HKSAR v. LAI CHEE YING AND OTHERS

DCCC 536/2020

[2021] HKDC 398

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 536 OF 2020

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REASONS FOR VERDICT

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1.  The defendants are all jointly charged with organising an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance, Charge 1 and knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of the same Ordinance, Charge 2. The 7^th and 9^th defendant pleaded guilty before trial.

2.  The particulars of Charge 1 are that all defendants on 18 August 2019 organised a public procession which took place in contravention of section 13 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.

3.  The particulars of Charge 2 are that all the defendants on 18 August 2019 without lawful authority or reasonable excuse, knowingly took part in a public procession which took place in contravention of section 13 of the Public Order Ordinance, which was an unauthorised assembly by virtue of section 17A(2)(a) of the same Ordinance.

BACKGROUND

4.  On 12 August 2019 the Civil Human Rights Front, hereinafter known as “CHRF” submitted a notification of intention to hold a public meeting and procession, “the notification”, informing the police of the intention to hold on 18 August 2019;

(1) a public assembly in Victoria Park between 10am and 6pm;

(2) a public procession starting from Victoria Park and ending at Chater Road Central between 3pm and 7pm, and

(3) a 2^nd public assembly at Chater Road itself between 5pm and 11:59pm (Exh P2).

5.  There was a liaison meeting between CHRF and the police on 14 August 2019. (transcript/translation P3 & P3A) After it and on the same day the CHRF submitted an amended notification to the police specifying the proposed route of the public procession from Victoria Park to Chater Road. (Exh P4)

6.  On 15 August 2019 the police issued a letter to CHRF, a letter of no objection, a “LONO”, to say the police did not object to the holding of the public assembly in Victoria Park on 18 August 2019. However, having regard to the interests of public order and public safety and for the protection of the rights and freedoms of others, the police objected to both the public procession from the Park to Chater Road and the 2^nd public assembly to be held there upon arrival. (Exh P5 & 5A)

7.  The CHRF appealed against the police decision and after an appeal hearing convened by the Appeal Board on 16 August 2019, the Board upheld the police decision and dismissed the appeal lodged by CHRF.

8.  The CHRF held several press conference and interviews after that. On 17 August 2019 they said the police had not arranged for the dispersal of crowds from Victoria Park therefore, pro-democracy legislators and influential people would be assisting the crowds to disperse safely. They urged as many people to come to fill up Victoria Park the following day.

9.  On 18 August 2019 during the public assembly at Victoria Park and at about 3pm, all bar one of the defendants carried a long banner out of Victoria Park Gate 17 and led a procession of people to Chater Road Central. The 3^rd defendant joined them in Causeway Bay and helped to carry the banner. The timing and route taken followed the previously proposed route of the banned public procession. The procession finished at Chater Road with the defendants laying the long banner down on the road and it was declared that the public procession had ended.

THE ISSUES

10.  Did the defendants organise and knowingly participate in an unauthorised public procession or were they only assisting the organisers to disperse the crowds from Victoria Park in a safe and orderly manner? Were they leading the crowds away from immediate danger? Did they have lawful authority or a reasonable excuse to take part in a public procession? The defendants submitted they can avail themselves of the defence of necessity.

11.  What is not in issue is the merits of the decision of the Commissioner of Police to ban the public procession and 2^nd public assembly. What is not in issue is the identity of all the defendants either carrying the banner or walking in front of the banner shouting slogans through a megaphone. What is not in issue is that the defendants led people from Victoria Park to Central; essentially along the same route and at the same time as proposed for the banned public procession.

12.  There are constitutional challenges from all defendants on a systemic level as well as an operational level. They will come into play if I find the prosecution has proved a charge or the charges beyond reasonable doubt.

13.  Simply put, the defence submits these offences should not carry a criminal sanction and/or the maximum sentence of 5 years that can be imposed is too severe to be proportional and constitutional. The defence submits that the sole legitimate aim for imposing criminal sanctions is to ensure the compliance with the notification system and therefore the restrictions arising from section 17A (3) are not rationally connected with or are disproportionate to the legitimate aim if it were to be subject to a 4-step proportionality test.

14.  On an operational level, the defendants, taking into account the police action or inaction on 18 August 2019, should not have been arrested 8 months later nor prosecuted nor subject to a conviction for what turned out to be a peaceful assembly.

THE PROSECUTION’S CASE

15.  It is the prosecution’s case that the defendants deliberately flouted the law and knowingly ignored the ban by the police by organising and also taking part in an unauthorized public procession that started from Victoria Park and ended at Chater Road that day. The defendants formed the head of a public procession by carrying a long banner leading thousands of participants who were told to follow them to leave Victoria Park at about 3:09pm. The proposed banned public procession by CHRF was originally earmarked to start at 3pm. The banner group arrived at Chater Road at about 4:38pm.

16.  The prosecution say the defendants had knowledge that the public procession had been objected to by the Commissioner of Police and the CHRF’s appeal against that decision had been dismissed. They nevertheless assisted CHRF by organising one in defiance. They did it in the name of a dispersal plan.

17.  It was a disingenuous excuse to flout the law by describing their actions as a dispersal plan to lead crowds out of the park and to MTR stations safely and in an orderly manner. In short, the defendants knew that the public procession they organised and took part in was an unauthorised public procession.

18.  The prosecution says that this procession consisted of more than 30 people and with the words “stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands” printed on the banner with the caricature of a female with a wounded bloody eye promoted the common purpose required to constitute a public procession. Those words coincided with the purpose of the public assembly that was allowed at Victoria Park; to protest against the abuse of their powers by the police.

19.  There is much video footage of the public assembly in Victoria Park and the procession leaving from Gate 17 in Victoria Park to Chater Road. There is much video footage of the banner party comprising of all the defendants walking at the head of that procession to Chater Road. This includes what they did, who said what, which route they took and how it ended. There is video footage of many press conferences and statements made by the CHRF and some defendants as well as the Police. The CHRF spoke to the press after their appeal was dismissed on 16 August, again from Victoria Park on 17 August and at the public meeting on the day. There are transcripts and translations of the liaison meeting and some press conferences. None of this evidence was challenged.

20.  In the admitted facts, P1, all parties agreed that between 10 June and 11 August 2019, violence erupted during some protest events including confrontation between civilians and police officers. The chronology of events from the submission of the notification, P2 to the banner party leaving Victoria Park and arriving in Central was in the main agreed. Those included press conferences, interviews and various video footage of 18 August.

21.  In the LONO there are the details of the event allowed and all the terms and conditions imposed by the police. Of particular significance to this trial are the conditions that CHRF had 200 marshalls to facilitate the event and that the organisers adhered to any instructions given to them by the police on the day. In a second letter to CHRF after the appeal hearing, P23 & P23A, the police stressed these conditions.

THE DEFENCE CASE

22.  The CHRF were angry; publicly and vocally disappointed their public procession to Central and the 2^nd public meeting was banned. They stressed to the police that the public procession was necessary to ensure there was no danger of overcrowding in Victoria Park. They estimated 300,000 people would attend the public meeting, more than Victoria Park can accommodate.

23.  After the police ban, it was said publicly before and on 18 August 2019 that the police did not have a dispersal plan for crowd management control and the safety of participants. It was publicly declared during the press conference of 17 August that CHRF had invited influential people and ex-democratic legislators to assist CHRF to lead participants to various MTR stations to disperse the crowds safely and in an orderly manner. The participants were urged to participate in a peaceful and non-violent manner on the day.

24.  The defence say that the defendants only assisted CHRF that day in a dispersal plan described as water flow measures. They had not intentionally organised or knowingly participated in an unauthorised assembly. CHRF had to implement their own dispersal plan because the police deliberately did not implement any crowd management control plan. It was done out of reasonable excuse and necessity. The police tacitly consented to the plan that CHRF would arrange the dispersal of the crowds; therefore, the defendants had lawful authority to lead the crowds out to Central. The police left that to CHRF.

THE PROSEUCTION’S EVIDENCE

Prosecution Witnesses

25.  I have considered the oral evidence of the prosecution witnesses and exhibits referred to and produced. The evidence of the witnesses was not challenged in that there were discrepancies in their own evidence or amongst them that suggest unreliability. It is more a case of what the police witnesses didn’t say suggests the defence case was credible. It is more a case of what they didn’t say that is incredulous and unbelievable.

26.  An enormous number of issues were covered by witnesses during the course of this trial.  It is simply not practical in the course of these reasons for verdict for me to attempt to cover every aspect of events covered by every witness; to identify individually and discuss every argument or submission made by counsel for the prosecution and the defence. The defendants in the main adopted each other’s final submissions. That I do not mention a particular piece of evidence, transcript, video recording or submission does not mean that I have not considered it or factored it into my decision making. 

27.  I will highlight the salient points of the evidence of the prosecution witnesses. None of these witnesses dealt directly with any of the defendants in relation to this case, these charges, the permitted public meeting and the decision to ban the proposed procession and 2^nd meeting. No organiser of the public meeting is amongst the defendants.

28.  PW1, Superintendent Simon Cheung Wing Kan was the Commander of North Point Division at the time. Victoria Park was within the boundaries of North Point and their responsibility. When he received the notification from CHRF he delegated the responsibility of compiling a public event action checklist to PW2, Senior Inspector Tang Chun Ho. The purpose of the checklist was to identify any foreseeable hazards and assess risk. PW1 classified the proposed public meeting as a significant public event. PW2 was also appointed as an assessor to complete a public event risk assessment form, as well as risk control measures. These 3 documents were reviewed by PW1.

29.  All 3 documents were annexed to an operational order number 14/2019 issued by PW1 on 16 August 2019, P49. By the time he issued this he knew the decision of the Commissioner of police and the result of the appeal board. The purpose of P49, an internal document, was to notify all participating colleagues of the details in this action.

30.  Paragraph 11 of P49 deals with Police Community Relations Officers who would on the day liaise with and contact the organisers, CHRF, in particular the person in charge. PW6 and PW7 give evidence of their liaison duties and contact with the person in charge, Figo Chan on the day in Victoria Park.

31.  As the only authorised event was in Victoria Park which was in North Point Division, PW1 was the immediate commander of the event of the day (para 22 of P49).

32.  Under cross examination, it was put to him that the police deliberately did not implement crowd management controls nor control traffic on the day. It was part of their responsibility which they deliberately neglected or ignored. He disagreed.

33.  PW1 did agree the duties of CHRF marshals in leading or directing crowds away from the venue was part of the police solution to the possible overcrowding hazard. He expected the crowds to act in accordance with their directions. This part of his evidence was quoted in MFI-5, the 1^st defendant’s final submissions at page 30.

34.  PW2, Senior Inspector Tang Chun Ho gave evidence of the hazards he identified and risk assessment he made. He was attached to the event management office of North Point Division. He identified 6 hazards, gave them risk ratings and set out risk control measures for review.

35.  Normally for big public events in the park, participants enter from the East and West side where Causeway Bay MTR and Tin Hau MTR were located. In his experience in organising similar events in Victoria Park, he would request organisers first fill up all the 6 football pitches with participants and if more space was then required, the participants were to be directed by the organisers to the Central lawn which would have been cleared in advance. If there was still not enough room in Victoria Park, then the field commander of the day would consider the necessity of implementing the tactics of the tidal flow method to deal with the ingress and egress of participants.

36.  To implement the tactics of the tidal flow method used by the police, the Tin Hau Public Transport Interchange and Hing Fat Road Car Park at the east side of Victoria Park would be closed in advance to create a queueing zone for people to safely enter Victoria Park from the East. In his experience, the North side, South side and higher hill part of the park would be used for dispersal. If necessary, the police would ask the traffic unit to facilitate dispersal.

37.  In cross examination he gave evidence that he did not know of the details of the CHRF press conference held on 17 August. He denied that the police knew organisers would use their own water flow measures to disperse the crowds themselves. He himself had not heard that the organisers had asked ex-legislators to lead the crowd away from the park to various MTR stations. It was suggested to him that the police deliberately did not supply the manpower to implement their tidal flow method. He could not answer this as he had left the scene by 2:30pm. He went back to North Point to deal with internal security works of that station. He agreed that the park was already becoming crowded between 1 and 2pm.

38.  PW3 was Chief Inspector Sin Pui Man who was then the Senior Inspector of Operation Wing HKQ. She attended the liaison meeting between the police and the organisers on 14 August chaired by Chief Inspector Ku, PW8. She did not recall Figo Chan of CHRF specifically refer to water flow measures even though he mentioned it a few times. She knew that in the past CHRF had asked crowds at public meetings in Central to leave by MTR in groups so others could arrive. She had to report to her senior after the meeting, PW4 who went on to make the decision to only allow the public assembly in Victoria Park. PW3 was instructed to prepare the LONO, P5.

39.  She was mainly asked by PW4 if CHRF had any measures in place to prevent violence erupting or stopping trouble makers in the crowds. PW4 confirmed in her evidence that that was her main concern because of recent violent outbreaks after public events.

