HKSAR v. LAI CHEE YING AND OTHERS

CACC 84/2021, [2023] HKCA 971

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

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 84 OF 2021

(ON APPEAL FROM DCCC NO 536 OF 2020)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Macrae VP (giving the Judgment of the Court):

A.  Introduction

1.  The seven applicants (who we shall continue to refer to individually in this judgment by their trial designations as D1, D2, D3, D4, D5, D6 and D8) were charged, together with two other defendants (D7 and D9), with two offences, namely:

(a)  Organizing an unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance, Cap 245 (“POO”) (Charge 1); and

(b)  Knowingly taking part in an unauthorised assembly, contrary to section 17A(3)(a) of POO (Charge 2)[1].

They stood trial before HH Judge Woodcock (“the judge”) in the District Court.

2.  The seven applicants were convicted after trial on 1 April 2021. On 16 April 2021, the applicants (together with D7 and D9, who had earlier pleaded guilty) were sentenced to various (immediate or suspended) terms of imprisonment[2].

3.  For present purposes, all of the applicants have sought leave to appeal against their convictions; while four of the applicants (D1, D2, D4 and D5[3]) have also sought leave to appeal against their sentences[4]. On 25 November 2021, having considered the available dates of all counsel involved, a 3-day application for leave to appeal was fixed to be heard by this Court on 28, 29 and 30 November 2022. On 30 November 2022, we reserved our decision on all matters, indicating that we would hand down our judgment in due course.

B.  Background to the offences

4.  By a notification[5] dated 12 August 2019[6] (“Notification”) duly presented to the Commissioner of Police (“CP”), the Civil Human Rights Front (“CHRF”) indicated its intention to hold a public event on 18 August 2019 (referred to at trial interchangeably as the “818 meeting”[7], “818 procession”[8] or “818 operation”[9]), which aimed “to protest against the abuse of power by the Police” with an estimated 300,000 participants[10]. A person by the name of Figo Chan was the named organizer in the Notification (with D9 nominated to act in his place).

5.  Essentially, there were two components to the public event:

	Time	Nature and location
(i)	10 am – 6 pm	A Meeting at Football pitches 1-6, Victoria Park, Causeway Bay
(ii)	3 pm – 7 pm; 5 pm – 11:59 pm	A Procession from Victoria Park, Causeway Bay to Chater Road, Central; and a Meeting at Chater Road, Central

6.  On 14 August 2019, a liaison meeting (“the Liaison Meeting”)[11] was held between CHRF representatives and the Police. None of the applicants was present. As a result of the Liaison Meeting, an amended Notification[12] was filed by CHRF setting out the precise route of the procession in the following way[13]: “Victoria Park [starting point] > South Boulevard, Victoria Park > across the basketball courts, Victoria Park > via Gate 15, Victoria Park > across Causeway Road > Causeway Road > Leighton Road > Irving Street > Pennington Street > Yee Wo Street > Hennessy Road > Queensway > Queen’s Road Central > Des Voeux Road Central > Des Voeux Road Central near the junction with Pedder Street > Chater Road Pedestrian Precinct [finishing point]”.

7.  On 15 August 2019, a letter was issued on behalf of CP[14] to Figo Chan notifying him that, in respect of the above two components of the public event:

(a)  CP did not object to the holding of (i), while at the same time imposing a total of six conditions[15], one of which was that CHRF should arrange 200 marshals of its own to provide assistance throughout the public meeting; and

(b)  CP objected to, or prohibited,[16] the holding of (ii), having regard to “the interest of public safety, public order and the protection of the rights and freedom of others”, with specific reference to three factors set out in the same letter[17].

8.  On 16 August 2019, an Operational Order[18] was issued by the Police, which aimed “to adopt a flexible and facilitating approach for this event”. At 4 pm that same day, a press conference was held by Chief Superintendent Tse[19], during which it was made known to the public that the procession was banned by the Police. Later that day, CP’s decision (at [7(b)] supra) was upheld by the Appeal Board on Public Meetings and Processions (“Appeal Board”), and Figo Chan was duly informed of the decision in writing[20]. The Appeal Board’s determination was never made the subject of any judicial challenge.

