"T" v. COMMISSIONER OF POLICE

CACV 244/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2012

(ON APPEAL FROM HCAL 102/2011)

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

1.  At the conclusion of the hearing of this appeal, we gave leave to the applicant to amend the Notice of Appeal and the Amended Originating Summons to include an alternative item of declaratory relief, allowed his appeal, set aside the judgment and order of Lam J (as Lam VP then was) dated 16 July 2012, and in substitution therefor, granted the applicant a declaration on terms to be set out in the reasons for the court’s judgment which we said we would give in due course. We now give our reasons.

The facts

2.  This litigation arose out of the 7^th International Day Against Homophobia Demonstration held in the afternoon of 15 May 2011 in a pedestrian precinct on the portion of Lockhart Road, between East Point Road and Cannon Street, Causeway Bay.  The pedestrian precinct in question is designated by the authorities as a pedestrian street on Saturdays, Sundays and public holidays, and 15 May 2011 was a Sunday.  The purpose of the demonstration, according to the organisers, was to raise public awareness of anti‑discrimination, equal opportunities and anti‑homophobia issues, and to provide a focus point for the “LGBTI” (lesbian, gay, bisexual, transgender and intersex) community to express their views and to discuss and share their experiences.  It is common ground that the demonstration amounted to a public meeting within the meaning of the Public Order Ordinance (Cap 245) (“POO”), and notification of the meeting had to be given to the Commissioner of Police in accordance with that Ordinance.  Such notification was indeed given and in accordance with the provisions of the POO, the Commissioner issued a “notice of no objection” to the organisers, informing the latter that the Commissioner had no objection to the holding of the demonstration in the pedestrian precinct.  Compliance with the POO is therefore not in issue.  For the purposes of the demonstration, a temporary stage of modest size was constructed on one part of the pedestrian precinct.

3.  However, the programme of the demonstration included, amongst speeches by various people in support of the causes of the organisers, an “expression” entitled “Artistic and Dancing Expression” by a group of volunteers.  It began with a recital and chanting of slogans, followed by a dance whereby the volunteers danced to some pre‑recorded music and songs.  This part of the programme was scheduled to last for 20 minutes, and the volunteers performed on the temporary stage as well as the open space in front of the stage.  In this judgment, I will, for the sake of convenience, simply refer to the “expression” as “the dance” or “dance performance”.

4.  It is plain from the materials before the court, including the video clips that we have watched, that the portion of the pedestrian precinct in question was not in any way enclosed or cordoned off for the purposes of the demonstration, or, for that matter, the dance performance just described.

5.  The demonstration, according to the evidence, drew about 150 to 200 participants, and the applicant was one of them.  As the video clips also show, at least during the dance performance, the demonstration also attracted a small crowd of passers‑by who slowed down or stopped to watch the dance for different durations.

6.  The question thus arose as to whether the dance performance amounted to “public entertainment”, and the portion of the pedestrian precinct in question where the dance performance took place, “a place of public entertainment”, thereby triggering the operation of the Places of Public Entertainment Ordinance (Cap 172) (“the Ordinance”), which lays down licensing requirements for “places of public entertainment”.  The police officers present at the demonstration thought that the dance performance fell within the ambit of the Ordinance and, as no relevant licence had ever been obtained under the Ordinance, considered the dance performance unlawful under section 4 of the Ordinance, which makes it a criminal offence for any person to “keep or use any place of public entertainment without a licence” granted under the Ordinance.

7.  The police officers made known their views to the organisers and eventually the dance performance was halted halfway. The parties cannot agree whether the performance was halted by the organisers or was halted by the police, a difference which I will presently return to.