40.  PW3 also attended the Appeal Board hearing. She knew they did not judicial review the decisions because she was not informed as such. She agreed in cross examination that the police have said that CHRF have adopted a peaceful, rational and nonviolent approach to their events in the past and that they have cooperated well with the police.

41.  Her evidence was that on the day, she was at Command Office of Hong Kong Island, HICOM and not at Victoria Park. She said in cross-examination she had no recollection of the CHRF press conferences and had not heard of the plan to ask legislators to lead the crowd out of Victoria Park to disperse.

42.  She was shown video footage but did not agree that Victoria Park was packed with people by 3pm. She said there was still room in other places within the Park. It was normal practice for public events at Victoria Park to use the main lawn and other areas if the football pitches filled up. She did agree that people were still streaming in at that time.

43.  PW4, Superintendent Chow Wing Yee was in August 2019 the Acting Senior Superintendent OPS HKI region. It was her decision to allow the application for a public meeting at Victoria Park and ban the public procession and 2^nd public meeting proposed. On the day, it was her duty to monitor the holding of this public meeting as well as monitor the whole of Hong Kong Island region to see if anything would happen that day.

44.  She spent the day at HICOM monitoring the day through telephones, beat radios as well as live feed on televisions and the Internet. She was aware that 3 platoons had been deployed outside Victoria Park led by Chief Inspector Chan Lai Man, PW5. She was also aware that he had withdrawn all 3 platoons in the afternoon; he called her to tell her of his decision and she did not object. According to the operation order he was meant to redeploy his 3 platoons at the commencement of the public meeting to safeguard police buildings.

45.  It was her decision to not deploy police officers in the vicinity of Victoria Park and subsequently along the route of the unauthorised public procession led by the defendants at around 3pm. She knew there were 3 Police Community Relations Officers, PCRO officers, inside Victoria Park liaising with the organisers, PW6 and 2 others outside the park, PW7.

46.  She gave a full reason as to why she had decided not to deploy police officers having based this decision on risk assessment and to ensure public safety, public order and to protect the rights and freedoms of others. The atmosphere in society was bad, especially between the police and certain sections of the public because of the many violent incidents that took place between June and August 2019.

47.  She decided that if the police gave warnings to the organisers and participants for this unauthorised public procession or took enforcement actions there would be a real chance of radical protesters within the crowds taking advantage of the police presence to behave disruptively and violently. Other than conflict between police and some members of the public there was also a risk of conflicts between members of the public with opposing views. She did not want visible police presence or any enforcement action to trigger or provoke the emotions of the crowd. To avoid conflict, she decided not to deploy any police officers visible to the participants.

48.  In short, she considered the circumstances and found it did not permit warnings to be given to the defendants on the day without inciting violence and conflict. After all, the procession and public meeting was against the police for their abuse of power. Giving a warning was not her prime consideration. Her duty was to make sure all members of the public were safe including the participants, public not protesting and all her police officers. In any event, there were no police officers on route to give warnings.

49.  That did not mean however, there were no police officers on hand if any incidents occurred, she had deployed police officers nearby at the Central tunnel in Causeway Bay, Southorn playground in Wanchai, North Point station and other stations. All close enough to ensure public order and public safety as well as respond quickly if necessary but out of sight and mind to minimise the risk of confrontation. It was not the case that the police did not plan any preparation for issues arising but that the police were deliberately deployed out of sight.

50.  In cross examination she said one of the reasons she refused the public procession to and the public meeting in Central was that the organisers could not suggest any effective means to prevent violence and maintain public order and safety. Any public procession then would have been classified as a high-risk activity because of the violence that had broken out in Hong Kong in recent months.

51.  She was cross-examined at length about the manpower inside Victoria Park. That responsibility belonged to the Command of North Point Division but she did explain that the tidal flow tactic had been used by the police for many years successfully and it would be implemented if necessary. She agreed the police had a duty to take measures to ensure the safety of the public but the police also heavily relied on the organiser and the marshals, in this case over 200 marshals were required, to carry out the duty of asking people to leave and disperse so that others who were waiting in queueing zones could come in if that circumstance arose.

52.  PW4 explained that the police always required the help of marshals to facilitate the conduct of a public meeting. Crowds would often respond more positively to marshals than the police. She reiterated that under normal circumstances the police are there to try their best to facilitate but as with all decisions made by the police, it will depend on risk assessment of the day in question.

53.  Normally police would assist in crowd management but on that day it was also up to the Command of North Point Division to manage it. She herself saw no problem that day which required rectification such as more manpower for crowd control management; no report was made by the organisers for assistance nor was any report made to the police.

54.  She did not agree in cross examination that the hazard of overcrowding in Victoria Park had materialised by 2pm. She said there were a lot of people there and that Chief Inspector Raymond Chan had told her that the sentiment of the crowd was running high and emotions against the police were very negative. She said Victoria Park was not full by the time the defendants had organised an unauthorised public assembly and left the park.

55.  In cross examination she said she had not heard CHRF mention a water flow meeting in press conferences nor had she heard that legislators would assist people to disperse from the park. She watched the public procession proceed from Victoria Park to Central and saw that no violence erupted; no violence erupted anywhere in Hong Kong Island which she took as a sign her risk assessment was correct. It was the right decision not to take any enforcement action aided by an element of luck.

56.  It was put to her that the defendants leading people out of Victoria Park were part of the measures implemented by CHRF to help disperse crowds. The police trusted CHRF to take up the task of dispersal. She disagreed because she knew that PW6, the PCRO liaising with the officers gave CHRF specific instructions about dispersal of the crowds which were deliberately ignored. She did not agree the dispersal was orderly because of what CHRF called water flow measures implemented. She said the lack of violence was not due to this but because their decision not to deploy visible police officers at all was the correct decision.

57.  She reiterated that the police had banned the proposed public procession. The crowds at the authorised public meeting could just enter and leave without problem. This meant that CHRF did not need to take up any task of dispersing the crowd; dispersal was not an issue at 3pm when the defendants left with a long banner.

58.  PW5 Chief Inspector Chan Lai Man was in August 2019 the Assistant Divisional Commander Ops. North Point Division. He led 3 platoons to Victoria Park on 18 August. All were in uniform. Each platoon consisted of about 30 officers. 2 platoons were stationed at the East entrance of Victoria Park near Tin Hau MTR whereas the 3^rd platoon was stationed at the West entrance closest to Causeway Bay MTR. It was in these 2 directions that participants normally entered Victoria Park for public events.

59.  To facilitate those entering from the East, the police closed off and reserved the Hing Fat Carpark and the Public Transport Interchange. These would be used for queueing zones if required. When they arrived at around 11am the officers of the platoons were on duty to assist people to enter the park from both the East and West.

60.  As the number of people arriving increased, his officers were subject to a barrage of verbal abuse, foul language and insults. In the morning briefing they had been told to take a tolerant attitude to the crowds and exercise restraint. At about 1pm when even more people arrived to enter the park the abuse escalated in their direction. The platoon at the West entrance was subjected to similar abusive behaviour.

61.  By about 2pm the abuse was intolerable in that it was a constant stream. His view was that the situation was only going to get worse and the crowds greatly outnumbered his officers. He made a decision to tell his officers to leave traffic duty and move away from the crowd. He recalled the other platoon from the Causeway Bay entrance as well. He had assessed the situation and found the emotion of the crowd hostile and in order to avoid any conflict or violence that would endanger public safety and order he had decided to withdraw all 3 platoons from work and return to police stations. He informed HICOM of his decision and it was acknowledged.

62.  He agrees that paragraph 20 of the Operational Order P49 had made provisions for the 3 platoons to be redeployed at the commencement of the meeting. However, he said he had made a decision to leave before he was given instructions to act on that deployment.

63.  It was suggested to him in cross examination that his recollection of the severity of the abuse was mistaken because he must have been abused so much more later in the year. It was put to him that he did not leave with the 3 platoons because of incessant abuse and insults. He disagreed and said he had a deep impression of it because he was personally abused that day by the crowd. He had never been in that position nor had ever had to retreat for this reason.

64.  There was no defence evidence that he and the platoons were not subject to such abuse leading to his decision to withdraw to avoid any conflict as suggested.

65.  He said they left at 2:30pm and he could see that the Public Transport Interchange was not full nor used for queueing to get in yet. He did not see any choke points at Gate 7 and 14 by the time he left which were normally used for ingress. The crowd was moving in from the east slowly but steadily; there were no crowd issues before he left. They had actually implemented tidal wave measures at Gate 7 and 14 for the crowds arriving but abandoned them when the abuse escalated.

66.  He said these measures at these Gates were commonly implemented for crowd control, for example at the 4 June vigil that year but the atmosphere was very different and the police were not the target of abuse and insults.

67.  PW6 was Senior Inspector Cheung Ka Man, and on 18 August 2019 the Assistant Police Community Relations Officer, APCRO of Eastern District. She had attended the liaison meeting with the organisers on 14 August. Her superior was PW7, Chief Inspector Wu Man Yee. She attended the briefing in the morning at North Point station and was instructed to do the direct liaison work inside Victoria Park with the organisers that day. She had 2 sergeants with her, mainly for her own protection. She arrived at Victoria Park with colleagues and her superior; her superior was stationed outside Victoria Park during the event. She spent the day under or near the raised stage and marquees close to the organisers.

68.  According to the LONO, the person in charge from CHRF was Figo Chan. She first saw him at about 1pm with the 2^nd defendant, Mr. Lee Cheuk Yan. She chatted with Figo Chan and reminded him that if there were too many people for all the football pitches then he was to tell the crowds to go to the main lawn and other places in Victoria Park. She also reminded him that the public procession had been banned. When she spoke to him the 2^nd defendant was still close by.

69.  By about 2:15pm PW6 saw most of the defendants arrive at the marquees under the stage. She saw Ms Ng Ngoi Yee, D3 arrive first and then Mr Leung Kwok Hung, D4, Mr Jimmy Lai Chee Ying, D1, Mr Martin Lee Chu-Ming, D8, Mr Leung Yiu Chung, D7 and Mr Ho Chun- Yan, D6. She disagreed in cross examination that she was spying on them as they arrived.

70.  It is not challenged and it is captured on video footage that just after 3pm all the defendants except D3 left Victoria Park through Gate 17 carrying a long white banner and headed westward towards Causeway Bay. D3 joined the banner party minutes later on Causeway Road and also helped carry the banner.

71.  That afternoon, on 3 separate occasions PW6 gave Figo Chan what she called “advice” but in reality, it was instructions or directions to CHRF. To describe, as suggested, what she told him as the liaison officer to tell the crowd was only advice that can be ignored is senseless. It was suggested to her that her advice was not mandatory. However, it is clear the content of her advice can leave no one in doubt she meant it as a direction. She said she used that description as that is the practice of the police.

72.  At about 2:30pm, Figo Chan and other CHRF organisers went up on the stage and started talking to the crowds. At about 3pm she was told the football pitches were quite full so she went to talk to Figo Chan and give him advice for the 1^st time. PW6 told him to tell the crowds to go the Central Lawn if the pitches were full and if people were leaving, to leave by heading to Tin Hau and Causeway Bay MTR stations. Her evidence was that these instructions were well known to CHRF from many previous public meetings held in Victoria Park.

73.  Figo Chan heard her and understood but when he went back up to the stage, he only told the crowds to go to the lawn if no space on pitches. She had no recollection he told the crowd to use the 2 MTR Stations she specified to leave the park.

74.  At about 3pm she saw D1 and D2 with some marshalls leave the marquees and head towards Gate 17 on the south side of the

75.  She heard Figo Chan shout at 3:07pm (transcript/translation P46A & P46B) and tell the crowds that if they could not leave from Causeway Bay, then they should leave from Wanchai. If they could not leave from Wanchai, then they should leave from Admiralty. If they could not leave from Admiralty, then they should leave from Central. He asked the crowd if that was okay and they all shouted loudly in agreement. PW6 then saw people face towards Gate 17 and start walking in that direction to leave the park.

76.  PW6 then heard on her beat radio that the crowds were leaving via Gate 17 and some were already on Causeway Road on the carriageways obstructing traffic. She knew that the lawn was not yet full so she gave Figo Chan advice the 2^nd time at 3:20pm. She told him to tell the crowds that if people were leaving they were to leave by Tin Hau and Causeway Bay MTR Stations and also not to walk on the carriageways but proceed to those MTR stations on pavements. She told him to relay the message on the stage. Her recollection was that he only told people to fill the lawn and did not repeat her other instructions.

77.  Since he did not follow her instructions, after about 20 minutes PW6 asked him to come down off the stage again before giving him advice for the 3^rd time. By then it was about 3:40pm. She repeated her advice and gave him specific instructions on which walking routes to tell the crowds to take to go to those 2 designated MTR stations. He even challenged her and said it was not feasible to use the 2 MTR stations so she checked on her beat radio and was told it was feasible; they were open and operating. She is sure he heard her but when he went back on stage, he did not relay her directions to the crowds. He did not convey her advice or instructions to the crowds as he was required.

