HKSAR v. LAI CHEE YING AND OTHERS

CACC 84/2021, [2023] HKCA 1340

On Appeal From [2021] HKDC 398, [2021] HKDC 457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 84 OF 2021

(ON APPEAL FROM DCCC NO 536 OF 2020)

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J U D G M E N T

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Hon Macrae Acting CJHC (giving the Judgment of the Court):

1.  On 14 August 2023, this Court handed down its judgment (“the Judgment”) allowing the applicants’ appeals against conviction on Charge 1, but dismissing their appeals against conviction on Charge 2, as well as D1, D2, D4 and D5’s appeals against sentence. The applicants and the respondent respectively now apply for a certificate that a number of points of law of great and general public importance are involved in the Judgment, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

2.  The points of law proposed by the respondent in their Notice of Motion dated 21 August 2023 are as follows:

“In a prosecution for an offence of organizing an unauthorized assembly, on a proper interpretation of section 17A(3)(b)(i) of the Public Order Ordinance, Cap. 245,

(a) what is the meaning of ‘organizing’?

(b) in particular, irrespective of any prior planning, arrangement or management, can the act of heading, leading and/or directing the procession amount to ‘organizing’ under the said offence?”

3.  The points of law proposed by the applicants in a total of five Notices of Motions, dated 21, 22 and 23 August 2023 respectively, are as follows:

(D1’s Notice of Motion dated 21 August 2023)

“1. Whether a defendant is guilty of the offence of knowingly taking part in an unauthorized assembly under 17A(3)(a) of the Public Order Ordinance, Cap. 245 (‘POO’) where the assembly has more than one purpose;

2. What is the correct test for ‘lawful authority’ and ‘reasonable excuse’ in section 17A(3)(a) of the POO, in particular whether the principles as elucidated in DPP v Ziegler (SC(E)) [2022] AC 408 are applicable and whether the safe dispersal of an authorized public assembly can amount to ‘lawful authority’ or ‘reasonable excuse’;

3. Whether, independent of any systemic constitutional challenge, the Court can or should assess the operational proportionality on the facts and circumstances of each case before convicting or sentencing a defendant of the offence of knowingly taking part in an unauthorized assembly under 17A(3)(a) of the POO; and

4. If the answer to the above question is in the affirmative, whether the assessment of the operational proportionality is applicable in a case of delayed enforcement or where there was no enforcement at the time of the offence.”

(D2 and D5’s Notice of Motion dated 22 August 2023)

“(1) Whether the Defendant is guilty of the offence under section 17A(3)(a) of the Public Order Ordinance, Cap. 245 (‘POO’) when participants in an assembly have different purposes?

(2) Whether the safe dispersal if (sic) an unauthorized public assembly can constitute a ‘reasonable excuse’ for an offence under section 17A(3)(a) of the POO or be justified by the defence of necessity?

(3) Should the Court conduct an assessment of proportionality at the operational level before convicting a defendant of an office (sic) under section 17A(3)(a) of the POO, taking into account the fundamental rights of freedom of expression and freedom of assembly involved?”

(D3’s Notice of Motion dated 21 August 2023)

“(i) In light of the fundamental rights of freedom of expression and freedom of assembly being engaged when the impugned procession was peaceful in nature:-

(a) whether the offence under section 17A(3)(a) of the Public Order Ordinance (Cap. 245) (‘POO’) is constituted in the absence of:-

(aa) any assessment by the Court as to whether the measures taken (or not taken) by the authority before, during and/or after the impugned procession (including the subsequent arrest, charging and conviction of the 3^rd Applicant) were operationally proportional vis-à-vis her fundamental rights aforesaid; or

(ab) any assessment whether such measures amounted to a disproportionate interference of her said rights;

and in this connection,

(b) whether the Court was correct or entitled to regard the elements of the said offence under the regime in the POO as already embodying the requisite proportionality analysis, and if not, how the proportionality analysis should be conducted.

(ii) Whether:-

(a) in light of (i) above, section 17A of the POO (and in particular, section 17A(3)(a)) is systemically unconstitutional for being a disproportionate interference of the fundamental rights of freedom of expression and freedom of assembly, particularly in light of the chilling effect resulting from the imposition of criminal sanction on a peaceful assembly, and further by the maximum sentence of 5 years for its beach;

and in this connection,

(b) it is appropriate for the decision in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 to be reviewed by the Court of Final Appeal.”

(D4’s Notice of Motion dated 23 August 2023)

“1. Whether section 17A(3) of the Public Order Ordinance, Cap 245 constitutes a disproportionate interference with the right of peaceful assembly and is therefore unconstitutional on a systemic level?