The proceedings below

8.  In any event, seven months after the event, the applicant sought leave out of time to apply for judicial review against the Commissioner of Police, challenging his, or his alleged, decision (through his officers) to halt the dance performance.  He sought an order of certiorari to bring up and quash the Commissioner’s decision.  He sought a declaration that the decision was unlawful because the Commissioner had misinterpreted and wrongly applied the provisions of the Ordinance – according to the applicant, the Ordinance did not apply to the dance performance.  Alternatively, the applicant argued that if the Ordinance did, on its true construction, apply to the dance performance, it was unconstitutional, as being inconsistent with articles 27 and 39 of the Basic Law, and/or articles 16(2) and 17 of the Hong Kong Bill of Rights; and/or articles 19 and 21 of the International Covenant on Civil and Political Rights 1966 (“ICCPR”) – those articles relate to the rights to freedom of expression and freedom of peaceful assembly or demonstration.

9.  The judge gave leave to apply for judicial review against the Commissioner but only on the basis of the reformulated relief sought.  We were told that one of the reasons for the reformulation was the dispute as to whether the dance performance was actually halted by the police (pursuant to the “decision” of the Commissioner – which was therefore the subject matter of the original challenge), or was halted by the organisers after learning of the police’s categorisation of the dance.  In any event, when the matter went before the judge for substantive hearing, the Amended Originating Summons only sought two declarations in the alternative:

(1) a declaration that a place of public entertainment, for the purposes of the Ordinance, does not include an open space area (not being enclosed) where a political demonstration occurs;

(2) (alternatively) a declaration that sections 2 and 4 of the Ordinance to the extent that a place of public entertainment, for the purposes of the Ordinance, does include an open space area (not being enclosed) where a political demonstration occurs, are inconsistent with the various provisions in the Basic Law, the Hong Kong Bill of Rights and the ICCPR mentioned above, and are therefore unconstitutional.

The judgment

10.  In a careful judgment, the judge rejected both contentions and accordingly dismissed the application for judicial review.  Essentially, the judge held, amongst other things, that the dance performance was an “exhibition of dancing”, and therefore fell within the definition of “entertainment” in the Ordinance.  The fact that it had some political overtones or carried a political message was neither here nor there.  The purpose and context of the Ordinance was crowd control and public safety.  The entertainment was “public entertainment” because the public was admitted to the entertainment, since the organisers, through their marshals, exercised sufficient control (in terms of crowd control) over the place where the demonstration took place.  The judge also held that the word “place” should be given its ordinary meaning which includes an open space or a portion of a street which is not enclosed.  Accordingly, one was concerned with “a place of public entertainment”, and the dance performance constituted the use of a place of public entertainment without a licence granted under the Ordinance.  The judge therefore held against the applicant on the first issue which was an issue of construction.

11.  The judge went on to hold against the applicant on the constitutional issue.  He considered that the licensing regime set up under the Ordinance satisfies the proportionality test and therefore constitutes a justifiable restriction on the various freedoms engaged by the demonstration.  In particular, the judge rejected the argument that in light of the parallel regulatory regime under the POO, the licensing regime under the Ordinance was an unnecessary additional fetter on the freedoms in question.  He therefore rejected the alternative challenge to the constitutionality of the provisions in the Ordinance.

The appeal

12.  Dissatisfied with the judge’s decision, the applicant appealed.  After the hearing, we differed from the judge on the construction issue.  We considered that the dance performance did not trigger the operation of the Ordinance.  For reasons we now give, we found it appropriate to make the order and grant the relief indicated at the beginning of this judgment.  In those circumstances, we did not hear counsel on the alternative issue of constitutionality.  It did not arise on the facts of the case and our construction of the Ordinance, and it was therefore not necessary to decide that issue.  Nor is it desirable for us to say anything about it in these reasons, which will only focus on the construction issue.

The relevant definitions

13.  I have already mentioned that section 4(1) of the Ordinance provides that no person shall “keep or use any place of public entertainment without a licence” granted under the Ordinance.  Section 4(2) makes it a criminal offence for any person to contravene subsection (1).  An offender is liable on conviction to a fine of $25,000 (level 4) and imprisonment for 6 months, and to a further fine of $2,000 for every day during which the offence has continued.