78.  By then she said it was obvious that the crowds she could see on football pitches Nos. 4 and 5 near her were queueing up to leave the park via Gate 17. The organisers on the stage were giving speeches and chanting slogans; the emotions of the crowd was running very high.

79.  She heard on her beat radio that by then the crowds were all over the carriageways of Causeway Road and Hennessy Road. She also heard on her beat radio that the MTR had announced they would consider trains skipping certain stations according to the prevailing situation but that the MTR stations were not closed.

80.  Her evidence was that at no time did she receive any complaint from the organisers that there was overcrowding in the venue and they needed any assistance from the police. She received no complaints of any problems for participants entering or leaving the venue. There were no police report made of any problems of overcrowding. There were no crowd management issues such as overcrowding that were brought to her attention before crowds left from Gate 17. She knew that the lawn was not yet full before that time.

81.  It was suggested to PW6 in cross examination that the police were to blame as suggested by the organisers onstage. They said the police refused to close Causeway Road. They refused to tell the organisers their dispersal plan. She agreed that that is what the organisers said onstage but she did not correct Figo Chan as he made similar disparaging statements all day long. In fact, after 3:40pm she could not get him down off the stage to talk to her. He just ignored her.

82.  PW6 did consider giving Figo Chan a warning as he was failing to follow police instructions but since there was a question of her own safety, she decided not to take any action. She also wanted to keep the relationship as harmonious as possible as the liaison officer. She did report to her commanders that he had failed to follow police instructions. It was suggested to her in cross examination that she might be wrong in her recollection that she gave him advice 3 times but she disagreed. She disagreed her recollection of the timing of the 1^st advice was wrong.

83.  She also disagreed in cross examination that it was potentially dangerous to tell the crowds to leave by those 2 MTR stations. The stations were operating, not closed and the lawn and Park were not yet full at that stage.

84.  She disagreed in cross examination that the organisers were adamant that the public procession was for the purpose of orderly and safe dispersal from Victoria Park when discussed at the liaison meeting. She did recollect that the organisers had a lot of personal opinions and expressed them when it was suggested that there would only be a public meeting at the park. A reading of the transcript does confirm that recollection.

85.  She did not recall the term “water flow meeting” being used in the liaison meeting although she had heard of that expression but not given its meaning much thought. She said she had not given the organisers instructions to use the water flow method to leave Victoria Park nor was she aware that they had earlier told the press that the police had advised them to use this method to leave. She said, in any event, the police don’t have or use a water flow manner method in their practices or operations. They implement tidal flow measures if necessary.

86.  PW7, Chief Inspector Wu Man Yee was PW6’s superior and had instructed her to station herself by the stage and liaise directly with the organisers for the day. PW7 herself was outside Victoria Park to oversee the communication that day.

87.  At 3:15pm she was on the flyover above Causeway Road between the Central Library and Victoria Park. It gave her a better view of the proceedings plus some shelter from rain. At that time, she saw the defendants carrying a long banner leaving Gate 17. They were at the head of the procession with a group of reporters in front of them. She saw many people following them as they headed westward. In her view, it was an unauthorised public assembly, a public procession. She did report what she saw to the command post.

88.  She was also in the liaison meeting but had no recollection of the words “water flow” but she did recall they were uttered during discussions that did not touch upon the meeting inside Victoria Park. They were matters for other districts so she did not pay close attention. She did not see the subsequent press conferences of the organisers but did hear about them on the news; in summary they said that the meeting in Victoria Park would still proceed.

89.  It was suggested to her that she could have warned the defendants or stopped the unauthorised procession. She said it was only herself and a sergeant on the bridge with no equipment, ammunition or protective clothing. In any event, it was for her seniors in the command post to decide if any action would be taken having assessed the situation.

90.  PW8, Chief Inspector Ku was tendered for cross examination as the chair of the liaison meeting on 14 August. In cross examination he said Acting Senior Superintendent, PW4 had told him to discuss with the organisers in the meeting only holding a public meeting and not a public procession for the sake of safety and public order.

91.  He does recall the person in charge, Figo Chan informing him that the public procession would end in Central and they intended to disperse the crowd in a water flow manner. He understood Figo Chan to mean using the normal and previously implemented procedure by the organisers, “the old ways”, to divide participants up into group when they arrived in Central at Chater Road to disperse to different MTR entrances and certain pavements.

92.  PW8 was referred to the transcript of the liaison meeting as he could not recall details of 18 months ago. He agreed that the transcript reflected that the organisers objected to only a public meeting; several made long objections. He agrees that he did tell the organisers that he would reflect their views to his senior.

93.  When he later met his senior, her most pressing concern and question was whether the organisers would follow their previous procedures and whether they had any plans to deal with any violence that erupted or trouble makers amongst the crowds. He does recollect PW3, Chief Inspector Sin, reporting to PW4 that the organisers had not suggested any concrete measures. He did not add anything because PW4 did not ask him nor gave him time to speak. He agrees he did not repeat all the grievances of the organisers.

94.  On the day he was at HICOM and saw the defendants leaving Victoria Park with the long banner from live broadcasts by news channels. He was responsible for liaising between other districts, regions and formations. He was there to provide help or support if required. Essentially if anyone needed help or reinforcement they would call him but on that day there were no such requests; specifically, no calls for assistance with crowd management duties. Wanchai and Central Division had no contact with him for any assistance that day.

95.  In cross examination he did not find the concerns expressed by the organisers at the liaison meeting valid. He said there was a lower risk to public safety and peace in society if there was only a public meeting in Victoria Park as opposed to a public procession through Hong Kong Island.

96.  In his view a crowd of 300,000 was feasible if there was a control of the flow of pedestrians and speed they travelled. Crowd control measures could include implementing tidal wave measures. That is those moving in one direction would be divided into different batches to proceed as a way of controlling the crowd. The organiser would normally make announcements to the crowd to that effect and as directed.

97.  PW9 and PW10 were not police officers. PW9, Mr Chan was a Station Manager from MTR Corporation and his statements were exhibited as P53 and P53A. He explained that all stations were open and operating on 18 August but there were times when some trains skipped stations depending on the pedestrian flow and the number of people on the platforms.

98.  If trains were coming in and people could not get off safely because of crowds at that platform and lobby, then the train would skip that station and continue on to the next. In his annex he set out how many trains went to each station and how many skipped stations between which hours on 18 August 2019. He also explained which and why exits became one directional flow at certain times. He explained why some Gates changed from entry to exit between certain hours.

99.  PW10, Mr Leung was from the Transport Department and his statement at P52. He confirmed in cross examination that the official transport department documents annexed to his statement was what he relied on to make his statement. He set out what roads were temporarily closed and when as well as what public transport routes were affected on 18 August 2019.

100.  The prosecution also relied on various news footage of police interviews, of broadcasted police statements, of CHRF press conferences and interviews from 16 August to 18 August 2019 to prove the knowledge of all defendants and to prove a plan to flout the law and ban.

Police Press Conference and Announcements

101.  This evidence is important and therefore to be highlighted. It is important for what was said to the public over several days by CHRF and some defendants before 18 August 2019. This equally applies to the video and audio footage of the defendant’s actions on the day.

102.  MFI-3 is a helpful chart of the videos relied on including their exhibit numbers, date, source, reference to the 4 trial bundles, whether parts were played in open court and any remarks such as location filmed. It also shows how many different news channels broadcast the same news. It sets out what relevant news was widely disseminated to the people of Hong Kong.

103.  Before the appeal board decision to uphold the police ban Chief Superintendent Tse Ming Yeung, CSP Tse, held a press conference at 4pm on 16 August; video P7(1), transcript and translation P8 & P8A. In it, he referred to the CHRF public meeting of 18 August and why the public procession was banned by the police. He referred to how many public activities rapidly became violent events recently so they objected to some rallies planned on Sunday (18 August) after risk assessment. Statistics were given with details of how on 18 dates during or after demonstrations there was wide scale violence, even those organised by CHRF.

104.  The ban of the public procession to Chater Road was referred to several times before the question and answer session and during it. It was specifically said several times that if the Appeal Board supported the police decision to ban it then anyone taking part will be accused of participating in an unauthorised assembly.

105.  During that conference, instructions were given which Victoria Park Gates to use to enter the public meeting and to use the lawn and other areas of the park if the football pitches were full. It was said roads may be closed if necessary.

106.  During the question and answer session, CIP Tse said the police would coordinate with the organiser CHRF to carry out effective crowd management by adopting tidal flow arrangements when crowded conditions arose. Questions were answered about crowd management measures for that public meeting. Questions were answered about whether crowds waiting to enter the park or leave in the facility who were stagnant would be accused of committing a crime. The police would make a judgement whether that was actually the case or that people were participating in an unauthorised assembly. It would all depend on the circumstances and the police would not be drawn into answering hypothetical questions.

107.  Annex 1(A) of the Prosecution’s Amended Opening sets out the wide circulation of the CIP Tse’s press conference on 16 August 2019; 17 different media outlets circulated that conference.

108.  After the Appeal Board determination SP Liauw Ka-kei addressed the press at 8:15pm on 16 August; Exh P25(1) broadcast from TMHK, transcript and translation P26 & P26A. He appealed to the organisers to respect the decision made by the appeal board. The decision to ban the public procession was based on public safety and public order considerations.

CHRF Press Conference After Appeal Dismissed ( Exh P25(4))

109.  Immediately after the Appeal Board decision to dismiss the organisers appeal, CHRF held a press conference at the doorstep of the board; transcript and translation P27 & P27A. The person in charge from CHRF of the public meeting, Figo Chan spoke first and expressed their deep disappointment and anger with the Appeal Board decision and what they saw as a restriction on their fundamental rights.

110.  Sham Tsz-kit Jimmy of the CHRF also spoke and said if they had a procession on 18 August which is peaceful, rational and nonviolent then Carrie Lam had to respond to their 5 demands. He urged people to come and jam Victoria Park first and then it would be reasonable for the jam to reach Wanchai.

111.  The 9^th defendant, Au Nok-hin spoke at that same interview urging more and more Hong Kong people to come out on the day because they lost the appeal. He said the police had to bear the consequences of not allowing a public procession in view of the anticipated turnout.

112.  Annex 1(B) of the Prosecution’s Amended Opening sets out the wide circulation of that CHRF press interview and the statement of SP Liauw Ka-kei on 16 August 2019;10 different media outlets circulated that interview and statement.

CHRF Press Conference - 17 August 2019

113.  On 17 August, Sham Tsz-kit, together with the 2^nd, 4^th and 9^th defendants held a press interview to explain how the public meeting would proceed on 18 August. It was covered in P28 to P31, with the full interview seen in P28 and transcribed and translated at P31 & P31A.

114.  Essentially, that press conference was to express their extreme regret that only the public meeting in Victoria Park was approved. It was said the police would not answer how participants would disperse. They saw it as a deliberate plan by the police or others to cause difficulties to their public meeting. They appealed to everyone to jam pack Victoria Park and to be peaceful, rational and nonviolent so as not to fall into this trap.

115.  CHRF would arrange for dispersal in an orderly manner by way of a water flow meeting. The gist of the first two speakers from CHRF was that the public meeting would go ahead and if the park was jammed full they had requested a group of pro-democracy legislators to be responsible for leading out participants from Victoria Park in an orderly manner to get to MTR stations to leave.

116.  The 2^nd defendant appealed for participants to enter Victoria Park to stay for a short while and then leave by Causeway Road to Admiralty and to Central. He said the police had created a problem for CHRF and Hong Kong people so they will deal with it flexibly. He said that on the day they will have a way to deal with the police who were playing tricks. Their way would be “lawful, peaceful and rational, the entire act of protest, that is, everyone lines up to enter Victoria Park and lines up to leave Victoria Park”.

117.  The 4^th defendant said “the procession tomorrow” will be a peaceful one and that this was the 1^st CHRF application for a procession to have been refused so he hoped people will come out and act like water, “be water”. He expressed hope that pro-democracy legislators and influential people in Hong Kong society will come out and walk together with the people. He appealed to people to come out and walk with him. He said the Hong Kong government were wrong to believe they could prevent Hong Kong people from expressing their views and they would “definitely go hand-in-hand as one man and walk together until the end.”

118.  The 9^th defendant said that some pan-democrat leaders or legislators will “try to lead them (the participants) out of Victoria Park and go to the designated area, especially MTR stations to leave our assembly.”

119.  Annex 1(C) of the Prosecution’s Amended Opening sets out the wide circulation of this CHRF press interview on 17 August 2019; 8 different media outlets circulated it.

CHRF Press Conference - 18 August 2019

120.  On the day, CHRF held a press conference in Victoria Park before the start of the public meeting at about 1:45pm; video P45, transcript and translation P45A & P45B. Organisers told the press they could only organise a public meeting but not a public procession and that the purpose of the meeting was to “stop the police and gangsters from plunging Hong Kong into chaos and to implement the 5 demands”.