2. If Question 1 is answered in the negative, in determining whether a defendant should be convicted of an offence under section 17A(3) of the Public Order Ordinance, Cap 245, should the Court consider whether the conviction would constitute a disproportionate interference with the defendant’s right of peaceful assembly and is therefore unconstitutional on an operational level?”

(D6 and D8’s Notice of Motion dated 21 August 2023)

“a. Whether the provisions in creating the offence of knowingly taking part in an unauthorized assembly under section 17A(3)(a) of the Public Order Ordinance (Cap. 245) (‘POO’) are unconstitutional by reason of their being incompatible with fundamental human rights including the freedom of peaceful assembly.

b. Whether in trying a defendant for the offence under section 17A(3)(a) of the POO, the court is required to conduct an assessment of the operational proportionality of a conviction of the defendant in the circumstances of that particular case, whether by reason of ‘lawful authority or reasonable excuse’ or otherwise.”

4.  The respondent and the applicants oppose each other’s respective applications for a certificate.

5.  Further, by a letter from his solicitors filed with the Court on 28 August 2023, D1 applies for part of the costs of his trial and appeal, which is likewise opposed by the respondent.

6.  It will be convenient to deal with the parties’ applications for a certificate and D1’s application for costs together. There is no objection from any of the parties to disposing of these various applications on the papers without an oral hearing. After considering the voluminous written submissions (15 sets in total) from the parties, we now hand down our judgment.

The respondent’s proposed points of law

7.  As we pointed out in the Judgment, the word “organize” has no specialised, technical or legal meaning but generally connotes some responsibility for, or active participation in, arranging, planning or managing, an action or event[2]. We sought in the Judgment to explain the individual reasoning of the three members of the Divisional Court in Flockhart v Robinson[3], an authority relied upon by the respondent at trial and on appeal. Distinguishing that case from the present on the facts, we concluded that none of the applicants could be shown to have been the organizers of the procession as a matter of form or substance, but we also made clear that we were not saying that the leader of a procession could never be one of its organizers[4]. Much would depend on the particular facts and on the evidence of individual cases.

8.  The respondent has made seven points[5], which may be summarised as follows. First, the proper construction of section 17A(3)(b), the meaning of “organizing” and the proper reading of Flockhart v Robinson are matters which deserve the final determination of the Court of Final Appeal. Second, the proposed points have a real and significant impact on the regulation of public assemblies. Third, should Flockhart v Robinson be applied to the facts of this case in the way advocated by the respondent, the conviction on Charge 1 can be substantiated.

9.  We note on the face of the respondent’s argument that a great deal of factual issues are raised, which have already been resolved in the Judgment, albeit not in the respondent’s favour. It has not been suggested to us that this Court’s approach, in particular, as to the notion of “organizing”, departed from any other known authorities. We do not see how the respondent’s proposed points of law could arise for consideration as free-standing questions of law independent of the facts involved. Accordingly, we refuse to certify those questions.

The applicants’ proposed points of law

10.  We should begin by stating that, pursuant to Practice Direction 4.3 at [4], an application for a certificate should be made within 7 days of the handing down of the judgment. Since the Judgment was handed down on 14 August 2023, the time limit fell on 21 August 2023. Accordingly, D2 and D5’s Notice of Motion, and D4’s Notice of Motion, were technically filed out of time by 1 and 2 days respectively. Nevertheless, bearing in mind the fact that their proposed points of law are very similar to, if not overlapping with, those of the other applicants, we shall not reject any application based on an insubstantial lateness alone.

11.  Regarding Questions (1) and (2) of D1’s Notice of Motion, Questions (1) and (2) of D2 and D5’s Notice of Motion, Question (ii) of D3’s Notice of Motion, Question (1) of D4’s Notice of Motion, and Question (a) of D6 and D8’s Notice of Motion, it is relevant to re-produce [97] of the Judgment as follows:

“In respect of those grounds which might be said to be part law and part fact, we reject the argument that the defence of lawful authority or reasonable excuse (or necessity) could conceivably be made out on the facts which were accepted by the judge. In relation to the purely factual complaints, the judge’s conclusion that the water flow defence was a ruse to get around the ban cannot be criticised in any way as being wrong.”

12.  In our view, any questions on the same argument or complaint relating to, or arising out of, the facts of the case do not become reasonably arguable by reason of them now being framed as pure questions of law. Furthermore, for the reasons given at [87]-[92] and [96] of the Judgment, we are bound by the 2005 decision of the Court of Final Appeal in Leung Kwok Hung (supra). Accordingly, we found that the judge was correct in holding that a systemic constitutional challenge on the subject offences was thereby precluded. It is inappropriate, and without any valid basis, for this Court to grant a certificate, which might oblige the Court of Final Appeal to review the well-established principles of law propounded in its earlier decision. Accordingly, we refuse to certify any of those questions.