14.  The crucial definitions of the relevant elements of the offence are found in section 2 of the Ordinance.  The word “entertainment” includes “any event, activity or other thing” specified in Schedule 1 to the Ordinance which includes, amongst other things (and there are many of them), “stage performance” – which in turn includes “an exhibition of dancing”.  The term “public entertainment” is defined in section 2 as meaning “any entertainment” within the meaning of the Ordinance “to which the general public is admitted with or without payment”.  Section 2 then gives the following definition for “place of public entertainment”:

“place of public entertainment" (公眾娛樂場所) means-

(a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b) any vessel,

in or on which a public entertainment is presented or carried on whether on one occasion or more;”

15.  As mentioned, it was argued below that the dance performance was not an entertainment within the meaning of the Ordinance, because the “sole or dominant purpose” of the dance was for the purpose of the demonstration, which was of a political nature.  The judge rejected the argument.  This contention was not seriously pursued by Mr McCoy SC (leading Mr Hectar Pun and Mr Albert Wong) for the applicant in this appeal.  In any event, I have no doubt that the judge was right in rejecting this purported distinction.  Having watched the video clips of the dance, I have no doubt that the performance was “an exhibition of dancing” and qualified as an entertainment within the meaning of the Ordinance.  I also share the judge’s view that the “political nature” of the dance is irrelevant here, particularly in light of the purpose and context of the Ordinance which I will turn to shortly.

A construction issue

16.  The crux of the debate therefore turns on whether the dance performance was a “public entertainment”, so that the place at which the dance was performed constituted a place of public entertainment, thereby triggering the licensing requirements under the Ordinance.

17.  This is a construction issue.

18.  In HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, a criminal appeal involving the proper construction of the provisions in section 18D of the Theft Ordinance (Cap 210), Li CJ (with whose judgment the other members of the court agreed) reiterated the modern approach to the interpretation of statutes in paragraphs 11 to 14 of the judgment.  The Chief Justice explained that in interpreting a statute, the court’s task is to ascertain the intention of the legislature “as expressed in the language of the statute” (para 11).  He went on to say (para 12):

“The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at p.606E, Sir Anthony Mason NPJ stated :

The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.

See also Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at p.154 B-C.  As the Court pointed out in Town Planning Board v Society for the Protection of the Harbour Limited (2004) 7 HKCFAR 1 at p.14 A-C, the mischief rule is an early example of the purposive approach.  And the purposive approach (including the mischief rule) has been reflected in Hong Kong in s.19 of the Interpretation and General Clauses Ordinance (Cap.1).”

19.  In paragraph 13, the Chief Justice explained that the context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. In the next paragraph, the Chief Justice elaborated that the purpose of a statutory provision may be evident from the provision itself.  It may also be ascertained from the Explanatory Memorandum to the bill; similarly, “a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may also be used to this end”.

20.  It should be noted that in Lam Kwong Wai, which was quoted by the Chief Justice in Cheung Kwun Yin in paragraph 12 (extracted above), Sir Anthony Mason NPJ said (para 63) :

“Nevertheless it is generally accepted that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing (R v A (No.2) [2002] 1 AC 45 at pp.67G-68H, per Lord Steyn). A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.”

21.  This is of particular importance in a case concerning the construction of a statutory provision creating criminal liability.  Considerations of certainty and fairness entitle the court, in ascertaining and giving effect to the true intention of the legislature, to presume that the legislature intends that law should be certain, and therefore predictable, and that a person should not be penalised except under clear law; and to construe the provision in question accordingly.  See Bennion on Statutory Interpretation (5^th ed), 799‑807 and 825‑831.

The relevant context and purpose

22.  In the present case, there is a wealth of materials, both internal and external, to shed light on the context and purpose of the relevant provisions in the Ordinance.  In his judgment, the judge traced the origin of the Ordinance and the relevant provisions to the Theatres Regulation Ordinance 1908.  He examined the various amendments made to the law thereafter.  He also examined the parallel regime of control under the POO.  It is quite unnecessary for me to go through the same exercise.  There can be little doubt that the purpose of the Ordinance and the licensing regulations made under it is to provide a means of effectively ensuring public safety and order, and to protect the participants to entertainment from the hazard and dangers associated with the gathering of crowds at places of public entertainment.  This primary concern of public safety and order underlying the licensing regime is, for instance, reflected in the various requirements under the Ordinance and its subsidiary legislation in relation to fire safety, mechanical and electrical installations, sanitary fitments, ventilation, structural safety of stages, erections and buildings etc, with which the organiser is required to comply in order to obtain a licence under the Ordinance for holding the relevant event.