121.  They voiced their concern the police would disperse participants if there were too many and violence may be used against those outside the park. They announced Legislators would lead the crowd to leave Victoria Park to several MTR stations but it was not a march. It was emphasised it was not a march but legislators leading the crowd peacefully from Victoria Park so more could enter.

Videos of the Procession from Victoria Park

122.  Exhibit P46 is a continuous news broadcast from NOW TV from 1:40pm to just past midnight on 18 August. It covers Victoria Park and the speeches made by the organisers on the stage to the banner procession to Chater Road and more. Parts of the day’s proceedings; the commentary and speeches from the organisers from 1:41pm to 3:58pm have been transcribed and exhibited at P46A & P46B.

123.  P40 is a continuous news broadcast from RTHK News from 2:52pm to 4:52pm on 18 August. It too covers Victoria Park, organisers speeches and the banner procession to Chater Road. In MFI-3 in section 5 entitled “public procession on 18 August 2019”, it lists all the video footage exhibits covering the public meeting and the procession from Victoria Park to Chater Road.

124.  At 3:07pm Figo Chan on the stage, after a reading of the 831 manifesto declared to the participants that Victoria Park was full but the police still refused to close off Causeway Road for access. Then he said very loudly “it’s cleared, right? It’s cleared?” as if to confirm road closure. There was loud applause. He then said the police had requested everyone to leave Victoria Park in a water flow manner.

125.  Prosecution witnesses have denied that roads were closed by the police. They were blocked by participants entering the Park. It was denied the police requested CHRF to disperse people in a water flow manner. Despite this, Figo Chan went on to tell people to get up and follow legislators assisting the crowds to leave Victoria Park. He said at 15:08:38 “if you can’t leave from Causeway Bay, go to Wanchai. If you can’t leave from Wanchai, then go to Admiralty. If you can’t leave from Admiralty, go to Central, okay?” to loud cheers.

126.  Prior to this announcement and instruction PW6 had seen almost all the defendants arrive by the stage before she saw the 1^st and 2^nd defendants with marshals carrying a long rolled up banner go towards Gate 17. After this announcement and instruction was given she then saw people on football pitches Nos. 4 and 5 lining up to leave by Gate 17. P47 is a map of Victoria Park with gates labelled in red and P48 is a map of Causeway Bay to Central.

127.  The video footage shows a long banner printed with the words “Stop the police and gangsters from plunging Hong Kong into chaos, implement the 5 demands” and a caricature of a female with a wounded bloody eye was unfurled and carried by all the defendants to leave through Gate 17. All but the 3^rd defendant who joined the banner party minutes later on Causeway Road. Not long after the banner party left, there was a heavy downpour of rain.

128.  The 2^nd defendant held a microphone and walked in front of the banner for most of the way to Chater Road. He led the chanting of a variety of slogans with a microphone and loudspeaker. As he chanted those participants behind and around him would repeat after him or respond appropriately, for example, if he shouted “5 demands”, the response would be “not one less”. At times, the 3^rd, 4^th, 5^th and 9^th defendants can be seen and heard responding.

129.  This banner party was wide and long but made even wider and longer by a black cordon or rope that surrounded it and the defendants, held up by others. The banner party and this cordon took up well over the width of a carriageway. Screenshots from video footage at P33C, P35C, P36C, P37C, P39C, P40C, 42C and 44C identified all the defendants and show close-ups of them carrying the banner. It shows how big the banner party was with a black cordon around them.

130.  Thousands of people can be seen following the banner party out of Victoria Park. On the way to Chater Road, the 2^nd defendant was often heard appealing to and urging pedestrians to go to Victoria Park first and then come out because this was a water flow meeting, P43B. The slogan “jam pack Victoria Park” could be heard often, in particular from the 2^nd, 4^th and 9^th defendants.

131.  There is no dispute by the defence and it is clear from the video footage that the banner party lead participants along Causeway Road, Yee Wo Street, Hennessy Road, Queensway, Des Voeux Road Central, Ice House Street and stopped on Chater Road where the banner was laid on the road outside the Court of Final Appeal building.

132.  Along the route which took about 90 minutes to walk, not one defendant mentioned dispersal nor dispersal by this or that MTR entrance as they walked near or passed them. Some of the chanting has been transcribed and translated; they identify the speaker where possible, see P33A & B, P35A & B, P36A & B, P39A & B, P40A & B and P43A & B.

133.  When they arrived in Central they turned down Ice House Street to arrive at Chater Road. That road and several other roads in Central are pedestrianised on a Sunday and in the shelter of a footbridge on Ice House Street were many foreign domestic helpers sitting on cardboard trying to stay dry. When the banner party arrived the procession had to stop for some defendants and others to ask the domestic helpers to leave the carriageway and help them move all their cardboard.

134.  The prosecution rely on what was said upon arrival in Central by some defendants standing with all the other defendants together to prove the intention behind this procession was in fact to flout the law and thwart the ban. An intention that included all of them, to show they were in this together. For example, in the transcript and translation P40B at page 143 at 4:27pm the 9^th defendant is recorded as giving directions out loud as to how they will proceed down which roads to arrive at Chater Road. The 4^th  defendant then chants repeatedly “I have the right of procession. No police permission is required” and “I have the right to protest”. The 9^th defendant shouts the same chant.

135.  At 4:38pm the 2^nd defendant told the crowd and procession that they have arrived in Central now. They were now at the finishing point, people could now disperse and this was a water flow pattern walk from Victoria Park to Central. Immediately after, the 4^th defendant repeated his chants that police permission was not required and he has a right of procession. The banner party are still all together at this stage.

136.  Dispersal is mentioned for the 1^st time when the 2^nd defendant said to the crowd, “you are welcome to disperse using the MTR station here”. The crowd was told they were welcome to walk back as “it’s a free marching day in Hong Kong today”. At 4:42pm the 2^nd defendant continued and said the route they took from Victoria Park equaled the procession they had originally planned so their procession can be very peaceful. These points are repeated several times over.

137.  On the day, the police did not arrest or take any enforcement action against the banner party, the defendants. They were arrested later on 18 April 2020. PW4, SP Chow explained many times why no enforcement action was taken on the day; the main reason was because in light of recent violent events, the police did not want to provoke the emotions of the crowds in case it led to violence and serious disorder endangering public safety and public order.

Disruption as a Result of the Procession

138.  The prosecution submit the procession led by the defendants caused serious disruption to traffic and public transport way past Causeway Bay and Wanchai. The procession and the participants covered all carriageways on its path. Even neighbouring roads to those carriageways were blocked. Vehicles, taxis and buses were trapped on Gloucester Road and its flyover. Video footage shows an ambulance being unable to proceed along Causeway Road.

139.  The evidence of PW10 from the Transport Department comes from his statement P52 which sets out from 1pm at intervals, what roads were temporarily blocked. The first part of his statement sets out road closure records on Hong Kong Island until past midnight and the second part sets out what public transport was truncated or diverted for the whole city, not just Hong Kong island.

140.  It is not disputed there is video footage of a black clad protester repeatedly kicking traffic cones near the procession route on Hennessy Road at about 4:16pm. It is not disputed there was graffiti painted or sprayed onto water barriers surrounding the Central Government Offices, seen on NOW TV footage P46 at about 8:30pm. Chanting can be heard.

141.  It can be seen from the same footage that there were many people on the blocked off roads and gathered outside the Central Government Offices; some were shining laser lights into the premises over the water barriers. They were clearly aimed at police vehicles parked inside and police officers just inside the building. When a police vehicle moved it was bombarded by laser beams which must have made it difficult to drive. A viewing of P46 from about 8:30pm until past midnight shows that road closed with more and more people arriving on the carriageways of Harcourt Road outside those offices.

142.  There are several occasions where there was news footage of violence towards a member of the public. At 8:18pm on P46 a man in red is loudly accused of being an undercover police officer then a triad. The situation was very volatile; he was cornered and abused. He is then filmed being followed, abused, jeered at and had laser lights shone in his face. At about 11pm a man in a white shirt is targeted and surrounded, obviously assaulted because blood is seen pouring from his head.

DEFENCE SUBMISSIONS

143.  All defendants submit that the court can construe from the evidence of the prosecution witnesses, in particular PW4, that the police were relieved that their lack of enforcement or action against the banner party resulted in a peaceful procession desired by the police. Therefore, one can draw the inference that the police were trying to achieve that result. The police knowingly tolerated this procession and tacitly consented to CHRF organising the dispersal in this manner even though the police had publicly banned such a procession.

144.  Much emphasis was placed on the liaison meeting where the organisers set out their reasons for the necessity of a public procession when it was suggested only a public meeting would be allowed. They explained in detail that a procession was required for dispersal in view of the large crowd anticipated. People had to disperse in a water flow manner, that is when more than capacity allows a flow into Victoria Park, there must be a flow out to avoid overcrowding and danger.

145.  It was suggested that the widely circulated news of the CHRF press conferences and interviews meant the police were well aware of the water flow dispersal plan the organisers openly said they had to plan in advance. It was described as implausible that the police witnesses did not hear of or understand the meaning of this water flow dispersal plan when it was mentioned on so many occasions.

146.  Despite this knowledge, the police must have deliberately made a conscious decision not to ask CHRF about this water flow meeting, what they intended to implement or advise them that it would be an unauthorised procession. It was described as implausible that police witnesses on the ground on the day, like PW6 or PW7 did not liaise with the organisers on the subject or warn them officially not to organise a procession out of the park.

147.  The police said in the operation order, P49 that they had intelligence the public procession may proceed despite the ban. The defence highlighted the lack of action to counter such a likelihood as evidence the police tolerated or consented to the procession. The defendants not only had a reasonable excuse but lawful authority. They were not the head of an unauthorised procession but part of a necessary dispersal plan.

148.  Once the 3 platoons were withdrawn from Victoria Park there were no officers there to carry out the police duty to facilitate the public meeting and assist with crowd control to ensure public safety. The defence say this was deliberate because the police relied on the organiser; it was incumbent on the organiser to arrange dispersal. After all, PW1 agreed under cross examination that he hoped and expected the crowds to follow directions given by the marshals of CHRF.

149.  It was suggested that the lack of police deployment in or around the park was deliberate to set a trap for the defendants; it was a politically motivated decision.

150.  The defence submit there was insufficient evidence to show the defendants had organised the public procession. Ms Eu SC for the 1^st defendant argued there was insufficient evidence to prove he was an organiser as such. The news coverage clearly indicated the banner party were invited to assist with dispersal and they responded to directions from those on the stage on the day.

151.  The 1^st defendant like some of the other defendants were not personally involved in the application for a LONO, not a member or an organiser from CHRF, did not attend any press conference and did not chant slogans nor urge participants to join in a water flow meeting from the Park to Central.

152.  It was suggested by Ms Eu and adopted by all other defence counsel that the banner party did not direct the route. They were led by others; there was no evidence they dictated the route therefore they did not organise the procession. The fact they were in front and carrying a banner is not sufficient to infer they were organisers. The fact that the dispersal route was substantially the same as the banned procession supports the submission it was not the 1^st defendant or other defendants who organised or planned it.

153.  It is submitted that the prosecution witnesses were evasive and not telling the whole truth. It was submitted that what they did say about the operation that day supports the submission that the banner party had reasonable grounds to believe that the water flow meeting was known to and therefore tolerated as well as tacitly consented to by the police. The prosecution has been unable to prove beyond reasonable doubt that the defendants organized and knowingly participated in the alleged procession without lawful authority or reasonable excuse.

MY FINDINGS

154.  As I have said, I will first determine on the facts if the prosecution has proved beyond reasonable doubt all the elements of the offences. They do not fall or stand together. The defendants do not fall or stand together.

155.  I have taken into account that as of 18 August 2019, all defendants on trial except the 4^th defendant had clear records. I have considered the good character directions in relation to both credibility and propensity.

156.  The burden of proof is on the prosecution. The defendants are not required to prove their innocence. It is for the prosecution to prove each element of the offence beyond reasonable doubt.

157.  The defendants elected not to give evidence. That is their right and no adverse inference can be drawn against them. The fact that no defendant has given evidence proves nothing, one way or the other. It does nothing to establish their guilt. However, this means that there is no evidence from the defence to undermine, contradict or explain the evidence presented by the prosecution. I refer to Li Defan v HKSAR (2002) 5 HKCFAR 320.

158.  I am assisted by oral and written submissions from all of the defence, marked MFI-5 to MFI-9 respectively. I emphasise again that it is simply not practical in the course of these Reasons for Verdict for me to attempt to cover every aspect of the evidence of every witness; to identify individually and discuss every argument or submission made by individual counsel for the prosecution and the defence. The defendants adopted each other’s final submissions.  That I do not mention a particular piece of evidence, transcript, video recording, submission or authority submitted does not mean that I have not considered it or factored it into my decision making. 

