictions and some of them overlap with each other.  The grounds raised by the 4^th defendant are covered by the perfected grounds.  The perfected grounds, as they have been developed in argument, are dealt with under different headings below.

3   Limits of freedom of assembly and of expression – grounds 1(a), (c), (d), (e) & (j) and 2

3.1 Defendants’  arguments

18.  It is plain that central to the defendants’ arguments is the contention that their constitutional right of assembly and right to freedom of expression did not stop at the entrance to the private residential development, regardless of whether they were permitted to enter the same or not.  In other words, whilst they maintain that they were not trespassers at the material time (by reason of some implied permission to enter and remain), but even if they were, that would not have put to an end their constitutional rights in question.  That being the case, it is necessary, the defendants argue, to examine whether the police has breached its positive duty to assist the petitioners in the exercise of their constitutional rights, whether it has unlawfully obstructed or interfered with their exercise of those rights, and therefore whether the defendants are guilty of unlawful assembly under section 18 of the Public Order Ordinance which reads:

“(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 –

(a) on conviction on indictment, to imprisonment for 5 years; and

(b) on summary conviction, to a fine of $5,000 and to imprisonment for 3 years.”

19.  Plainly, whether the police was duly executing its duty, or was wrongfully obstructing or interfering with the petitioners’ lawful exercise of their constitutional rights, would greatly affect the question of whether there was, or was likely to be, a “breach of the peace”.

20.  Mr Hectar Pun for the 1^st, 3^rd and 6^th defendants, Miss Annie Leung appearing for the 2^nd and 5^th defendants, and the 4^th defendant acting in person, all argue that the right of assembly and the right to freedom of expression do not stop at the boundary of a privately owned property, even if no permission is given by the owner of the property for the individuals in question exercising those rights to enter or remain in the property.  They argue that when those rights conflict with the owner’s right to his private property, a sort of “proportionality test” or “balancing exercise” has to be conducted in order to determine the extent or limits of the individuals’ right of assembly and right to freedom of expression whilst within the owner’s private property.  They argue that this is a fact-sensitive exercise, which must depend on the entire circumstances of each individual case.  No hard and fast rule can be laid down.  Indeed, even in respect of this case, Mr Pun is unable or reluctant to tell the Court what exactly constitute the limits of the petitioners’ rights whilst within the private residential development in question, or, put another way, where, physically within the private residential development in question, must the petitioners stop, in order not to overstep the legal boundary and render the exercise of their constitutional rights unlawful.

3.2 Preliminary observations

21.  Counsel rely on some authorities to support their arguments.  I will presently return to these authorities.  However, I do not believe that the law is as uncertain and the result as unpredictable as counsel’s arguments would suggest.  Such a result is not only unsatisfactory from the perspective of a private residential owner, who would not be able to tell in advance which part of his property is free from intrusion by others in the exercise of their “lawful” constitutional right of assembly and right to freedom of expression, but it is also unsatisfactory to those seeking to exercise their constitutional rights.  For they would be in danger of exceeding the legal limits of their constitutional rights once they enter into private residential premises.

22.  I do not believe that this represents the state of the law.

3.3 Relevant constitutional provisions

23.  Some provisions in the Basic Law are highly relevant:

“Article 5

The socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, and the previous capitalist system and way of life shall remain unchanged for 50 years.

Article 6

The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.

…

Article 27

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.

…

Article 29

The homes and other premises of Hong Kong residents shall be inviolable.  Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.

…

Article 39

The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. 

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.

…

Article 105

The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property.

…”

24.  Likewise, it is important to consider some of the provisions in the Hong Kong Bill of Rights, which is constitutionally entrenched by article 39 of the Basic Law:

“ Article 14

Protection of privacy, family, home,

correspondence, honour and reputation

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

…

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.”

3.4 Protection and respect of the rights of others

25.  The right of assembly and the right to freedom of expression are not absolute.  Article 17 of the Hong Kong Bill of Rights which is based on article 21 of the International Covenant on Civil and Political Rights (ICCPR) which guarantees the right of peaceful assembly, specifically provides that restrictions on the exercise of the right may be imposed in conformity with the law, provided that they are “necessary in a democratic society in the interests of … the protection of the rights and freedoms of others”.  Likewise, article 16(2) of the Bill guarantees the right to freedom of expression.  However, article 16(3)(a) expressly provides that the right is subject to restrictions that are provided by law and are necessary “for respect of the rights… of others”.

26.  In the present context where one is concerned with a private residential development, various rights of the co-owners of the development are involved.  They are not mere common law rights to property.  They are constitutional rights also found in the Hong Kong Bill of Rights as well as Chapter III of the Basic Law which govern the “fundamental rights” of the residents of the Hong Kong Special Administrative Region.  In particular, article 29 of the Basic Law specifically provides that “the homes and other premises” of Hong Kong residents shall be “inviolable”, and “arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited”.  In the same vein, article 14 of the Hong Kong Bill of Rights clearly stipulates that no one shall be subjected to unlawful interference with his privacy or home, and everyone has the right to the protection of the law against such interference.

27.  Furthermore, article 105 under Chapter V of the Basic Law expressly states that the Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals to, amongst other things, the use of their property.

28.  All this is not surprising because article 5 of the Basic Law, under Chapter I (General Principles), specifically guarantees that the socialist system and policies shall not be practised in the Hong Kong Special Administrative Region, whereas “the previous capitalist system and way of life shall remain unchanged for 50 years”.  It is trite that a hallmark of a capitalist society is its high respect for personal ownership and property rights.  This finds expression in article 6 of the Basic Law which requires the Special Administrative Region to protect the right of private ownership of property in accordance with law.