23.  It should be noted that the current definition of “public entertainment” has remained unchanged since 1919 when the Places of Public Entertainment Regulation Ordinance 1919 was enacted to consolidate and amend the law relating to places of public entertainment. Section 2 of the 1919 Ordinance gave “public entertainment” a definition which has since remained up to the present.  On the other hand, “place of public entertainment” was only introduced into the equation by the Places of Public Entertainment Regulation (Amendment) Ordinance 1951.  When it was first introduced, it was defined in section 2 of the 1951 Ordinance to mean “any place on which there is any erection or structure, any premises or building whether temporary or permanent or any water‑borne craft or other place in or at which a public entertainment takes place whether on one occasion or more”.

24.  When the Ordinance was amended by the Places of Public Entertainment (Amendment) Ordinance 1970, the definition of “place of public entertainment” was narrowed down.  According to the speech made by the Attorney General to the Legislative Council when moving the amendments, it was considered that the definition of “place of public entertainment” was unnecessarily wide in including a place on which there was no structure capable of accommodating the public, for example, a field which was set aside for a gymkhana.  The Attorney General explained that the object of the law was actually “to apply appropriate safety standards to buildings and structures used by members of the public attending public entertainments”.  Accordingly, under the 1970 amendments, the term was circumscribed to mean “any place on which there is any building, erection or structure, whether temporary or permanent, capable of accommodating the public; and any vessel, in or on which a public entertainment is presented or carried on whether on one occasion or more”.

25.  That definition, however, was again amended in 1980, as a result of which, it meant what it now means under section 2 of the Ordinance.  A review of the speeches made in the Legislative Council on that occasion reveals that “the aim” of the amendments was to dispel any doubts as to the powers of the Governor in Council to make regulations to provide for the location of places of public entertainment within buildings which were used also for other purposes and to lay down appropriate conditions; and the context for that was that by then, there was felt a need to cater for small 500 to 2,000 seats cinemas above ground level in mutli‑storey buildings which were otherwise used for purposes unconnected with entertainment.

26.  Mr McCoy was prepared to accept, correctly in my view, that notwithstanding the legislative background, an open space area is capable of being a place of public entertainment under some circumstances.  But he argued that those circumstances do not include those described in the declarations the applicant sought in this case, that is, where the open space area is not enclosed and where the “entertainment” in question is actually a “political demonstration”.

27.  It is against this backdrop, and in the light of the context and purpose already described, that one must approach the language used in the Ordinance, to resolve the construction issue.

Admission and control

28.  As mentioned, “public entertainment” is defined as “any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment” (emphasis added). In the present case, the crux of the arguments turns on the reference in the definition to the general public being “admitted, with or without payment” to the entertainment in question.  In my view, this implies, or at least suggests, that the organiser or performer of the entertainment has, or is entitled to exercise, a certain degree of control as a matter of law; or exerts, or purports to exert, a certain degree of control as a matter of fact, over the place in which the entertainment is presented or carried on, so as to enable him to admit, or as the case may be, exclude members of the public from the entertainment.

29.  It is noted that the definition refers to admitting the general public to the entertainment, rather than to the place of entertainment.  Elsewhere in the Ordinance and the subsidiary regulations, there are references to admitting people to the place of entertainment.  Thus, for instance, section 6(1) refers to the sale of tickets authorising admission to “any place of public entertainment”.

30.  In my view, it does not make any difference.  Admission to an entertainment connotes the idea of admission to the locality where the entertainment takes place.