159.  I am sure after considering the evidence and submissions that there was an unauthorised public assembly from Victoria Park to Chater Road despite an objection to it by the Commissioner of Police. I am satisfied it consisted of more than 30 persons and was organised for a common purpose, a purpose set out in writing on the banner at the head of the procession. I am sure it was a public assembly that took place in contravention of section 13 of the POO.

160.  I am sure it was not a dispersal plan born out of necessity but an unauthorised public procession as defined by the POO. I am sure the prosecution can prove beyond reasonable doubt that there was a procession as opposed to a dispersal from the Park. Similarly, I am sure the prosecution can prove there was no lawful authority or reasonable excuse to organise or participate in this possession.

161.  On the face of it, the news footage shows what can only be described as a procession with designated leaders in the front that set off from Victoria Park. There were express instructions from the organisers to follow those leaders out of Gate 17. It was described as a dispersal to MTR stations. Yet and this is important, there was no evidence that overcrowding was an imminent hazard before 3pm and no evidence that dispersal was not possible through the usual exits and 2 MTR stations used during public meetings at Victoria Park. The park was becoming full and there were still participants entering slowly due to their large numbers but that was no evidence that exit routes were inaccessible or problematic before 3pm.

162.  In fact, there was evidence from PW6 that she had given express instructions to the person in charge, Figo Chan that were deliberately ignored. One of the conditions of the LONO was that the organisers had to adhere to instructions from the police. I am sure she was deliberately ignored because there was a pre-planned procession organised to start at 3pm despite the ban.

163.  On the face of it, the news footage shows what can only be described as a public procession with thousands following as the head of the procession chanted slogans relating to the common purpose all the way to what is described as the finish. There was not one word relating to the crowd behind them dispersing safely at MTR stations nearby, be it Causeway Bay, Wanchai or Admiralty. There was no assistance given to the crowd as to how to leave safely. This is contrary to what was described as a water flow dispersal to nearby MTR stations to disperse safely.

164.  Moreover, what was chanted indicates that the intention was to organise and participate in an unauthorised assembly in direct defiance of the police ban. Nearing and in Central, it was declared that police permission was not required and there was a right to a procession. This was repeatedly and loudly chanted within the cordon of the banner party yet none of the other defendants left the group upon hearing this admission. Moreover, it was also declared that the procession ended at Chater Road when the banner was laid down by all holding it, another indication it was not a dispersal plan but a procession with a start and finish.

165.  I have carefully considered all that said by the CHRF and the 2^nd, 4^th and 9^th defendants in press conferences or interviews after the appeal failed and before the procession began and find there was a call to attend the public meeting and show dissatisfaction at the police ban by intentionally defying it in the name of dispersal.

166.  Without repeating again what was said in various interviews, the gist of the message was that the police ban restricted the right of freedom of assembly and expression but Hong Kong people could be flexible and get around this ban by holding a procession in the name of dispersal. What was suggested was to deliberately flout the law openly by claiming it was necessary for safety reasons. A reading of all the transcripts and not just highlighting certain sentences and the phrase “water flow” clearly reveals this message and intention.

167.  The 4^th defendant told the public to attend the public meeting and then “be water” which was a saying adopted by protesters in 2019 to keep the police on their toes by being anonymous, spontaneous, flexible and disperse quickly – like the flow of water. He promised to walk to the end with everyone hand-in-hand. This sounds more like a rallying cry rather than an explanation behind a dispersal plan and overriding concern for safety.

168.  If the defendants were only there to assist with dispersal to ensure public safety and avoid overcrowding, then it does beggar belief they needed such a large banner that took so many of them to carry it. In addition, it appeared necessary for a cordon to go around the entire banner which meant this banner party took up well over the width of a carriageway.

169.  Instead of assisting the crowds to disperse safely, those crowds were led head on into other oncoming crowds in Causeway Bay by the banner party forcing the procession to move very slowly and forcing people coming in the opposite direction to move to avoid them. The banner at one stage had to be folded in half lengthways to get through the oncoming crowd. There was also footage of people in front of the banner party being asked politely to clear away for the procession. If safety was paramount and dispersal the object, then this flies in the face of logic and credibility.

170.  I am sure this public procession was not about dispersal of crowds. That was a description used to defy the law and circumvent the ban. This intention was vocalised repeatedly and publicly days before the public meeting. It was only a dispersal plan in name and the truth is it was a planned unauthorized assembly.

171.  It was symbolic for the defendants to lead this procession on almost exactly the same route and at the same time as the proposed procession; it was no coincidence that this dispersal plan mirrored the banned procession.

172.  Has the prosecution proved the defendants had knowledge they were taking part in an unauthorised assembly? As declared in the press interview on 17 August the ban on the public procession was a first for CHRF hence, their outrage. It was newsworthy and widely broadcasted.

173.  It was specifically mentioned in the almost daily 4pm police conference on 16 August with the police offering an explanation for the objection. It was also specifically mentioned that anyone participating in an unauthorised procession in defiance of that objection would be committing a criminal offence.

174.  All of the defendants have ties to democratic parties or support the pro-democracy movement, many were well known legislators known for their pro-democratic stance. 3 of the defendants are legally trained and very experienced lawyers undoubtedly familiar with the POO. It is common knowledge that CHRF is an organisation that is affiliated with almost all pan-democratic groups in Hong Kong. It is significant that the organisers issued an invite to influential people known for their pro-democratic stance because of who they were and what they stood for to lead a procession to defy the ban. I am sure this was deliberate.

175.  Therefore, I am sure the wide news coverage of the police objection and the disappointment and anger of the organisers coupled with the announcement of an invitation for them to assist CHRF on the day meant all the defendants were well aware that the police had objected to the public procession but in spite of that, CHRF nonetheless planned for it to proceed.

176.  I am in no doubt they knowingly participating in an unauthorised procession but has the prosecution proved they are organisers; that they organised that unauthorised assembly. A commonsense approach must be taken in defining the word “Organise”. The prosecution has relied on the facts of the case and also Flockhart v Robinson (1950) 2 KB 498.

177.  The prosecution relies on the evidence of the acceptance of the defendants of the invitation by CHRF to join a “water flow meeting” from Victoria Park on 18 August. They rely on what can only be described as an orderly and organised public procession from the video footage to show it proceeded under the direction and leadership of the defendants.

178.  In Flockhart the majority of the Court held that, “as the essence of a procession was that it proceeded along the route, the person who directed its route was the person who organised it;…”. It was said that the word “organise” is not a term of art. When a person organises a procession, what does he do? The person who organises the route is the person who organises the procession.

179.  Here, without the defendants forming the banner party it is unlikely the procession would have come into being. It is clear they agreed to be the head of the procession and led the direction in which the procession was to proceed. The fact that not all of them spoke or gave directions where to go does not preclude them from being an organiser. They acted as one. They acted together; all are equally culpable.

180.  There of course, can be more than one organiser and an organiser does not have to ultimately participate or take part in the procession.

181.  The agreement of the defendants to be the banner party leading the public procession when they knew of the police ban supports the prosecution’s case that they were part of the organisers. I find the evidence supports and proves the element of organisation of an unauthorised assembly that day and it is applicable to all defendants.

182.  This also applies to the 3^rd defendant who did not leave with the banner party through Gate 17 but joined them minutes later. I take into account she was seen and photographed with most of the other defendants inside the park by the organisers red marquees just before the procession started.

183.  I do not accept the defence submission that because they were not named as part of the organisers of the public meeting nor involved in the application for a LONO, they cannot be defined as organisers. Also, the fact that some of the defendants did not chant slogans or make any speeches to motivate or galvanise participants does not mean they were only following the instructions of the organisers CHRF and were not organisers themselves.

184.  The 1^st defendant sought to distinguish Flockhart because the route was not planned by him. He seeks to rely on the footage of marshals holding the black cordon around the defendants and banner to prove they were in fact dictating the route to him and he only followed. It was submitted he only responded to an invitation to lead a dispersal party which does not make him an organiser.

185.  With respect, there is no evidence of why he or any of the other defendants were there despite suggestions in submissions. There is no direct evidence of what he or any of the other defendants heard, believed, knew or intended despite many suggestions to that effect in submissions.

186.  There was much emphasis in submissions and in cross examination of prosecution witnesses on the duty of the police at this public meeting, their deployment of officers to facilitate it or lack of, their lack of responsible planning to ensure public safety and public order, their inaction when the organisers did not follow instructions and the defendants unfurled a banner to lead a procession out.

187.  The police headquarter orders from 2005 (P50) and 2019 (P51) as well as the operational order for the public meeting of 18 August 2019 (P49) do set out the duties of the police at public events and were the subject of many questions and submissions. It was highlighted in submissions that in P49 the police set out their bottom line in paragraph 34 where it states they will adopt a flexible and facilitating approach for this public meeting and reminded the force of the need for tolerance, commonsense; not to take action except for certain stated behaviour.

188.  Ms Eu submitted that the information in this operational order indicated the police knew that there would be a dispersal plan carried out by the organisers along a similar route of the proposed banned procession. It is submitted the police anticipated overcrowding was a real hazard and likely to materialise. They acquiesced to CHRF implementing their water flow meeting to deal with that hazard.

189.  In her submissions she submits the police deliberately ignored the likely hazards by not deploying sufficient manpower. The evidence that they did not know of or consider the CHRF water flow meeting procession a possibility is not credible. It is not credible they were not briefed on that likelihood. It is not credible they took no action against Figo Chan ignoring instructions at the scene nor is it credible that no one acted, reacted or considered whether enforcement action was necessary when the public procession started.

190.  It was stressed the police have powers to prevent or stop any unauthorised assembly under S17 of the Public Order Ordinance therefore action should have been taken and warnings should have been given. I do not agree with the submission from Mr Lok SC for the 6^th and 8^th defendants when Ms Po, his learned junior submitted a warning from the police to the defendants was essential for the prosecution to prove an offence had taken place.

191.  I have considered all submissions relating to the credibility of the witnesses and the police operation that day. I have considered and accepted the evidence of particularly PW4 in explaining the lack of police presence in the park and on route to Central. Her reasoning and own risk assessment of police visual presence and any enforcement action including warnings resonated with the tone of PW1’s operational order for that specific public meeting. After all, the public meeting was to protest against the abuse of police powers.

192.  I believe PW5’s evidence as to why he withdrew the 3 platoons stationed at the West and East side of Victoria Park; it was prudent. I believe he did weigh up the pros and cons of remaining to facilitate crowd control versus withdrawing those 90 officers. It confirmed PW4’s fears were realistic and her plans to deploy police out of sight but near enough if needed were appropriate for that day and in those circumstances.

193.  In any event, the police plans, actions, inactions or as described during the trial as “their planlessness” are not relevant to whether the defendants intended to organise and participate in an unauthorised assembly.

194.  Even if the police made mistakes, neglected their duties, ignored the CHRF press interviews and conferences or as Ms Po suggested, the police handling contained a “litany of errors” from the start, it does not make the public procession a dispersal plan.

195.  I do not find merit in the submission that the prosecution’s evidence supports a defence of lawful authority or reasonable excuse. That is because I am sure an unauthorised procession was planned in advance to mirror the banned procession and flout the law. That is why Figo Chan did not even pay lip service to instructions given to him by PW6.

196.  I do not accept Ms Po’s submission that because the police withdrew when they had a duty to facilitate the meeting to protect the public and ensure public order and at a time when she said CHRF needed them most, they abandoned that duty and they abandoned their role to protect the rule of law. She submits their abandonment means there was reasonable excuse for the participation of the defendants.

197.  I reject the defence submission that the police tolerated the public procession and even tacitly consented to it. I do not accept they turned a blind eye. I believe the police made a conscious decision to operate in a way to minimise any risk of violence or confrontation that day. I accept the evidence that they planned their operation either before or on the day with the information they had and were constantly receiving in such a way to ensure this and to protect public order, public safety and protect the rights and freedoms of others.

198.  In view of this and my findings above, I am sure that there was no lawful authority or reasonable excuse for the defendants to knowingly take part in an unauthorised assembly. These defences are not available to any of the defendants. I’m satisfied the prosecution evidence does not support these defences.

199.  Ms Eu has submitted that even if I were to find the 1^st defendant was an organiser and knowingly participated without lawful authority or reasonable excuse in an unauthorised assembly, I should nevertheless go on to acquit him on the basis that the procession was “a reasonable and proportionate contravention of the law, having regard to the evil of a risk of serious injuries which could be caused by a potential stampede when a downpour descended on the crowd.”. I was referred to the law on the defence of necessity. Mr Dykes SC for the 2^nd and 5^th defendants similarly referred to it and expanded on it in his submissions.

200.  It was submitted that because of the very real risk of serious injuries due to a potential stampede when and if it rained hard as well as the abdication by the police of their responsibility to facilitate the dispersal of the large crowds inside the park, there was a necessity for someone to organise and to participate in an orderly dispersal of this crowds.