29.  Manfred Nowak, in his classic work, UN Covenant on Civil and Political Rights CCPR Commentary (2^nd revised edition), explains the “rights and freedoms of others” exception to article 21 of the ICCPR (on which article 17 of the Hong Kong Bill of Rights is based) as follows (at pp 493-494):

“e) Rights and Freedoms of Others

This protected interest can be found in all limitation clauses in the Covenant, but in contrast to Art. 18(3), it relates not only to fundamental rights.  The limits on freedom of assembly which stem from the protection of the rights of personality of others (in particular, honour and reputation) are the same as those on freedom of expression and information.  To be taken into consideration with assemblies are the rights of passers-by, as well as those of participants, to personal safety and physical integrity, which have been dealt with in the context of public safety.  In addition, the prohibition of advocacy of hatred set down in Art. 20(2) should be mentioned in this regard.  However, States parties are under an obligation of protection, and only when this has failed is the restriction or breaking up of the assembly permissible ultima ratio.  As with freedom of movement, freedom of assembly is subject to limitations for the protection of private property of others.  Art. 21 protects assemblies on private property or in private buildings to the same extent as on public streets, squares or in public assembly rooms.  However, the prior approval of the owner is necessary for all property and buildings not freely accessible to the public, regardless of a possible requirement of a public license.  This also applies to publicly owned buildings and property.  However, the State is subject here to a certain obligation to fulfil, as results from the character of freedom of assembly as a political freedom, and, especially, from the prohibition of discrimination.  For instance, the private owner of a performance hall need not make available his or her assembly rooms to a political organization with which he or she is uncomfortable, whereas Art. 2(1) requires States parties to ensure freedom of assembly without distinction as to political or other opinion, i.e., not to discriminate for this or any other listed reason in making available public assembly rooms.  As with freedom of movement, protection of private property must not lead to a complete undermining of real possibilities for assembling.  In such cases, States parties must provide sufficient public facilities for exercising freedom of assembly.” (emphasis added)

30.  In Hong Kong, the position is an a fortiori one.  This is because unlike the position under the ICCPR, private property rights are constitutionally protected under articles 6, 29 and 105 of the Basic Law.

3.5 Cases on activities within privately owned premises

31.  Nowak’s view is echoed by the European Court of Human Rights in Appleby v United Kingdom (2003) 37 EHRR 38, a case concerning the rights to freedom of expression and to peaceful assembly.  In that case, an environmental group campaigned against a plan to build on the only public playing field near a town centre.  It set about collecting signatures for a petition to persuade the local council to reject the project.  It tried to set up stands in a privately owned shopping mall in the town centre.  However, it was prevented from doing so by security guards employed by the company which owned the shopping mall, as the company took a strictly neutral stance on all political and religious issues.  Relying on articles 10 and 11 of the European Convention on Human Rights on the rights to freedom of expression and to peaceful assembly respectively, members of the environmental group complained that they had been prevented from meeting in their town centre to share information and ideas about the proposed building plans.

32.  After considering the domestic position in the United Kingdom as well as the situations in the United States and Canada, the European Court observed:

“46    The Court would observe that, though the cases from the United States in particular illustrate an interesting trend in accommodating freedom of expression to privately owned property open to the public, the US Supreme Court has refrained from holding that there is a federal constitutional right of free speech in a privately owned shopping mall.  Authorities from the individual states show a variety of approaches to the public and private law issues that have arisen in widely differing factual situations.  It cannot be said that there is as yet any emerging consensus that could assist the Court in its examination in this case concerning Art. 10 of the Convention.

47    That provision, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right.  While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (Government offices and ministries, for instance).  Where however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights.  The corporate town, where the entire municipality was controlled by a private body, might be an example.” (emphasis added)

33.  On the facts, the Court did not consider that the members of the environmental group could claim that they were, as a result of the refusal of the private company which owned the shopping mall, effectively prevented from communicating their views to their fellow citizens.  There were other means and ways to express their views, and their argument that they were unable otherwise to exercise their freedom of expression in a meaningful manner was rejected (para 48).  Based on largely identical considerations, the Court found that there was no breach of the right of peaceful assembly either (para 52).

34.  In Appleby,para 27, the European Court of Human Rights noted that in the United States, the US Supreme Court had taken the position that the First Amendment, which protects freedom of speech and peaceful assembly, does not prevent a private shopping centre owner from prohibiting distribution on its premises of leaflets unrelated to its own operations: Lloyd Corp v Tanner, 407 US 551 (1972).  This did not, however, prevent state constitutional provisions from adopting more expansive liberties than the Federal Constitution to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping centre to which the public was invited.  This did not, the European Court noted, violate the property rights of the shopping centre owner so long as any restriction did not amount to taking without compensation or contravene any other federal constitutional provisions: Pruneyard Shopping Center v Robins 447 US 74 (1980), a case turning on the California State Constitution.