31.  The Chinese definition of “public entertainment” (公眾娛樂) actually says that it means “指本條例所指的讓公眾入場的任何娛樂，而不論是否收取入場費”. The Chinese term “入場” used here to connote the “admission” of the general public clearly carries with it a sense of locality, in that the general public is admitted to a place where the entertainment is presented or carried on.

32.  Indeed, this was the view of the High Court of Australia in Scott v Cawsey (1907) 5 CLR 132, concerning the prohibition of public entertainment on Sunday under the Sunday Observance Act, which applied to Australia at the time.  Griffiths CJ explained at pages 137 to 138:

“The Act [21] Geo.III c.49, provides (sec.1) that ‘any house, room, or other place, which shall be opened or used for public entertainment or amusement, or for publicly debating on any subject whatsoever’ on Sunday, ‘and to which persons shall be admitted by the payment of money, or by tickets sold for money, shall be deemed a disorderly house or place’; and that the keeper shall be liable to a penalty of £200 a day for every day that the house, room, or place is so opened or used, to be recovered by any person suing for it, and be otherwise punishable as the law directs in cases of disorderly houses. The third section of the same Act imposes a penalty of £50 for advertising any public entertainment or amusement or public meeting for debating on any subject whatsoever on Sunday ‘to which persons are to be admitted by the payment of money, or by tickets sold for money.’ In this section the admission spoken of is to the entertainment or amusement or meeting, whereas in the first section the admission spoken of is to the house, room, or place. The term ‘admission’, however, involves the idea of locality, and of the ability of the person who permits the admission to exclude others from the place of entertainment or amusement except with his consent.” (emphasis added)

33.  In this passage, the Chief Justice not only made the same point that the term “admission” involves the idea of locality, but also the even more important point that “admission” involves “the ability of the person who permits the admission to exclude others from the place of entertainment or amusement except with his consent”.

34.  With respect, I agree.  The situation can be contrasted with an entertainment carried on in a public street where access of the public to the portion of the street in question is not restricted by the relevant authorities, and the portion of the street is not otherwise enclosed or cordoned off by the organiser or performer.  In those circumstances, it would be a very strange use of the language to say that members of the general public who, by definition, are entitled to have access to any part of the public street, are “admitted” to the entertainment, or, for that matter, the place of entertainment.  As said, the very idea of admitting involves the possibility of rejecting admission or excluding people from the entertainment.  In the case of a public street, no member of the general public can be said to be “admitted” or denied admission to an entertainment carried on there, or, to the place of entertainment in question, absent any authorisation by the Government to the organiser or performer to so control admission, or absent any unilateral attempt by the latter to do so by enclosing or condoning off the part of the street in question.

35.  In other words, the very idea of the general public being admitted to an entertainment, or the place of entertainment, involves the ability on the part of the organiser or performer of the entertainment to control admission by admitting or excluding people, whether on terms (such as the sale of tickets) or unconditionally.  That ability may be a legal one, such as a licence granted by the Government to so use the place together with the express or implied authority to admit or exclude people from that place.  That ability may, conceivably, also be derived from a de facto exertion of control over admission.  For instance, an organiser or performer may, without having obtained any necessary authority from the Government to do so, enclose or cordon off an area in a public street, within which the entertainment is presented or carried on, and exert or purport to exert the right to control admission to the enclosed or cordoned off area.

36.  Either way, it is crucial, in order to satisfy the definition of the general public being admitted to the entertainment in question, for the organiser or performer to have that ability to control admission.

Control and fulfilment of licensing conditions

37.  This interpretation makes good sense in the light of the context and purpose of the legislation.  As mentioned, the undisputed purpose of the legislation and the licensing regime that it sets up is to deal with crowd control and general safety.  It therefore makes sense to require an organiser or performer, who has sufficient control over the place of entertainment as to enable him or her to control admission, to satisfy various licensing requirements designed to ensure adequate crowd control and general safety.  Contrast that with an organiser or performer who does not have that degree of control over the place of entertainment, so much so that he or she is not even in a position to control admission.  In that sort of situation, it would serve little purpose to require such a person to obtain a licence and fulfil licensing requirements which are geared towards crowd control and general safety when, by definition, that person simply does not have control over the place of entertainment, or put another way, the power to control the place of entertainment lies with someone else – in the case of a public street, the Government.