201.  The defence of necessity is not common and usually only pleaded in extreme circumstances. The prosecution has referred me to the defence of duress of circumstances which has, without going into the relevant case law, taken over in cases which would have come under necessity. Duress operates to provide an excuse for breaking the law.

202.  As it has been raised by the defence, it is for the prosecution to prove that whilst the defendants had the mens rea required when committing the offence, they were not acting out of compulsion. The prosecution needs to show the defendants did not act as they did because as a result of what they reasonably believed to be the situation, they had good cause to fear that otherwise death or serious physical injury would result or as Mr Dykes suggested, “could” result. The prosecution needs to show the commission of the offence, viewed objectively, was not reasonable and not proportionate having regard to the evil to be avoided or prevented.

203.  As a result of my findings above, there is no evidence of any situation where death or serious physical injury was imminent. Necessity was not the sine qua non of the commission of the offences. This defence is not available.

Defences read into Charge 1 – the 3^rd Defendant

204.  Mr Ho SC leading Mr Isaac Chan for the 3^rd defendant submits the defences of “lawful authority or reasonable excuse” should be read into Charge 1 and should operate in the same way as it does for Charge 2. He argues that the court has an equal duty to give effect to the right of freedom of assembly under both subsections; that right is engaged in both the offences of organising and knowingly participating in. The addition of those defences does no violence to the underlying legislative intent but on the contrary, it gives efficacy to the whole scheme under the POO. His submission was adopted by all.

205.  I agree with the prosecution when they say this point is academic because the defendants cannot establish lawful authority or reasonable excuse in the facts of this case. I also agree that in any event, it must be deliberate that these defences are available for one charge and not the other. The person who participates in an unauthorised assembly may have a reasonable excuse but it is difficult to conceive of the same when someone actually organises it.

CONCLUSION

206.  I have taken the totality of the evidence into account, this means the oral evidence, documentary evidence and all of the video footage of news coverage before 18 August and of that date. The transcripts have been of enormous assistance when read in their entirety. I have considered all submissions.

207.  I am sure I can draw an irresistible inference from the evidence when considered together that the defendants with others organised and participated in it themselves, an assembly that was subject to an objection by the Commissioner of Police and therefore unauthorised.

208.  In conclusion, I find the prosecution has proved beyond reasonable doubt that all the defendants organised a public procession which took place in contravention of s13 of the POO which was an unauthorised assembly by virtue of s17(A)(2)(a). All the elements of Charge 1 have been proved.

209.  Similarly, I find the prosecution has proved beyond reasonable doubt that all the defendants without lawful authority or reasonable excuse, knowingly took part in a public procession which took place in contravention of the same section, which was an unauthorised assembly. All the elements of Charge 2 have been proved.

CONSTITUTIONAL CHALLENGES

210.  All defendants have launched a constitutional challenge of both s17A(3)(b)(i) and s17A(3)(a) of the POO on a systemic level and an operational level. It is submitted the sections should be struck down as unconstitutional as they failed to satisfy the proportionality analysis on both levels.

Systemic Proportionality Challenge

211.  The systematic constitutional challenge centres on whether criminalising the organisation and participation in an unauthorised assembly amounts to a disproportionate restriction on the right to freedom of assembly and procession protected under Article 27 of the Basic Law and Article 17 of the Hong Kong Bills of Rights Ordinance, Cap 383 (“BORO)” which mirrors Article 21 of the International Covenant on Civil and Political Rights (“ICCPR”).

212.  The defence unanimously drew a distinction between a peaceful and a non-peaceful unauthorised assembly to argue that the imposition of criminal sanctions where there was a peaceful unauthorised assembly would disproportionately restrict the right to freedom of assembly.

213.  It was submitted that the sole legitimate aim for imposing criminal sanctions where there was a peaceful assembly was to ensure the compliance with the notification system therefore the subject offences were not rationally connected with the legitimate aim. It was submitted that the imposition of criminal sanctions had no legitimate societal benefits, failing to strike a fair balance between the societal benefits and the protected rights of the defendants. This sanction creating offence was therefore an unacceptable burden on the defendants.

214.  The defence also unanimously submitted that the maximum term of imprisonment of 5 years that could be imposed for a breach of these offences is too severe; so severe it is disproportionate. So severe it had a chilling effect on those that wished to exercise the right to freedom of assembly.

215.  Courts recognise certain constitutional guaranteed rights are absolute and never subject to a proportionality analysis. Where guaranteed rights are not absolute, the law can create restrictions limiting such rights. The courts can question those restrictions and it will do so by subjecting them to a proportionality analysis.

216.  Article 39 of the Basic Law states the provisions of the ICCPR and other international conventions as applied to Hong Kong will be implemented through our laws. Article 39 (2) states that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Those restrictions must be consistent with the provisions of the specified international conventions.

217.  Article 27 of the Basic Law provides;

“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.”

218.  Article 17 of the BORO guarantees the right of peaceful assembly as follows;

“The right of peaceful assembly shall be recognised. 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.”

219.  Article 17 recognises the right to peaceful assembly but restrictions are imposed, including those for preserving public safety and public order, and protecting the rights of others. The courts will apply a narrow interpretation to those restrictions to protect the constitutional right to peaceful assembly but people must still exercise that right in a lawful manner. Hong Kong people do enjoy the same freedoms of assembly, speech, procession and demonstration as other advanced and free societies worldwide. Similarly, in those other countries, those freedoms are subject to the prescribed laws of their own jurisdiction.

220.  That means Hong Kong people are obliged to respect the laws that are in force even those that restrict these rights. As Hon Yeung VP said in Secretary for Justice v Wong Chi Fung & Others (2018) 2 HKLRD 699;

“3. …Any act of protest or demonstration for which the police have not issued a Notice of No Objection, or in which violence or the threat of violence is used to express one’s opinions, crosses the boundary of the peaceful exercise of the rights and enters the territory of unlawful activities; it becomes an unlawful act which interferes with the rights and freedoms of others.”

221.  Hon Yeung VP said in that authority that “in recent years, an unhealthy wind has been blowing in Hong Kong…”. It appears to have continued into 2019 and escalated from June that year. That was when this city experienced serious social unrest, public disorder, vandalism and escalating violence for months.

222.  The prosecution’s response to this constitutional challenge raised by all the defendants is that it is precluded by the Court of Final Appeal decision in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229. A systemic challenge cannot be launched on either S17A(3)(b)(i) and S17A(3)(a) of the POO because it was held in that authority that the statutory notification scheme under the POO was constitutional. That decision includes sanctions and is binding on this court.

223.  Leung Kwok Hung, the 4^th defendant here, was convicted of holding an unauthorised assembly contrary to s17A(3)(b)(i) of the POO, the same section as Charge 1 in this case. He refused to go through the statutory notification procedure despite a warning from the police. The offence arose from a peaceful procession of between 40 and 96 people which was therefore unauthorised. At issue was whether the statutory scheme for regulating public processions was contrary to the right to freedom of peaceful assembly guaranteed by the Basic Law and Hong Kong Bill of Rights.

224.  Although the majority of the Court of Final Appeal in 2005 held that the statutory scheme under the POO did not satisfy the “prescribed by law” requirement (with regard to the concept of “ordre public”), the majority held that such reference to “ordre public” could be severed and the remaining concept of public order is sufficiently certain. It was decided the notification scheme was constitutional and the convictions were upheld.

225.  In that authority the Court of Final Appeal examined the full range of discretionary powers that the Commissioner of Police and the police could exercise in restricting the freedom of assembly and procession.

226.  This authority is 15 years old but despite a submission otherwise, it is still without doubt good law and binding on lower courts. It has been referred to since as good law and not least, most recently in Leung Kwok Hung v Secretary for Justice (No 2) (2020) 2 HKLRD 771. This appeal stemmed from a judicial review of The Prohibition on Face Covering Regulation made under the Emergency Regulations Ordinance, Cap 241 and related constitutional challenges.

227.  The defence unanimously submitted that the Court of Final Appeal in Leung Kwok Hung 2005 did not focus on or decide that the sanctions imposed under s17A were proportionate and constitutional. Therefore, the systemic challenge here is not precluded by that decision. If that submission is correct then the validity of the sanction provision should be analysed through a four step proportionality test. It would be subject to a proportionality analysis as set out in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372.

228.  There are similarities between this case and Leung Kwok Hung 2005. The 4^th defendant was convicted of the same charge as charge 1 here. Both unauthorised public processions were peaceful, in that there was no violence. However, in this case I find there was the major traffic disruption on Hong Kong Island caused by the unauthorised public procession held on 18 August 2019; during and after it. It is distinguishing and is relevant to the submission the procession was peaceful.

229.  One other notable difference is that in 2005 Leung Kwok Hung did not notify the Commissioner of Police of an intention to hold a public procession whereas in this case there was notification but no Letter of No Objection. That difference, in my view, does not distinguish that authority. If anything, the existence of a police ban or objection makes these facts more serious.

Is Leung Kwok Hung & Ors v HKSAR (2005) Binding Precedent?

230.  After the Court of Appeal decision in Leung Kwok Hung 2005, a Notice of Motion was filed for a certificate certifying that there was involved in the said decision, a point of law of great and general importance. It was granted and the point was namely “Whether the notification scheme under S13 to S15 of the Public Order Ordinance contravenes Article 21 of the ICCPR, Article 17 of the Hong Kong Bill of Rights and Articles 27 and 39 of the Basic Law” (see Tab 41/Prosecution’s supplemental authorities bundle (B))

231.  In that same bundle at Tab 42, the Determination of the Court of Final Appeal dated 6 January 2005 decided that the 3 questions certified by the Court of Appeal boiled down to one and the same question and that was “is the scheme which the Public Order Ordinance lays down for notification and control of public processions constitutional? The answer to that question is likely to affect also the scheme which the same Ordinance lays down for notification and control of public meetings”. Leave to appeal to the Court of Final Appeal was granted.

232.  The prosecution has referred me to the judgements of the lower courts to support their submission. The decision of the Chief Magistrate, Mr Patrick Li, as he then was, is reported in (2003) 1 HKLRD 468. It is useful for this chronology to highlight the defendant’s argument set out in the headnote. Leung Kwok Hung and the other defendants argued that:

(a) the notification system meant a public procession must first be approved by the Commissioner, and this unreasonably circumscribed the right to peaceful assembly;

(b) the provisions regarding the exercise of the Commissioner’s power to object to a public procession were too ambiguous and lacked appropriate checks and balances; and

(c) organising an unauthorised public procession amounted to a criminal offence, and the penalty imposed for that offence was disproportionate.

233.  The Chief Magistrate found the defendants guilty and held that the penalty provided by s17A(3) was not disproportionate to the offence. He found “Penalties imposed by legislation were maximum penalties, and the court was entitled to take into account various factors in determining an appropriate sentence.” (See p481B-C Chinese & p473C-D English)

234.  He reiterated the primary principle in sentencing which is that punishment must be commensurate to the criminality. The legislation simply prescribes maximum penalties. He found that the section, that is s17A(3), did not violate the standard provided in the BORO.

235.  The majority of the Court of Appeal, reported in (2004) 3 HKLRD 729 also found that the notification system was constitutional and dismissed the appeal. Ma CJHC as he then was, confirmed at para 9 on page 737 that the constitutional challenge made by the appellants was against ss. 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A of the POO.

236.  S17A(3) is set out in its entirety in para 34 of the judgement. In para 38, the Court of Appeal refers to the specific challenge by the appellants to the offence creating provisions of s17A. In para 39, it is apparent no separate submissions were made by the defence with regard to this section. Ma CJHC said the issue of the constitutionality of s17A depended on the determination of the constitutionality of the notification provisions of the Ordinance.

237.  The Court of Appeal by a majority held that the notification scheme was constitutional. The appeals were dismissed and the convictions upheld. As Ma CJHC said at para 61;

“Accordingly, I am of the view that the notification scheme for public processions contained in ss.13 to 15 of the POO is constitutional, whichever test is adopted (see paras 20 to 22 above). It follows from this that s17A is constitutional as well”

238.  Next, the Court of Final Appeal by a majority dismissed the appeal and upheld the convictions. The prosecution submitted that in finding the notification scheme constitutional, the highest court took into account the criminalisation and the penalty as well. It did not correct or qualify what Ma CJHC said and that is s17A is constitutional as well.

239.  Para 63 of that judgement, under the heading “Police powers and criminal offences” summarised the police powers and criminal offences. The court covered and set out the various criminal sanctions of s17 and s17A in full including the penalties, that is the maximum penalty is 5 years’ imprisonment on conviction on indictment or a fine of $5000 and 3 years’ imprisonment on summary conviction for s17A(3)(b)(i). The sections imposing sanctions and penalties were clearly taken into account in the deliberation of the Court of Final Appeal.

240.  The prosecution submits the question of constitutionality of s17A(3) was very much part of the defence submissions to the Court of Final Appeal. The question of the severity of the penalty and even whether there should be any criminal sanction for failure to notify the police was specifically raised by leading Counsel for the 2^nd and 3^rd appellant in that appeal.