35.  Like Appleby, Pruneyard was a case involving a privately owned shopping centre in California.  The decision turned on the “more expansive liberties” granted under California’s free speech clause, which goes beyond the protection guaranteed under article 10 of the European Convention or article 19 of the ICCPR.  That notwithstanding, in the subsequent case of Golden Gateway Center v Golden Gateway Tenants Assn (2001) 26 Cal 4^th 1013[1], the California Supreme Court refused to extend the right to freedom of expression to activities within a privately owned apartment complex.  Distinguishing Pruneyard, the California Supreme Court held that a tenancy association did not have a right under the California Constitution to distribute a newsletter in a privately owned apartment complex.  The Court stated that state action was necessary for a violation of the California free speech clause but that no state action existed in the case because the apartment complex was not fully open to the public.  The Court stressed that in Pruneyard, the shopping centre concerned was functionally equivalent to a “downtown or central business district”, which is a traditional public forum.  The public had been invited to “congregate freely” in the centre, which had a “public character”.  The Court concluded that private property must be public in character before California’s free speech clause may apply, and that under that clause a private property owner’s actions will constitute state action only if the property is freely and openly accessible to the public.  On the facts, the Court noted that the apartment complex did not allow general public access to the property and the landlord employed security guards and doormen to limit access to residential tenants and their invitees only.  The emphasis on privacy and security was clear in each lease.  (See also William J Emanuel, Union trespassers roam the corridors of California hospitals: Is a return to the rule of law possible?  (2009) 30(4) Whittier LR 723–782.)

36.  Like Golden Gateway Center, the present case concerns purely private residential premises, and Pruneyard is wholly distinguishable (not to mention that the California free speech clause involved there is more expansive in scope).  Indeed when compared with Appleby, the position here is an a fortiori one.   In the instant case, there is no question of the private residential property performing the function of a town hall or similar public or “quasi public” venue in which individuals may claim the right to exercise their freedom of expression or assembly in a reasonable manner.  To the contrary, on the evidence, the emphasis on privacy and security is plain.  Nor is one concerned with commercial premises, which are let to a government department or public authority for its official use[2].  What this case is concerned with is purely private residential property.  It is true that a high-ranking government official resides within the premises.  However, in my view, that does not make any difference to the analysis, because the premises are occupied by the high-ranking official as his private residence.  Moreover, the high-ranking official here does not occupy the entire private residential development by himself.  As is common in Hong Kong, he is just one of the many co-owners/co-occupiers in the several multi-storey blocks comprising the residential development.

37.  Furthermore, in the context of Hong Kong at least, by the nature of things, it is next to impossible to imagine a situation where not to permit entry to a private residential development to exercise the right of assembly or the right to freedom of expression would be tantamount to depriving those intending to exercise such rights of any opportunities to exercise them in any meaningful manner, thereby amounting to an effective denial of the rights.  In Hong Kong, opportunities to exercise those rights in public places, including the public street that Shuk Yuen Building faces, are abound.

3.6 Cases concerning activities in public places

38.  For these reasons, I do not consider the cases cited to the Court by counsel for the defendants helpful to the present discussion.  Most of the authorities cited concerned the exercise of the right of assembly and the right to freedom of expression in public places or places of a “public character”.  Thus the New Zealand case, Police v Beggs [1999] 3 NZLR 615, heavily relied on by counsel, concerned a very different situation from ours.  The case involved a protest by 300 students in Parliament grounds.  Their intention was to protest against possible changes to tertiary education funding or structures.  They demanded that the Minister of Education address them from the steps of Parliament.  No specific permission had been sought for the protest in Parliament grounds, but their entry onto the grounds was not impeded.  Subsequently, they were told to leave by the Speaker’s staff, who had been delegated the task of overseeing protests in the grounds.  They refused, and, after warning, were arrested by the police for trespass.  The New Zealand High Court, in the course of judgment, made various observations on how the Speaker might exercise his power to ask protesters to leave Parliament grounds, without infringing the protesters’ relevant rights under the New Zealand Bill of Rights.  The Court applied the test of reasonableness and discussed various considerations relevant to the application of the test (pp 627-632).

39.  In my view, Police v Beggs is a wholly distinguishable case.  In that case, one was concerned with protesting in Parliament grounds, a natural public forum for assembly and expression of opinion, rather than within the private residential premises of private citizens.  The functions and duties of the government (including the executive and legislature) were engaged, in addition to the State’s right and power as landowner.  Citizens’ rights vis-à-vis that of their government’s in a democratic society were involved.  In those circumstances, it is not surprising that the Court would resort to the reasonableness test to resolve the conflicts between different rights. 

40.  However, in the present case, one is concerned with a private residential development.  Private property rights are at stake.  The premises are occupied entirely for private residential premises.  One is not concerned with Government property or Legislative Council grounds (that are generally open to the public), where one could with little restriction stage protests and demonstrations.

41.  In those circumstances, Police v Beggs is of no assistance in the present context.

3.7 Debates over definition of “home” 

42.  Counsel for the defendants argue that in the present case, one is concerned with the private driveway within the development, rather than the flat in which Mr Suen resides.  They contend that there is a distinction between the common areas of a residential development and the flat of which a resident enjoys exclusive right to possession and enjoyment.  It is only the latter which qualifies as the “home” of the resident, within the meaning of article 14(1) of the Hong Kong Bill of Rights which protects against unlawful interference with one’s “home”.  Counsel refer the Court to overseas cases on the meaning of a “home” in different contexts.

43.  In this regard, I believe the correct position has been summarised by Nowak, op cit, at p 399:

“3. Home

As emphasized at the outset, the protection of home in the 19^th century represented the quintessence of bourgeois privacy.  That which took place outside the private home belonged to the area of public life and thus was subject to legal norms and societal rules of conduct.  Events “within one’s own four walls” were, on the contrary, private, i.e., hidden, secret from the public.  Only there could the individual pursue his or her self-realization in a manner corresponding to his or her needs and desires.  The word “home” – or the British saying “my home is my castle” – also gives expression to the correlation between protection of the home and the right of property, a relationship essential for the bourgeois society of the 19^th century, in which the extent of private ownership determined the extent of individual privacy.  The various meanings associated with the word “home” convey a feeling of familiarity, shelter and security.  In this manner, the home symbolizes a place of refuge where one can develop and enjoy domestic peace, harmony and warmth without fear of disturbance.