13.  We are, however, prepared to acknowledge that there may be a question of great and general importance as to whether the Court should follow the persuasive, though not binding, decision(s) of the Supreme Court of the United Kingdom in DPP v Ziegler (SC(E))[6] and/or Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill[7](which clarified some aspects of Ziegler) and, if so, in what circumstances, and to what extent, it should conduct an operational proportionality exercise. We note, in particular, that Ziegler was not only heavily relied upon by the applicants in the case before us, but its applicability has been the subject of debate in other local cases[8] (some with apparent approval on appeal).

14.  Accordingly, we grant a certificate to the extent indicated at [13] in relation to all other questions proposed by the applicants, namely, Questions (3) and (4) of D1’s Notice of Motion, Question (3) of D2 and D5’s Notice of Motion, Question (i) of D3’s Notice of Motion, Question (2) of D4’s Notice of Motion[9] and Question (b) of D6 and D8’s Notice of Motion, which, albeit couched in different terms, principally derive from the same point at [95] of the Judgment.

D1’s application for costs

15.  Ms Audrey Eu SC, with her Mr Jeffrey Tam and Mr Ernie Tung, on behalf of D1, seeks 50% of the costs of trial, 40% of the costs on appeal, a certificate for three counsel for both the trial and appeal, and the costs of this application.

16.  D1’s application is opposed by the respondent in its entirety on the following bases:

(a)  D1 had brought suspicion upon himself by his own conduct which, inter alia, demonstrated a leadership role in the procession, as distinct from merely participating in it[10]. His conduct was so reprehensible that he should be deprived of the costs of the trial, lest there be an affront to the administration of justice[11].

(b)  D1’s appeal only partially succeeded on one ground of appeal (that is, Ground 3), out of a total of 13 grounds of appeal, which comprise 7 grounds against conviction and 6 grounds against sentence[12]. D1 should not be entitled to any costs of the appeal, and even if he should, his entitlement should be confined to Ground 3 alone[13].

(c)  There was no justification for D1 to engage the services of two Senior Counsel (including Mr Edwin Choy SC, who is not instructed for these present applications) and two junior counsel for the trial and appeal[14]. Nor is there any exceptional circumstance to justify the granting of a certification of more than one Senior Counsel and one junior counsel in the present circumstances (even if a certificate of counsel is granted)[15].

17.  We do not accept that there was sufficient evidence of D1’s organization of the procession in question. However, by placing himself, a well-known public figure, in the vanguard of what he must have known was an unauthorised procession, D1 clearly brought suspicion on himself as to his true role in the unfolding events.

18.  It should also be remembered that when the appeal before this Court commenced on 28 November 2022, the Court immediately pre-empted Ms Eu’s argument in relation to Charge 1 by indicating our concerns with the evidence that the applicants were “organizers” of the unauthorised procession. When Ms Eu nevertheless continued with her submissions, the Court interrupted her again to say:

“Now, Ms Eu, I’m sorry… I appreciate your submission as to the quality of the procession as to what it was, but we are actually more concerned and, in fact, I think you’ve already answered it in the first page, on what is the evidence that your client organized, apart from being having ties to the democratic movement and being very famous and all the rest, and going into a tent and coming out and holding a banner, what is the evidence that he organized the assembly? That is what is troubling us.”

19.  As a result, very little argument was thereafter focussed on Charge 1, although Ms Lam, for the respondent, properly advanced argument, as she was entitled to do, on the question of “organizing”. Following her submissions, however, we did not call upon any of the applicants to reply in respect of Charge 1. The vast bulk of the argument was devoted to Charge 2, on which D1’s appeal failed.

20.  Given how little argument was addressed by D1 in respect of Charge 1, in the wake of the Court’s early indication of its collective view as to the lack of evidence of “organizing” and its meaning, we are not prepared to grant him any of the costs of the appeal or trial; but particularly so in light of our general remark above about D1 bringing obvious suspicion upon himself on the day in question. By his conduct, unexplained, we might add, at any stage of the investigation or trial, D1 would have led the prosecution to think the case against him was much stronger than it in fact was. In those circumstances, there is no warrant for awarding any part of the costs of the trial, the appeal or his present application.

Annex I

# denotes the respondent’s Notice of Motion

^ donates the applicants’ Notices of Motion