241.  The prosecution has exhibited the submissions dated 5 May 2005 from Counsel of those appellants, Mr Martin Lee SC, the 8^th defendant in this trial. He made submissions on “what the new scheme should be”, see Tab 43/Prosecution’s supplemental authorities bundle (B).

242.  Mr Lee submitted there were many objectionable provisions in the POO which were unconstitutional including the maximum penalty of 5 years’ imprisonment for holding and taking part in an unauthorised assembly. At page 6 of those submissions Mr Lee suggested that in a new scheme that should be enacted by the Legislative Council, there should be no criminal sanction in the notification system for merely failing to notify the police or alternatively, if there was a penalty then it should only be a financial penalty.

243.  I agree with the prosecution that the decision to uphold that scheme under the POO as constitutional included all aspects of the scheme, even s17A. There is no direct reference to s17A in the ratio decidendi but it can be read that the court took into account the criminalisation and penalty in coming to its decision to uphold the convictions.

244.  It was certainly a live matter during the appeal as seen from Mr Lee’s written submissions and the reference to the actual provisions of that section in the judgement. I do not agree with the submission that because the Court of Final Appeal did not focus on the proportionality of the penalty therefore, that penalty section has not been subject to any authoritative scrutiny.

245.  The Court of Appeal in Leung Kwok Hung (No.2) 2020, clearly thought it had been subject to scrutiny and a proportionality analysis. In para 206 the court noted that in Leung Kwok Hung 2005 even though on the facts of the case that conviction was due to the failure to give notification, the Court of Final Appeal examined the discretionary powers that the Commissioner and the police could exercise in restricting the freedom of assembly procession. The court goes on and I quote;

“…In light of that, it would be surprising if after the severance of ordre public from the relevant provisions, the majority of the Court of Final Appeal still regarded some aspects of the statutory discretion concerning unauthorised assembly other than the requirement to give notification to be unconstitutional and made no comment on the same.”

246.  This means the Court of Final Appeal in 2005 considered the constitutionality of not just the notification requirement but so much more, and found all sections relating to the notification scheme constitutional. If they did not, then they would have commented on it.

247.  Therefore, no specific reference to s17A in the Court of Final Appeal decision in Leung Kwok Hung 2005 is neither here nor there. As an integral part of the notification scheme, that is the offence creating section, it has been included in the decision and is binding under the doctrine of stare decisis.

248.  The Court of Appeal in Leung Kwok Hung (No 2) 2020 goes on to state in paragraph 208 when it finds that there are valid and serious public order concerns for an unauthorised assembly in their appeal;

“208.…(1) for those gatherings held without complying with the requisite notification requirement, the justification for imposing criminal sanctions against the same has been explained by the majority in Leung Kwok Hung & Ors v HKSAR;…”

249.  It is clear from that confirmation that S17A was also considered in 2005 to be constitutional. It is worthy of note that even Bokhary PJ, dissenting in 2005, considered the constitutionality of s17A and did not strike it down for being disproportionate, see para 214-5. That comes after his observation that s17A arms each scheme with a “formidable set of teeth capable of biting down with a maximum force of 5 years’ imprisonment”, para 115. Despite the severity of that penalty being a live issue in that appeal, he said no more and did not go on to strike it down for that reason.

250.  The prosecution has referred me to a 1988 article by the Hon Sir Anthony Mason entitled “The use and abuse of precedent” for the Australian Bar Review. In particular, the last paragraph of page 103 and I quote;

“every decision has its ratio decidendi, even the decision for which no reasons are given. Then the case is only authority for what it actually decides, that is, for the proposition of law to be derived from the order of the court and the material facts.”

251.  Clearly in Leung Kwok Hung 2005 the order of the court was to uphold the convictions and the material facts included the entire notification scheme; the sentence and sanction were part of the material facts as discussed in the body of the judgement.

252.  The doctrine of stare decisis is the doctrine of precedent and means “to stand by things decided”. I am of the view that through this doctrine, the principle of law that is established by the Court of Final Appeal in Leung Kwok Hung 2005 is binding on lower courts.

253.  This court cannot now reconsider the constitutionality and proportionality of that section alone just because the defence again raise a systemic challenge to it and focus specifically on the statutory purpose of that section. I agree with the prosecution that this challenge is precluded by that Court of Final Appeal decision in 2005.

254.  The defence did rely on what Poon CJHC said in his judgement in the Matter of the Application of Mr David Perry, QC, to be approved, admitted and enrolled as a barrister of the High Court of the HKSAR for the purposes of prosecuting this trial. In that judgement, (2021) HKCFI 113, the defence referred me to particularly paragraphs 11-13.

255.  The submission was that Poon CJHC indicated Leung Kwok Hung 2005 was not binding because there the Court of Final Appeal dealt with a “much narrower challenge than the wholesale attacks now sought to be launched against the constitutionality of s17A as an offence creating provision, the scheme of objection and the appeal mechanism.”

256.  However, the legal issues identified in that application (in paragraph 6) were not in fact raised in this trial. The only issue identified that was raised in this trial was whether criminalising the organisation or participation of a peaceful assembly or procession under s17A of the POO amounts to a disproportionate restriction on the freedom of peaceful assembly or processions. Even then, not by all and not with much vigour or substantive submission.

257.  The court was told the constitutional issues to be raised had not been fully addressed or canvassed by the Court of Final Appeal in 2005. However, the wholesale attack Poon CJHC was told was to be launched in this trial did not materialise.

258.  Mr Jonathan Chang SC for the bar, opposing the application to admit Mr David Perry QC, submitted that the constitutional issues identified had previously been addressed in 2005. He submitted that decision was binding if a constitutional challenge was launched on the notification scheme provisions.

259.  In my view, the defence cannot rely on this submission because what the Court of First Instance was told was materially different to the challenge raised before this court and in any event, I do not agree what was said in the judgment indicated that the 2005 decision would not be binding.

260.  The defence also unanimously submitted that this systemic challenge is in the context of an ultimately peaceful assembly. Much was made of the difference in approach when the unauthorised assembly was peaceful. It is unnecessary for me to refer to all the submissions and the authorities including many from the European Court of Human Rights because of my finding that I am bound by the Leung Kwok Hung 2005 authority.

261.  However, a short answer would have been that the majority of that Court of Final Appeal upheld the convictions when that unauthorised procession was peaceful. If I were to have undertaken a closer examination of this submission, firstly, I would have found that this unauthorised public procession on 18 August 2019 was not without reprehensible conduct. Public order considerations are not confined to just outbreaks of violence but also serious traffic disruption as arose here.

262.  Secondly, there is a distinction in this case in that there was notification but no consent given which is more serious, especially in the light of my finding that there was a prior plan and intent to thwart that ban. It would make no sense and make the law illusory if a prosecution here would be disproportionate because the unauthorised acts were without violence.

263.  I will address the defence submission that the defendants were relying on their right of peaceful demonstration as a lawful excuse. It was submitted that when a defendant says he is acting within the lawful exercise of his freedom of peaceful assembly and it was peaceful then, to establish if he has any reasonable excuse must require an application of the four step proportionality test. The authority of Yeung May Wan & Ors v HKSAR (2005) 8 HKCFAR 137 and DPP v Ziegler (2019) 1Cr App R 454 were cited to support that submission. Ziegler is subject to an appeal pending.  Neither the Ziegler and Yeung May Wan cases were concerned with whether a scheme was constitutional.

264.  In Ziegler, the case concerned an obstruction of the highway by the defendant. In Yeung May Wan, the defendant held a sit in protest on the pavement, she was charged with causing nuisance in a public place. The nature of those charges and their facts are very different to these facts and a s17(A) offence.

265.  In view of my finding that I am bound by precedent and there are no grounds for a constitutional systemic challenge here, then reasonable excuse as a defence for charge 2 would only have succeeded if there was any excuse acceptable to a reasonable person to justify ignoring the ban by the Commissioner of Police.

266.  There are no authorities that suggest an offender may rely on a defence of reasonable excuse when he has knowingly participated in a banned public assembly because it was ultimately peaceful.

267.  Equally, it cannot be right that to arrest and prosecute is disproportionate in this case because no actual violence broke out. That would give the law no teeth and make a mockery of it. It cannot be right for an offender to argue that although his act was unauthorised, (unauthorised because the legitimate aim behind it is public order) but because it was ultimately peaceful and there was no violence he should not be arrested, prosecuted or convicted.

268.  This leads me to the defence submission that the purpose for imposing criminal sanctions against a peaceful assembly procession is to maintain, uphold, enforce or ensure the compliance with the notification system. This was in the context of what would be the legitimate aim for imposing sanctions against peaceful processions. It was suggested that the purpose behind Charges 1 and 2 is limited only to maintaining and upholding the effectiveness of the notification system. This would be to enable the police to make appropriate arrangements to facilitate processions.

269.  The submission here was that this very narrow interpretation of the legitimate aim behind those offences would mean that the restrictions are not rationally connected with the legitimate aim for the purposes of analysing proportionality. It would follow that the restrictions are not proportionate to achieve the legitimate aim. It would also follow that the imposition of criminal sanctions failed to strike a fair balance between the societal benefits and the protected rights of an individual.

270.  It is not necessary for me to analyse the validity of s17A (3) by going through the four step proportionality test from the Hysan Development authority because I am bound by the Leung Kwok Hung 2005 decision but if I had, I would have found that that authority made it clear that the legitimate purpose or aim was identified as public order. It cannot be right that the purpose is only to ensure compliance with the notification system. That is one of the purposes but not the only purpose.

271.  The Court of Final Appeal in that authority made it clear that the legitimate aims of criminalising the participation in or the organisation of an unauthorised assembly are to maintain public order and public safety, and to protect the rights and freedom of others, irrespective of whether it was peaceful in the end.

272.  I would have found that the subject offences are rationally connected with those legitimate aims identified. If not, then the whole notification scheme would be pointless if criminal sanctions are not justified. These would have been the first 2 steps of the four step proportionality test if I had analysed the validity of section 17(A).

273.  I would have agreed with the prosecution that if I had proceeded to the 3^rd step, in view of the safeguards built into the notification scheme and the court’s role in sentencing according to the criminality, the subject offences would satisfy the proportionality test under both the “no more than necessary” and “manifestly without reasonable foundation” thresholds.

274.  I would have rejected the submission above that the imposition of criminal sanctions failed to strike a fair balance between the societal benefits and the protected rights of an individual, the 4^th step. I would have weighed up the societal benefits of effectively implementing the notification scheme against the fact that the sanctions are not mandatory and sentences are more often than not financial penalties.

275.  I will add here that the prosecution did submit that if I did not accept their submission that the systemic challenge was precluded by the Court of Final Appeal decision in 2005, then an examination of the validity of s17A (3) through the four step proportionality test would conclude it was proportionate. I was taken through it in submissions to demonstrate that the constitutional challenge would still fail. I would have found favour in their analysis.

276.  I also do not agree with the submission that a maximum of 5 years’ imprisonment is too severe and would have a chilling effect on those intending to hold or participate in a procession. If I had analysed the proportionality of s17A(3), I would have said it is not a mandatory sentence but flexible and reserved for the worst-case scenario. It is always up to the court to decide on a penalty which is commensurate and proportionate to the facts and the mitigation. Any sentence can be subject to scrutiny in an appeal.

277.  I would have reviewed and been entitled to take into account the many legislative debates in the 1990s on the provisions of the POO in the Legislative Council’s Official Record of Proceedings. Particularly in a debate in December 2000 where sanctions were debated, the severity of the sanctions were debated and even sanctions in similar provisions in overseas jurisdictions were debated.

278.  Many of the defendants before me today were then legislators actively involved in the debate against that motion. That motion was carried by the majority, see Tabs 35-38/Prosecution’s supplemental authorities bundle (A). Penalties are for the local legislature to decide after consideration of relevant factors but also after taking into account the rights of individuals as well as the interests of the society as is evident from various Official Records of Proceedings of the Hong Kong Legislative Council.

279.  As to the numerous references to overseas jurisdictions and authorities to support the submissions, they are persuasive but not binding on Hong Kong Courts. Where matters of disruption to public order are concerned, Hong Kong is unique with its high-density, crowded districts, very different locality issues and even cultural considerations when compared. Not often will situations elsewhere be identical or comparable to that in Hong Kong.

280.  The “chilling effect” of harsh sanctions submission would have had little traction if I had analysed the validity of s17(A). Exhibit P57 is a table compiled from police records relating to the figures for public order events annually, between 2000 and 2020. It sets out the number of notified public meetings held with a Letter of No Objection as well as the number of notified public processions held with a Letter of No Objection. It shows how many meetings have been prohibited and how many processions have been objected to by the Commissioner of Police. Even in 2019, there were a total of 884 authorised public meetings and processions. Without evidence to the contrary, this submission would have failed.