The protection of the “home” (“domicile”) relates not only to dwellings in the true sense but also to all types of houses regardless of legal title (ownership, rental, leasing, etc.) or nature of use (main domicile, weekend house, garden house, etc.).  The borders of the home run together with that area over which ownership (or any other legal title) extends, i.e., also to the garage and garden.  Even a camping trailer or a house boat are covered by the protection of Art. 17.” (emphasis added)

44.  In my view, the fact that in Hong Kong, most people live in buildings and developments that are under co-ownership does not mean that the common areas within the land and buildings in question do not form part of the “homes” of the co-owners and occupiers of those buildings and land, for the purposes of protection of their privacy under article 14 of the Hong Kong Bill of Rights.  In my view, their right to privacy must be given a generous interpretation.

45.  In Brooker v Police [2007] 3 NZLR 91, the Supreme Court of New Zealand had to consider a defendant’s purported exercise of the right to freedom of expression guaranteed under the New Zealand Bill of Rights on the grass verge of the public road facing a police constable’s house with whom the defendant had a grudge.  He knew that the police constable had been on duty overnight and was resting in her house.  He had rung and knocked until the constable open the door and told him to go away.  He then retreated to the grass verge of the public road where he sang songs in a normal singing voice and played his guitar while displaying a placard referring to police conduct.  He was arrested and was eventually charged for disorderly behaviour. 

46.  On the facts of the case, the majority of the Court found (McGrath and Thomas JJ dissenting), that the defendant’s conduct could not be said to be disorderly.  Nonetheless, McGrath J, in a particular illuminating judgment, discussed the inter-relationship between the freedom of expression and the protection of privacy:

“[123]  Privacy is “an aspect of human autonomy and dignity”.  Although, as a police constable, the complainant is a public official, in her private life she is entitled to enjoyment of the rights of an ordinary citizen.  Her privacy interest in the present appeal is her right to be free from unwanted physical intrusion into the privacy of her home. The desire of a person to be free from unwanted physical access by others has been usefully contrasted with a separate but overlapping category of privacy which is concerned with the desire to be free from unwanted access to private information.  The former aspect of the right to privacy is recognised in art 17 of the International Covenant on Civil and Political Rights,

…

[124] Both aspects of privacy have also been recognized by the Courts.  In Campbell [v MGN Ltd [2004] 2 AC 457] the House of Lords dealt with the aspect of intrusion on informational privacy which arises on the publication by the media of private facts about a celebrity.  Lord Nicholls observed [at para 12]:

“The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so.  But it, too, lies at the heart of liberty in a modern state.  A proper degree of privacy is essential for the well-being and development of an individual.”

[125] In New Zealand two Judges of the Court of Appeal have recognised that there is a physical aspect of privacy, although refraining from deciding whether it should be protected by the tort of privacy. [Hosking v Runting [2005] 1 NZLR 1, para 118]

[126] The Supreme Court of the United States has given strong recognition to the importance of what Brennan J has described as “the right of an individual ‘to be let alone’ in the privacy of the home”.  In delivering the majority opinion of the Court in Carey v Brown [447 US 455 (1980)], Brennan J said [at p 471] that:

“  Preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.”

He later added:

“The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.”

[127] In Frisby v Schultz [487 US 474 (1988)] O’Connor J, in delivering the Court’s majority opinion, affirmed what the majority of the Supreme Court had said in Carey and emphasised that an important aspect of residential privacy was protection of the unwilling listener in her home [(at pp 484-485)]:

“Although in many locations, we expect individuals simply to avoid speech they do not want to hear … the home is different.  ‘That we are often “captives” outside the sanctuary of the home and subject to objectionable speech … does not mean we must be captives everywhere.’ ... Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions.  Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom.”

[128]Despite the presumptive approach which gives strong protection to the right to free speech in the United States, under the First Amendment it is now generally recognised among members of the Supreme Court of the United States that there is a legitimate government interest in residential privacy and in acting to curtail freedom of expression to protect unwilling recipients from having to receive unwanted expression of opinions in their homes.

[129]I am satisfied that New Zealanders regard the right to enjoyment of domestic tranquillity as highly as do citizens of the United States.  It is part of the cultural and social make-up of New Zealanders to be respectful of that environment.  I regard the interest of New Zealand citizens to be free from intrusions into their home environment, whether on account of their conduct as public officials or otherwise, as a value that, in the abstract, is close to being as compelling as freedom of speech.”

47.  For our immediate purpose, the case is important because it illustrates that the right to privacy at one’s home is not only invaded by physical intrusion.  It may be invaded by actions taken outside the physical boundary of the home.  On the facts, the singing took place at the grass verge of the public road outside the constable’s house.  This being the case, the debate over whether the common areas within a private residential development form part of a resident’s “home” in the development loses much of its significance.

48.  In any event, Brooker v Police shows that our present case is an a fortiori one.  In Brooker v Police, like the US cases concerning picketing of residences and dwellings which McGrath J cited, the (alleged) interference with privacy took place outside the boundary of the victim’s house.  In the present case, one is actually concerned with intrusion into private residential property.

49.  Unlike the police constable in Brooker v Police,who occupied her own house, Mr Suen is just one of the many residents in the residential development.  While he no doubt was and still is a high-ranking public official, many if not all of his neighbours who lived in the same development at the time, and who were affected by the intrusion of the petitioners into the development, were not.  Their rights, like the right of Mr Suen, were also at stake.