38.  This, in my view, answers the point made repeatedly in the submissions (and indeed in the judgment below) that in terms of the need for crowd control and general safety, there is simply no difference between a case where the organiser or performer has the ability to control admission in the sense described above, and one where he or she does not have such ability.  The need for crowd control and general safety, it is argued, remains the same in both cases, and thus the need for the licensing requirements and the good sense of construing the provisions accordingly to cover both cases without distinction.

39.  Of course, one must approach crowd control and general safety from the point of view of the public attending the entertainment, as a matter of purposive construction.  But that is not the only relevant perspective.  One must also consider matters from the point of view of a licensee.  After all, the Ordinance and regulations impose licensing requirements.  Granted that these requirements are designed for crowd control and general safety, they are only as good as the licensee’s ability to comply with them.  They are premised on the licensee’s ability to control the place of entertainment and access to it.  These requirements lose their meaning if the organiser or performer does not even have the ability to control admission.  Thus, for instance, a licensing requirement stipulating the maximum number of the audience at an entertainment, which is no doubt an important requirement in terms of crowd control and general safety, simply cannot work if the organiser or performer has no ability to control admission.  Likewise, a licensing requirement regarding seating arrangements within the place of entertainment is quite meaningless if the organiser or performer has no ability to admit or exclude people from the entertainment, still less to tell those who are present where to sit and where not to.  To give one further example, a typical licensing requirement regarding sanitary fitments would serve little purpose if the organiser or performer cannot decide how large an audience may be admitted to the entertainment.

A public street as a place of entertainment

40.  In reality, where a public street is involved, unless the place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.  And as Mr McCoy pointed out, regulation 170B of the Places of Public Entertainment Regulations (Cap 172A) actually requires that the licence granted under the regulations shall be exhibited by the licensee and kept exhibited at all times “in a conspicuous position at the entrance or, if there is more than one entrance, the main entrance of the premises to which the licence relates”.  This regulation is simply not capable of compliance where the place of entertainment in a public street is not, in one way or another, enclosed or cordoned off, and there is therefore no “entrance” to talk of.  But then, it has to be remembered, in the case of a public street, unless the organiser or performer has obtained the agreement or authorisation from the Government, he or she simply has no right to enclose or otherwise cordon off any portion of the street in question as a place of public entertainment, and will most unlikely do so in those circumstances.  Regulation 170B, like so many other provisions in the Ordinance and the regulations, plainly proceeds on the assumption that there will be an entrance or entrances to the place of public entertainment.  And that makes sense, when viewed in light of the concept of the general public being “admitted” (or, as the case may be, not being admitted) to the entertainment (or the place of entertainment).

41.  That absent a special arrangement with the Government, a public street is inherently inapt to be a place of public entertainment (as defined under the Ordinance) is illustrated by the English case of R v Bow Street Magistrates’ Court ex p McDonald (1996) Times Law Reports, March 27, 1996, involving a busker playing his guitar in Leicester Square.  In that case, the provisions of the London Government Act 1963 as amended provided for the licensing of premises used for public entertainment.  Dyson J (as he then was) (Lexis transcript CO/2683/93, 14 December 1994) found that the busker was caught by the licensing requirements.  The judge took the view that the use of premises may or may not carry with it the right of control of the premises.  The word “use” is an ordinary English word and it is different from “control upon”.  The judge took the view that whenever the busker played his guitar in Leicester Square (usually at the same spot), he was using the square even though he had no control of it.  And by doing so, he was using a place, thus triggering the licensing requirements under the Act.  On appeal, the decision was reversed.  The Court of Appeal pointed out that the 1963 Act was clearly not framed with buskers in mind.  It was not designed to deal with situations going on in a street to which every music maker or other members of the public had access.  One music maker, the court pointed out, could replace another at an attractive spot and the legislation did not envisage situations in which several persons were licensed during one day to operate in one place.  The court also observed that the busker was playing his guitar in a public place to which the public had access and over which the Westminster City Council had innumerable powers.  That was not a situation for which the legislation was designed, or which should be interpreted, to cover.  The wholly artificial way in which the Council tried to use its powers to secure a warrant from a magistrates’ court empowering its officers to enter a place in its own ownership, and to enter which it had no need of any warrant, made the point.