CONCLUSION

281.  After careful consideration of the submissions, I am unable to consider the systemic challenge to the constitutionality of ss. 17A(3)(a) and 17A(3)(b)(i) on the ground that this challenge is precluded by the Court of Final Appeal decision in Leung Kwok Hung 2005. That decision upheld the constitutionality of the scheme under the POO including s17A. That offence creating section must have been in the purview of the Court of Final Appeal therefore, I am bound it.

282.  Accordingly, this systemic challenge must fail.

OPERATIONAL PROPORTIONALITY CHALLENGE

283.  All but the 4^th defendant submits the decision to later arrest those defendants, the decision to prosecute and the subsequent conviction is in violation of and disproportionate to the constitutional guarantees and rights of those defendants. Mr Hector Pun SC for the 4^th defendant appears to have no issue with the arrest but submits a decision to prosecute violates the principle of tolerance and proportionality on an operational level.

284.  It was submitted as relevant to this challenge the fact that there was on the day no warning from the police nor any enforcement action to stop the procession. Also, there was no disruption to traffic or public transport which was due to the defendants themselves; it stemmed from the public meeting in Victoria Park. There was no violence or breach of the peace or reprehensible conduct caused directly by the defendants. The delay of 8 months before arrest is unjustified. The defendants were only exercising their constitutional rights peacefully and the public procession ended peacefully.

285.  Ms Eu submits the Court of Appeal in Leung Kwok Hung (No 2) 2020 laid down guidelines for an operational challenge. In the lead up to these guidelines the Court of Appeal first considered relevant authorities on the permissible restrictions on the fundamental rights of demonstration and expression.

286.  That Prohibition on Face Covering Regulation came into being because, as the Court of Appeal observed “since June 2019, Hong Kong has experienced serious social unrests and public disorders marked by protests, escalating violence, vandalisms and arson across the territory. It is a dire situation that has not been seen in the last 50 years.” para 1.

287.  The Court of Appeal made it clear when either measures that interfered with freedom of assembly or enforcement action taken by authorities were to be subject to a proportionality requirement then, that proportionality analysis has to be applied on 2 different levels. I quote the paragraphs identified as the guidelines;

“182. Thus, the proportionality analysis has to be applied on 2 different levels:

(1) examining the systemic proportionality by reference to the legislation or rules in question;

(2) examining the operational proportionality by reference to the actual implementation or enforcement of the relevant rule on the facts and specific circumstances of a case at the operational level.

183. In these appeals, it should be emphasised that we are only concerned with the first level of challenges. It remains for the court to assess the proportionality on the second level on the facts and circumstances in a particular case if a charge is brought against a person.

184. The Strasbourg Court continued at (155) – (157) in Kudrevicious v Lithuania to identify the need to have measures to restrict conducts causing disruption to ordinary life to a degree exceeding that which is inevitable for peaceful demonstration and assembly. At (155), the Court alluded to 2 important mindsets for striking the balance:

(1) on the one hand, the public authorities have to show a degree of tolerance;

(2) on the other hand, demonstrators should comply with the regulations in force.”

288.  The operational challenge is explained at para 182(2). What is to be operationally proportional is the actual implementation or enforcement if there is any, on the facts and specific circumstances of a case. This must be read in conjunction with paragraph 181 and the Court of Appeal references to Kudrevicius v Lithuania (2016) 62 EHRR 34.

289.  In para 181, it refers to a scenario when a demonstration has not been authorised. It summarises some general observations from Kudrevicius;

“181…..Whilst acknowledging that it is essential to have a system of prior notification, the absence of prior authorisation does not give carte blanche to the authorities in taking enforcement actions. Such actions would still be subject to proportionality requirement. The Court highlighted that though there could be special circumstances which justify the holding of spontaneous demonstrations without prior notification, such exception must not be extended to the point where the absence of prior notification of a spontaneous demonstration can never be a legitimate basis for crowd dispersal.”

290.  In my view, the Court of Appeal is referring to enforcement action against a demonstration on the day, here with specific reference in the last line to crowd dispersal. Public authorities have to show a degree of tolerance in what action they decide to take at the time. Some level of disruption can be inevitable in any demonstration so just that fact alone does not justify an interference with the right to freedom of assembly hence, a tolerant approach is required.

291.  Indisputably, on 18 August 2019 the police took no enforcement action. I am sure for the reasons given by PW4 which meant there was no restriction upon the exercise by the defendants of their rights of freedom of procession and freedom of assembly. There is nothing to subject to an operational proportionality challenge. However, it does not follow that there will be no action taken by the authorities later.

292.  As an illustration, if the police had taken any enforcement action on 18 August 2019 such as warnings followed by more drastic enforcement action such as making arrests, dispersing the crowds, containing the crowds, using pepper spray, teargas or diverting or blocking the procession, then those acts could be subject to an operational proportionality challenge according to para182(2). There cannot be “carte blanche” enforcement action ignoring tolerance and proportionality if the procession was peaceful or disruption minor.

293.  Paragraph 193 considers this principle of tolerance and proportionality on the operational level as discussed in the Kudrevicius case and refers to paragraphs 182-184 quoted above. The Court takes as an example a s17A(2)(a) offence where a public meeting or procession which takes place in contravention of s 7 or s 13 would be an unauthorised assembly. Unless there is violence or other reprehensible conduct on the part of some demonstrators posing serious and imminent risk to public order and safety which requires immediate actions on the part of the police then, in light of the principle of tolerance and proportionality, there should be prior warnings and the issuance and announcement of an order under s17(3) before more drastic actions like arrests and physical dispersal are taken.

294.  This again can only mean with a plain reading that the Court of Appeal contemplates what would be subject to an operational proportionality challenge is any concrete or definitive actions taken on the day that imposes a restriction upon the exercise by the defendants of their rights of freedom of assembly and procession. The same consideration is applied to other offences under s17A as discussed in paragraph 194. Again, it does not follow that there will be no action taken by the authorities later if there was unlawful activity.

295.  In the Kudrevicius case, the demonstration was initially authorised but the farmers protesting about subsidies for the agricultural sector moved their demonstration to a major highway which was not within the specified limits of the permit issued. They intended to cause major disruption. They did cause significant traffic disruption for 2 days. Farmers were arrested, prosecuted and convicted; they were given suspended sentences. They appealed and the European Court of Human Rights, the “ECHR”, held that the criminal convictions were justified as being necessary for pursuing the legitimate aims of prevention of disorder and protection of the rights and freedoms of others and found no violation of the freedom of assembly.

296.  The ECHR found that despite the serious traffic disruption caused, the public authorities displayed a high degree of tolerance. The police did not disperse the farmers and only ordered them to remove the roadblocks and gave them warnings. Clearly they had attempted to balance the interests of the demonstrators with those of the highway users to ensure the peaceful conduct of the gathering and safety of everyone which satisfied any positive obligation they had. The Court ruled the sanctions were not disproportionate in view of the serious disruption of public order and traffic; it was classified as reprehensible acts.

297.  Those farmers in Lithuania had authorisation to protest but in this case there was notification followed by a ban. In this case I can take into account there was also traffic disruption, public transport affected with significant road closures caused by the unauthorised procession, certainly in Wanchai, Admiralty and Central area and even other areas of the territory. This must be relevant in a city as crowded as Hong Kong. These are relevant distinguishing features.

298.  The prosecution in their final submissions MFI-4 submit none of the matters relied on by the defendants can constitute arguable ground for an operational proportionality challenge. Specifically, the subsequent arrest and decision to prosecute are not matters envisaged by the Court of Appeal in Leung Kwok Hung (No.2) 2020 to be subject to the operational proportionality challenge. I agree with that interpretation.

299.  In effect, the defence are submitting that the decision to later arrest defendants and the decision to prosecute as well as a conviction should be subject to a proportionality analysis, the four step test as set out in the Hysan Development case. The prosecution reply to this is that if the systemic challenge has failed and the criminalisation and sanctions of these 2 charges are constitutional then how can it be disproportionate for defendants to then be arrested and prosecuted.

300.  I do not agree with Ms Po’s submission for the 6^th and 8^th defendants that the last few words of paragraph 183 I have quoted above, particularly the words “in a particular case if a charge is brought against a person.” can be interpreted to mean that that charge or the decision to prosecute is open to an operational proportionality challenge and the decision to prosecute should be examined. It just simply means if a person is charged and if there is a challenge, the court can assess the proportionality by reference to the actual implementation or enforcement taken that day on the facts and specific circumstances of that case.

301.  In the submissions from counsel to support their operational challenge on the arrest, decision to prosecute and conviction there was reliance on police action or inaction before 18 August and on 18 August. None of the matters sought to be relied on were relevant to the charges themselves when I found the prosecution proved the charges beyond reasonable doubt but more importantly none of these matters relied on or referred to restricted or limited the rights or freedoms of the defendants relating to assembly or procession.

The Arrest and Decision to Prosecute

302.  I do not agree with the defence that these actions should be subject to a proportionality analysis. The systemic challenge has failed and the relevant sections constitutional. The arrest was therefore lawful. If the propriety, necessity and lawfulness of an arrest is questioned, that will be dealt with on the facts during the course of the criminal trial and not by a constitutional challenge.

303.  Only if there have been restrictions limiting some constitutional rights on an operational level would the court determine the permissible extent of those restrictions applying the 4-step proportionality test.

304.  With respect, I reject the submission that any subsequent arrest is a restriction on a fundamental right. It is suggested the whole essence of an operational challenge means when a man is charged and brought to court, the court looks at all the facts and applies the four step test. I do not agree that that is what the Court of Appeal meant or decided in Leung Kwok Hung (No 2) 2020.

305.  In Hong Kong the decision to prosecute is governed by Article 63 of the Basic Law. The Department of Justice shall control criminal prosecutions, free from any interference. There are very few instances where the Judiciary will interfere with a decision to prosecute unless it can either be demonstrated that the Department of Justice acted in bad faith or in obedience to a political instruction.

306.  I refer to the decision of Hartmann J (as he then was) in RV v Director of Immigration (2008) 4 HKLRD 529 who considered in-depth the question of whether it was appropriate to judicial review the Secretary for Justice’s prosecutorial decisions. He ultimately held that that control of criminal prosecutions is amenable to judicial review but only to the very limited extent that he described. Therefore, in a judicial review the court can determine whether the Secretary for Justice has, or has not, acted within the limits of their constitutional power.

307.  Hartmann J only mentioned 3 particular situations where the Secretary would be regarded as having acted outside the constitutional limits and that would be if either acting in obedience to a political instruction, or in bad faith or there was rigid fettering of prosecutorial discretion. However, that list was not exhaustive of the circumstances in which judicial interference would be justified. It is essentially only in extremely rare situations would a court find a prosecutorial decision unconstitutional. Otherwise, the court should not encroach on the right set out in Article 63.

308.  I have been referred to James v DPP (2016) 1 WLR 2118 by the prosecution. There it was held by the Appeal Court that it is no part of the function of a criminal trial court to rule upon a contention by reference to Articles 10 and 11 of the European Convention on Human Rights that the decision to prosecute was disproportionate, unless it was contended by the defendant that the decision to prosecute was an abuse of the court’s process, itself an exceptional and limited remedy; and that, therefore, the district judge had been right to refuse to consider the defendant’s submission that the decision to prosecute was disproportionate.

309.  The facts of that case are similar to the facts of this case. The defence submits the decision to prosecute in relation to Articles guaranteeing similar freedoms here should be subject to proportionality analysis. I disagree, that decision to prosecute is not an issue for this court to deal with; the task of this court is to try the case on the evidence admissible in a criminal trial.

310.  Therefore, unless the defendants are suggesting that the decision to prosecute was an abuse of the court’s process then it is not the function of the court to decide whether that decision per se is disproportionate. The same principle must apply to the submission that a conviction is disproportionate.

CONCLUSION

311.  After a careful consideration of the submissions, I find no matters raised by any of the defendants that can constitute arguable grounds for an operational proportionality challenge. Accordingly, the constitutional challenge of both s17A(3)(b)(i) and s17A(3)(a) of the POO on an operational level must fail.

IN SUMMARY

312.  I have found after trial the prosecution able to prove beyond reasonable doubt that all of the defendants together organised what amounted to an unauthorised assembly on 18 August 2019. At the same time, the prosecution has proved beyond reasonable doubt that they all knowingly participated in that unauthorised assembly.

313.  Accordingly, and despite the clear records of all bar the 4^th defendant, I find the 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th and 8^th defendants guilty of both Charges 1 and 2.

314.  I did go on to consider the constitutional challenges. The systemic challenge fails for the sole reason that this court is bound by the decision made by the Court of Final Appeal in Leung Kwok Hung 2005. The constitutionality of s17A was decided in that authority and a binding precedent.

315.  The operational challenge fails for the sole reason that there were no matters relied upon by the defendants that could constitute good and arguable grounds for an operational proportionality analysis as envisaged by the Court of Appeal in Leung Kwok Hung (No 2) 2020.

316.  The decision to prosecute remains the sole authority of the Department of Justice according to the Basic Law; there were no grounds raised to justify an interference with that decision.