50.  But even more importantly, for the purposes of the present debate, this argument regarding what constitutes a “home” is quite irrelevant because apart from article 14 of the Hong Kong Bill of Rights, we also have article 29 of the Basic Law which specifically goes beyond “homes”.  Article 29 specifically states that “the homes and other premises of Hong Kong residents shall be inviolable”.  It prohibits “arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises”.

51.  In other words, even if (for the sake of argument only) common areas such as a driveway do not form part of one’s “home” in a multi-ownership situation, they are nonetheless “other premises”, which like one’s “home”, attract the protection of article 29 of the Basic Law.

3.8 Conclusion

52.  I would respectfully borrow the words of the European Court of Human Rights in Appleby, supra, at para 47, to conclude this part of my judgment.   In my view, in Hong Kong, notwithstanding the acknowledged importance of the right of peaceful assembly and the right to freedom of expression, neither the provisions in the Basic Law nor those in the Hong Kong Bill of Rights bestow any freedom of forum for the exercise of those rights.  None of the relevant provisions require the automatic creation of rights of entry to private residential property. 

53.  In other words, the right of peaceful assembly and the right to freedom of expression stop, so far as physical or geographical limits are concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter.  (This is said, it should be noted, without prejudice to any possible argument that in situations such as that found in Brooker v Police, even activities carried out outside the physical boundary, but within the immediate proximity, of private residential premises could, depending on the facts, amount to an unlawful interference with the constitutional right to privacy at home of the owner or occupier of the premises.) 

54.  In the present type of situation, there is no question of the restriction on the relevant rights not being prescribed by law or being uncertain.  The restriction is well defined by property law as well as the law of trespass.

55.  In my view, the Magistrate has, with admirable clarity, come to the right legal conclusion in this regard.

4    Implied permission for the petitioners to enter or remain? – ground 1(g) & (h)

56.  However, as Nowak, op cit, at p 494, points out, article 21 of the ICCPR protects assemblies on private property or in private buildings to the same extent as on public streets, square or in public assembly rooms; however, the prior approval of the owner is necessary for all property and buildings not freely accessible to the public.  This raises the question of whether the petitioners in our case had the permission of the owners, residents or management of Shuk Yuen Building to enter or remain in the residential development to present the petition to Mr Suen or to stage any demonstration.  This is essentially a question of fact.  In relation to it, the Magistrate made clear findings that the petitioners were all trespassers to the development.  He gave the following reasons for his findings:

“19.   It is a fact undisputed in the present case that the demonstrators and petitioners in question were only able to assemble, display banners and chant slogans outside the metal gate of Shuk Yuen Building at the beginning since the metal gate was all the time closed.  The metal gate was opened as a resident’s vehicle returned to the housing estate.  The crowd took the opportunity and entered the estate.  I have already stated clearly in the reasons for decision of the application of the defence for no case to answer that the authorization of the owners, residents or housekeepers concerned must be obtained before any outsiders can enter a private housing estate to hold certain activities.  However, it is obvious that the demonstrators and petitioners in question did not even have the authorization to enter Shuk Yuen Building, even less the authorization to assemble and demonstrate in the housing estate.  The reasoning is simple enough.

20.    The caretaker (DW1 Mr Chan Yuk-cheong (陳旭昌)) who was on duty at the estate in question at the material time clearly stated under cross-examination by Mr Pun that he did not anticipate the demonstrators and petitioners outside the metal gate would take the opportunity of the opening of the gate to enter the estate.  However, he was helpless and at his wits’ end as the crowd had already entered.  Under cross-examination by the prosecution, Mr Chan stated that he did not want to open the gate at the beginning.  But the police asked him to open the gate to let the vehicle drive in.  He also stated that as police were already there, his mind was at ease to let the police deal with the situation then.  He would have called the police for assistance if there had been no police.  During the examination-in-chief, Mr Chan said that he had told “Long Hair” (i.e. the 4^th defendant) that they could not enter as the said place was a private place.  However, “Long Hair” asked him not to concern himself in his own salary only, but also in the interest of the people at large.  After this conversation, Mr Chan felt that he was helpless and went back to the caretaker booth and stationed there.  During cross-examination by the prosecution, Mr Chan explained that apart from “Long Hair”, he did not know any of the demonstrators or petitioners at the scene.  He requested “Long Hair” to leave because he appeared to be the leader and he hoped that “Long Hair” would lead the others away.  Obviously, Mr Chan, the caretaker, was unwilling to let the crowd enter the housing estate and had expressed his wish to the 4^th defendant.

21.    As to the 4^th defendant, the disc, exhibit D1, recorded that he had said the following to the crowd through the loudhailer before 12:50:

(i)    The Incorporated Owners said that we were noisy!

(ii)   The lady just now said that we caused obstruction here.

Besides, the video tape, exhibit P1, also recorded that the 4^th defendant said the following to the crowd through the loudhailer:

12:46 The police talked to the caretaker ... what did the caretaker say, he told us to leave and ... He’s just a caretaker.  We need not care what the caretaker said! ... The caretaker called the police, called once more[3].

I firmly believe that through the open speaking of the 4^th defendant, there was no reason for the demonstrators and petitioners present at the scene not knowing that at the least, the incorporated owners of the estate and a female resident were resentful of their demonstration and petition activities within the area of Shuk Yuen Building.  And Mr Chan, the caretaker, had also requested them to leave.  In fact, the crowd themselves knew it most clearly that by what means they had entered the estate.