42.  It is noteworthy that like the English Act, section 11 of the Ordinance also provides for the obtaining of an order in prescribed form from a magistrate to prohibit the keeping or using of an unlicensed place of public entertainment or one which has been used in breach of licensing requirements.  It should also be noted, as Mr McCoy pointed out in submissions, that in McDonald, the relevant provisions did not even refer to the general public being admitted to the public entertainment in question.  Yet, the Court of Appeal obviously took the view that in a public place where both the entertainer and the public had access to freely, the licensing legislation simply had no application.  The present case is therefore a stronger one in the sense that here, the definition of public entertainment specifically refers to the general public being “admitted” to the entertainment, thus involving the ability to control as explained above.  Unfortunately, only the first instance judgment, but not the Court of Appeal judgment, was cited to the judge.

43.  It is plain, from the tracing of the legislative history of the relevant provisions, that generally speaking, the licensing requirements have all along been targeted principally at entertainments carried on within buildings or temporary structures of some kind.  In relation to entertainment at a public place, to which the public has free access, which does not involve any structures, permanent or temporary, for accommodating the viewing public, it is quite clear that it has never been the target of the licensing requirements.

44.  There are of course powers, statutory or otherwise, available to the Government regarding control of places and streets to which the public has access, which the Government may resort to for the purposes of crowd control and general safety.  But even if the construction that I favour would leave lacunas in terms of crowd control and general safety in relation to entertainments carried on in public places, we do not sit here to legislate.

The Commissioner’s arguments

45.  At the hearing, Mr Johnny Mok SC (Mr Abraham Chan with him) for the Commissioner was at pains to point out that the interpretation adopted by the judge and advocated by the Commissioner would not catch a busker.  But then he had great difficulty in telling the court how a line could be drawn between a busker and the volunteer dancers involved in the present case.  Up to the middle of the hearing, Mr Mok’s position had always been that so long as there was a power on the part of the organiser or performer to exclude people from the entertainment, the definition of “public entertainment” regarding admitting the general public would be fulfilled.  Counsel therefore submitted, for instance, in their written submissions, that the word “admitted” as used in section 4 of the Ordinance simply denotes that the entertainment must be one that members of the public are able to gain access to or, put negatively, are not excluded from.  According to counsel, an entertainment is “public” and of immediate regulatory concern when the public can access it.

46.  That argument obviously did not take Mr Mok’s case very far because “excluding” is simply the opposite of “admitting”, and both involve the ability to exclude or, as the case may be, admit.

47.  Counsel also argued that section 4 only refers to an entertainment to which the general public “is admitted”, without specifying the party who enables admission.  This strongly reinforces, according to counsel, the point that “admitted” in this context simply refers to the fact (or possibility) of public access to the relevant entertainment.

48.  I do not agree.  Since, in the definition of public entertainment, one is concerned with the general public being “admitted” to the entertainment in question, the person who enables the admission must be either the organiser or performer of the entertainment itself.  It follows that the person who has the ability to control admission must also be the organiser or the performer.

49.  After the mid‑morning adjournment, Mr Mok realigned his arguments and submitted that an entertainment is a public entertainment only if the organiser or performer has obtained the legal authorisation or permission from the Government to use the place in question for the purposes of presenting or carrying on the entertainment.

50.  For the reasons explained above, I do not think this is how the matter should be looked at.  In my view, the key question is whether the general public is “admitted” to the entertainment, and that involves an ability, on the part of the organiser or performer, to admit or exclude, that is, an ability to control admission.