22.    Based on the reasons given above, I rule that all the demonstrators and petitioners in question (including the six defendants) were trespassers.  I also firmly believe that the demonstrators and petitioners in question clearly knew that they took advantage of the gap between the opening and closing of the gate and seized the opportunity to enter the estate.  Their entry in fact had not been authorized.  Furthermore, the crowd certainly had not been authorized to hold the activities of demonstration and petition in the estate. …” (Court translation)

57.  At the hearing of the appeal, the Court was referred to various parts of the transcript as well as the video and DVD recordings, with a view to challenging or upholding the Magistrate’s findings of fact.  Having considered the evidence, I am of the view that there was sufficient evidence to enable the Magistrate to come to his findings.  I see no justification for interfering with the findings. 

58.  Before I leave this topic, I should mention an argument raised by the defendants which has a bearing on the present question as well as the point that the Magistrate has wrongly refused their applications to call Mr Suen to testify at the trial.  The defendants argue that there is no evidence regarding Mr Suen’s attitude towards the petitioners.  There is a lurking possibility or doubt that he was willing to meet the petitioners and allow them in.  The prosecution has simply failed to prove that Mr Suen did not consent to the petitioners’ entering the development to make a petition to him.  On that basis, the finding of trespass should be disturbed.  Alternatively, the defendants argue, Mr Suen may have been unaware of the presence of the petitioners and one could not say that he would definitely have refused to meet the petitioners within the development.  The possibilities are endless, the defendants submit.  The defendants also point out that a Sergeant Sze testified at trial that he had met with Mr Suen on the morning of the day in question and had been told by Mr Suen that he did not want to meet the petitioners.  However, his evidence was contradicted by the CCTV recording at the entrance to Mr Suen’s block and even the prosecution asked the Magistrate not to believe Sergeant Sze’s evidence. 

59.  The defendants’ argument must be rejected.  If Mr Suen was unaware of the presence of the petitioners, there could be no question of his giving any permission for the petitioners to enter the development.  As for the possibility that he had actually given permission for the petitionersto enter and to meet him within the development, I believe this is a fanciful possibility that flies in the face of the entire evidence.  In fact, the Magistrate made the same point in his reasons given for refusing one of the applications by the defendants to call Mr Suen.  The reality is that the caretaker had been informed by the police at around 10 am of the expected arrival of the petitioners.  According to the caretaker, he told the chauffeur of Mr Suen accordingly.  The petitioners arrived at the development entrance at 11:40 am.  They entered the main gates at 12:05 pm and the charging of the police cordon took place at 12:51 pm.  After breaking through the police cordon, the petitioners stayed at the ground floor entrance to Blocks C and D until 1:25 pm when they left, after inserting a petition letter into Mr Suen’s letter box located at the ground floor of the building.  Throughout, Mr Suen did not meet with the petitioners either personally or through any representative.  He only left Shuk Yuen Building by car in the afternoon after the petitioners were all gone.

60.  In those circumstances, it is simply unrealistic to suggest that it was Mr Suen’s intention to permit the petitioners to come in and to accept their petition letter either personally or through a representative.

61.  Counsel for the defendants have cited to the Court various cases to illustrate that permission to enter could be implied.  I have no difficulty with the proposition so far as it goes.  But everything depends on the facts, and the cases cited by counsel all turn on their own facts.  For instance, in Faulkner v Willetts [1982] RTR 159, which was heavily relied on by counsel, a constable went to the house of a person, wishing to interview him in connection with a road accident in which a car driven by him had been involved.  The constable identified himself to the person’s wife and informed her of the reason for his visit.  She opened the door fully, walked back into the house, giving the constable the impression that it was an implied invitation to follow her into the house, which he did.  No oral permission was given by the person’s wife for the constable to enter the house, and at no time was an indication, oral or otherwise, given refusing him entry.  Inside the house, the constable identified himself to the person and explained that he wished to interview him.  The person took no steps to request the constable to leave but offered him refreshment.  On those facts, the Court of Appeal took the view that the Magistrates’ Court was quite entitled to come to the conclusion that there was an invitation to enter by conduct, and refused to interfere with the finding.

62.  The case is wholly distinguishable from the present case.  Here, prior to the arrival of the resident’s car, the main gates were closed for the entire 25 minutes since the arrival of the petitioners at the entrance.  The gates were only opened to allow the resident’s car in.  The petitioners seized upon the opportunity to enter the development.  In those circumstances, one could hardly say that there was an invitation to enter by conduct.  The caretaker’s inaction in not stopping the petitioners from entering or in not asking them to leave was, in the circumstances of the case, entirely understandable and could not have misled the petitioners.  For by then, the police had, as the caretaker’s evidence shows, taken over the situation from the caretaker. 

63.  In any event, from the caretaker’s conversation with the 4^th defendant, which the 4^th defendant mentioned to all those who were present, it is plain that no permission was given to the petitioners to enter or remain in the development, let alone to go beyond the police cordon then formed on the private driveway.

64.  In the circumstances, there is no question of the petitioners, in particular, the defendants, being under any mistaken belief that they were permitted by the owners, residents or management to enter the residential development, or put at the lowest, to go beyond the police cordon.

65.  The defendants point out from the evidence that the same concern group had been into Shuk Yuen Building three years ago to “visit” Mr Suen during Chinese New Year.  On that occasion, they were not stopped by anybody and in fact, according to some newspaper reports, a government spokesman was reported as saying that there was no question of those present causing a nuisance to anybody because they were exercising their constitutional rights there.  The defendants argue that they therefore had or thought that they had the implied permission to enter the development again.

66.  I reject the argument.  On the facts, and particularly, on the evidence of the caretaker, it is plain that no permission, express or implied, was given by anybody for the petitioners to enter the development on this occasion.  The previous occasion was so far removed from the present one that it had no relevance at all.  The caretaker had not even been employed to work at the development then.

5    Were the police officers trespassers and were they executing their duty inside the development – ground 1(f)?

67.  I now consider the position of the police officers who formed a human chain to prevent the petitioners from going further down the driveway to approach the building where Mr Suen resided. 

68.  The petitioners, as mentioned, eventually charged the cordon[4].  According to the Magistrate, by doing so, they turned their assembly into an unlawful one for the purposes of section 18 of the Public Order Ordinance, and the six defendants were therefore charged with and convicted of taking part in an unlawful assembly. 

69.  It is the contention of the defendants that not only were they not trespassers at the time, but the police officers were themselves trespassers at the scene.  They were not acting in the execution of their duty when they tried to prevent the petitioners from moving forward.

70.  I have already come to the conclusion that the Magistrate was right in finding that the petitioners were trespassers.  I reject the defendants’ argument that the police officers were trespassers.  Judging from the evidence available, and in particular the evidence of the caretaker, the police officers were obviously at the scene (within the residential development) with the permission of the caretaker.  In this regard, as mentioned, permission need not be oral, and can be implied from conduct.  On the evidence of the caretaker, it is plain that the police officers were permitted impliedly by the caretaker to enter the residential development in order to control the petitioners.

71.  The defendants argue that even if the police officers were not trespassers, they had no business to be inside the private premises of citizens.  In those circumstances, they were not acting in the execution of their duty when they formed the cordon and prevented the petitioners from moving down the driveway.  The defendants refer to section 10 of the Police Force Ordinance (Cap 232) which sets out the duties of the police force, and argue that the police officers’ action on private land on the day in question did not fall within any of the provisions set out in the section.  The defendants remind the Court that unlike the present position in the United Kingdom (see the Criminal Justice and Public Order Act 1994), in Hong Kong trespassing is not a crime but remains a civil wrong only, in relation to which the police, the defendants argue, has no role to play. 

72.  I reject the argument.  First, as Ms Anna Lai for the prosecution correctly pointed out, a police officer’s duty is to be a keeper of the peace and to take all necessary steps with that in view.  If invited by the landowner, the police can enter private premises to keep the peace, prevent crime or protect property from criminal injury.  Coffin v Smith (1980) 71 Cr App R 221; Lewis v Prosser, unreported, Queen’s Bench Divisional Court (Watkins LJ & Nolan J), CO/1150/83, 30 October 1984; Lamb v Director of Public Prosecutions (1990) 154 JP 381.  In particular, depending on the facts, even though whilst at the premises the police officers were satisfied that there was no breach or suspected breach of the peace, and that there was nothing in the suspected troublemakers’ conduct which gave cause for concern, the police officers could stay behind at the premises and take all necessary steps to ensure that the suspected troublemakers peacefully left the premises (Lewis v Prosser).

73.  On the facts of the present case, the police officers were entitled to take the view that there could be a breach of the peace by the petitioners after their entry into the private property in the manner they did.  There was evidence (PW3) to the effect that the police was apprehensive of the situation turning volatile, particularly if Mr Suen were to refuse to see the petitioners, and it was mindful of the safety of the people there, including elderly people and children. 

74.  Moreover, just like the positive duty of the government (including the police) to take reasonable and appropriate measures to enable lawful demonstration to take place peacefully (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229), articles 6, 29 and 105 of the Basic Law and article 14 of the Hong Kong Bill of Rights would, in my view, require the government (including the police) to take reasonable and appropriate measures to protect Hong Kong residents’ homes and other premises against intrusion and their privacy at home against interference, provided that the measures, if they are to be taken within private premises, must be taken with the permission of their owner or occupier.  It would be a very strange result if all the police is entitled to do is to prevent demonstrators from entering private premises whilst they are still in a public place; but once the demonstrators have managed to intrude into private premises without the consent of their owner, the police can do nothing to restrain the demonstrators even though it is permitted to enter or is indeed asked to enter to repel or restrain the unwelcome demonstrators.

75.  For those reasons, I am clearly of the view that the police officers were executing their duty when they formed the human chain to prevent the petitioners from moving down the driveway.  In those circumstances, when the defendants used force to charge the police cordon, they plainly behaved in a disorderly manner likely to cause any person reasonably to fear that they would commit a breach of the peace.  Indeed, their action amounted to a breach of the peace – see the definition of the term in R v Howell (Errol) [1982] QB 416, 427E-F, quoted with approval by the House of Lords in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105, para 27:

“We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.  It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.”

6    Positive duty and wrongful interference – ground 1(b) & (i)

76.  Then it is said by the defendants that the police officers were acting in breach of their positive duty to take reasonable and appropriate measures to enable their lawful assembly to take place.  Rather, the police officers were guilty of unlawfully interfering with their assembly and demonstration.  It is argued that the police failed to contact on behalf of the petitioners Mr Suen to see whether he would receive the petitioners.  Rather, the police wrongfully interfered with their assembly by misleading the petitioners regarding the true attitude of Mr Suen.  In particular, they rely on what the police officers told them at the scene (namely, that the police was contacting Mr Suen for his response) and the contradictory evidence given by Sergeant Sze in Court that in fact he had been told by Mr Suen earlier on that he would not be meeting the petitioners.

77.  Indeed the defendants argue that the police had no justification at all to form the cordon on the driveway as there was no reasonable apprehension of an imminent breach of the peace: see Laporte, supra.  The police was simply not justified to interfere with the petitioners’ exercise of their right of assembly and right to freedom of expression.