Control of admission and the duty to prevent a breach of the peace

51.  The judge recognised the need, on the part of the organiser or performer, to have some control over the place of entertainment (para 60 of the judgment).  He considered that the organiser’s or performer’s common law right and duty, as an ordinary citizen, to prevent a breach or an imminent breach of the peace in his presence, gives the organiser or performer sufficient control over the place of entertainment (paras 60 to 63).  For reasons explained above, the control that we are concerned with is the ability to control admission, rather than the ability or duty to do or refrain from doing anything for the purposes of preventing an actual or imminent breach of the peace – the latter is a very limited right or duty restricted to an actual or imminent breach of the peace.

The dance performance in the present case

52.  For all these reasons, whilst I agree with the judge’s refusal of the applicant’s first declaration sought, I differ from him on the interpretation of the relevant provisions.

53.  In the present case, the organisers only notified the police for the purposes of the POO and the Commissioner dealt with the notification on that footing.  There was never any application to the Government for authority or permission to use the pedestrian precinct in question in such a way as to give the organisers the ability to control admission to the pedestrian precinct.  As a matter of fact, there was no attempt whatsoever on their part to exercise any such control on the day in question.  Members of the public were as free as always to use the pedestrian precinct whether during the demonstration or the dance performance.  We have seen videos taken of the events in question, as did the judge.  What one sees is pedestrians, about their normal business, passing the area of the demonstration or performance, some glancing at it as they walk by, some pausing for a moment and then moving on, and some staying to watch.  There was no question of the organisers admitting or not admitting the general public to the dance performance.  Every member of the public in the vicinity that day just did what they wanted to do.  The dance performance, though an entertainment, was not a public entertainment within the meaning of the Ordinance.  Neither the pedestrian precinct nor the place of the performance was a place of public entertainment, and it did not trigger the licensing requirements under the Ordinance.

54.  There was therefore no basis in law for any police intervention.

Disposition

55.  As indicated, the judge was right to refuse the first declaration sought in the Amended Originating Summons.  But that was based on an interpretation of the relevant provisions which I do not accept. Based on my interpretation of those provisions, the dance performance did not trigger the operation of the Ordinance.  In the overall circumstances of the present case, whilst the applicant is certainly not entitled to the declarations sought in the Amended Originating Summons, it is only just and fair for the court to declare formally that the dance performance on the day in question did not require the obtaining of a licence under the Ordinance.  There was no suggestion of any possible prejudice to the Commissioner by an amendment to include a prayer for such relief in these proceedings.  Accordingly, as indicated, we gave leave to further amend the Amended Originating Summons and to amend the Notice of Appeal to include such an alternative declaration and we granted the relief accordingly, that is, a declaration that the use of the pedestrian precinct on Lockhart Road on 15 May 2011 for the purposes of presenting or carrying on the Artistic and Dancing Expression at the 7^th International Day Against Homophobia Demonstration did not require the grant of a licence for places of public entertainment under the Ordinance.

56.  This being the case, the alternative constitutional issue does not arise.  There is no need to deal with it, nor is it desirable to do so in the absence of the necessary factual basis.  I prefer to express no views on that issue.

57.  As regards costs, there can be no denying that the applicant has won substantially on the key dispute between the parties regarding the scope of application of the relevant provisions in the Ordinance and whether the dance performance was caught by the Ordinance, despite the way the relief sought in the proceedings below and in this appeal has been framed. At the end of the day, this court has been able to grant substantive relief in favour of the applicant based on the merits of his case.  I would therefore make a costs order nisi that the applicant shall have 80% of the costs of the proceedings here and below, together with a certificate for two counsel.  I would also order legal aid taxation of the applicant’s own costs.  I would direct that any application to vary the costs order nisi shall be dealt with by written submissions only.

Hon Stock VP:

58.  I have had the advantage of reading the Reasons provided by the Chief Judge and I respectfully agree with them and with the orders which he proposes.

Hon Barma JA:

59.  I agree with the Reasons for Judgment of Cheung CJHC.

Hon Cheung CJHC:

60.  Accordingly, the court grants the declaration set out in paragraph 55 above and makes the orders relating to costs indicated in paragraph 57 above.