78.  In my view, these arguments fall by the wayside once it is concluded, as the Court has concluded, that the petitioners had no right to hold any assembly within the private residential development in the absence of permission.  It must be remembered that the positive duty on the part of the government and police that the Court of Final Appeal spoke about in Leung Kwok Hung is a positive duty “to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully” (my emphasis) (para 22).  As the petitioners had no right to assemble within the private residential development without the necessary permission, there is no question of the police owing to them any positive duty to assist them to hold the assembly.  Nor is there any question of the police interfering with the petitioners’ right to assembly, which was not exercisable within the private residential development in the absence of the necessary permission.

7    Actus rea and mens rea – ground 3

79.  Both Mr Poon and Miss Leung argue that there was insufficient evidence to prove that their clients voluntarily took part in charging the police cordon.  They said that on the video evidence in particular, there were doubts as to whether their clients were simply pushed by others against the police line.  Similar arguments are raised regarding their mens rea.

80.  Having watched the police video tape (exhibit P1), I have no doubt that the Magistrate has made the correct findings against the defendants.  I regard the suggestion that they were merely pushed forward by others involuntarily against the police line as wholly fanciful.  It is plain from the circumstances that they were voluntary participants in charging the police cordon.  What action or method they actually used to break through the cordon does not matter at all.  Whether they used their arms and hands, the front parts of their bodies or their backs to push against the police line is neither here nor there.  Nor would it make any difference if they were merely standing passively there in front of the police line, relying on others in the same group to push them against the line.  The crucial question is whether they were behaving in a “disorderly manner” which would likely to cause any person reasonably to fear that they would commit a breach of the peace.  I have already alluded to the definition of a breach of the peace.  In fact, several policemen were injured in the whole incident.

81.  The actions of the various defendants can be seen from the police video tape, even when viewed at normal speed.  I need not deal with the criticism made against the Magistrate that he has on his own watched the video tape in slow motion in order to identify the defendants and determine what they were doing at the time when the police cordon was charged.

82.  As regards the defendants’ mens rea, I cannot do better than quote from the statement of findings:

“In my view, the crowd who had taken part in the rush on the police line at the material time had the intention to take part in the said “unlawful assembly” and to conduct themselves in a disorderly manner.  Even though there were no comparatively clearer video recordings to show that the 3^rd and 6^th defendants had on their own initiative pushed and bumped against the police officers forming the line of defence, they had not taken any definite action to pull themselves out of the crowd either (like the old people and children sitting on one side).  Therefore, the only reasonable inference is that they also had the intention to take part in conducting themselves in a disorderly manner (ie breaking through the police line).  In fact, every one who had taken part in the said “unlawful assembly” had the chance to pull oneself definitely out of the crowd, who were confronting the police, before the crowd’s rush on the police line.  If he/she had not done so, his/her choice testified fair and square to his/her intention.”

83.  Charging a police cordon lawfully formed to prevent people from moving beyond it is disorderly conduct.

8    “Self-help” – ground 2

84.  It is suggested that when charging the police cordon the defendants only used reasonable force.  In this regard, Miss Leung relies on McBean v Parker (1983) 147 JP 205, 207-208.  This “self-help” argument would only be relevant if the defendants were then lawfully exercising their right of assembly and the right to freedom of expression, and the police cordon was an unlawful interference with their exercise of those rights.  However, as explained, this was not the case, and the argument of self-help simply has no place in this case.

9    Refusals to summons Mr Suen – ground 4

85.  Finally, the Magistrate is criticised for refusing the defendants’ repeated applications to summons Mr Suen to give evidence at the trial.  I accept Ms Lai’s argument that a magistrate may refuse to issue a witness summons unless he is satisfied that the evidence which the intended witness is apparently able to give is material to the issues in question and can be said to tend to support the case of the party seeking to call the witness: R v Marylebone Magistrates’ Court, ex parte Gatting and Emburey (1990) 154 JP 549; R v Baines [1909] 1 KB 258.

86.  It is suggested that Mr Suen’s evidence would have been relevant to whether he had actually permitted the petitioners to enter the development and whether he had been prepared to meet them personally or by representative; whether he had told the police that he was not going to see the petitioners (as per Sergeant Sze’s evidence); whether the police had otherwise contacted him for his response towards the petitioners’ requests; and various miscellaneous matters.

87.  As discussed above, on the evidence of the present case, it is a fanciful possibility that Mr Suen was prepared to allow the petitioners in so that he could meet them either personally or through a representative.  Coupled with the finding that the petitioners were actually trespassers and had no right to assemble within the residential development, the other matters on which Mr Suen is said to have been able to give material evidence were simply irrelevant to the issues that the Magistrate had to decide, for the reasons set out above.

88.  In the circumstances, the complaint against the Magistrate’s refusals to issue a witness summons to Mr Suen is wholly misplaced.

10  Outcome

89.  For all these reasons, the appeals are dismissed.

[1]  After the hearing of the appeals, the Court drew the parties’ attention to Pruneyard and Golden Gateway Center and invited them to make further submissions on the two cases.

[2]  This is an example mentioned by the 4^th defendant in argument.  The Court should not be taken as implying that the relevant law is necessarily different when such commercial premises are involved.

[3]  This is a possible translation.  However, the words were “…管理員報警，再報多次”, which should, in the context, be understood to mean “The caretaker has called the police.  Call once more!”

[4]  This was the so-called “second cordon”.  There had been a “first cordon”.  Nothing of significance turns on this difference.