9.  Consequently, a total of three press interviews were held by CHRF on 16 August 2019 (“the 1^st Press Interview”[21]), 17 August 2019 (“the 2^nd Press Interview”[22]), and 18 August 2019 (“the 3^rd Press Interview”). In particular, at the 2^nd Press Interview, the Police were criticised for not arranging for the dispersal of crowds from Victoria Park; pro-democracy councillors would accordingly be arranged to lead the participants to leave Victoria Park. It was said that the meeting would be conducted by a “water flow pattern”. An appeal was also made to the public to fill up Victoria Park.

10.  The procession began on at 3:09 pm on 18 August 2019[23], along essentially the same route as planned. The applicants led a huge crowd and carried a large banner printed with the words, “Stop the police and gangsters from plunging Hong Kong into chaos, implement the five demands”.

11.  The course of the procession was captured on various open source video footage[24]. The applicants were arrested some 8 months later on 18 April 2020[25].

C.  The prosecution case

12.  The prosecution contended that the applicants not only took part in, but were the organizers of, the procession, since they acted as its leaders throughout, and carried a banner with words emblazoned on it showing their common purpose. It was also alleged that the procession was organized, and took place, with their full knowledge of its unauthorised nature.

13.  As to the meaning of “organizing”, the prosecution relied on the 1950 majority decision of the King’s Bench Division of the High Court of England and Wales in Flockhart v Robinson[26], the headnote to which states, inter alia, that “as the essence of a procession was that it proceeded along a route, the person who directed its route was the person who organized it”.

14.  At trial, the prosecution called eight police witnesses and a Station Manager of the MTR (“PW9”)[27]. Also adduced, under section 65B of the Criminal Procedure Ordinance, Cap 221, were the witness statements of (i) a senior officer from the Transport Department (“PW10”)[28] (in order to show the disruption to the traffic and public transport which had been occasioned by the procession), who was tendered for cross-examination; and (ii) Senior Inspector Lam[29] (to produce the figures for public order events between 2000 and 2020), who was not called to give live evidence.

D.  The defence case

15.  None of the defendants/applicants elected to testify or call witnesses. Their principal contentions at the trial may be summarised in these terms:

(a)  None of them was the named organizer on the Notification to CP; hence they could not be said to have committed Charge 1[30].

(b)  Absent any crowd management control plan implemented by the Police, the organizers resorted to plan and carry out their own dispersal plan, as distinct from an authorized procession. Their plan was also made known to the Police and the public in advance. Accordingly, the organizers had lawful authority or reasonable excuse to act as they did; if not, then they could be said to have acted out of necessity.

(c)  The subject offences could not stand constitutional challenge on both systemic and operational levels[31]. In particular, the ratio decidendi of the 2005 decision of the Court of Final Appeal in Leung Kwok Hung & Others v HKSAR[32](“Leung Kwok Hung (2005)”) concerned the constitutionality of the statutory notification scheme under POO, not that of section 17A per se, let alone the proportionality of the maximum penalty of 5 years’ imprisonment[33]. It was also contended that the constitutional challenges should be considered in light of the distinction between a peaceful and non-peaceful assembly[34].

E.  Reasons for verdict

16.  The judge accepted the evidence of PW6, who observed the applicants’ arrival and conduct in Victoria Park on the day in question between 1 pm and the commencement of the procession[35]. Relying also on her own observations from the video evidence showing the event in progress, the judge found that it “can only be described as a public procession”[36] because:

(a)  the defendants were the ones who carried the banner and led the crowd to march[37] (although D3 did not join the march until 3:21 pm[38]);

(b)  during the procession, the defendants chanted slogans, or repeated or echoed the slogans chanted by the others[39]. Examples included, “I have the right of procession. No police permission is required”, and “I have the right to protest”[40]. D2 also falsely claimed to the crowd that “it’s a free marching day in Hong Kong today”[41];

(c)  at the end of the procession, D2 thanked participants for taking part in the procession[42], while D4 and D5 stood by in close proximity[43].

17.  The judge also found that, contrary to what was described as a water flow dispersal system:

(a)  there was no evidence that overcrowding was an imminent hazard before 3 pm[44];

(b)  there was nothing to show any word spoken, or assistance given, by the defendants to the crowd so that they might leave the procession safely[45];

(c)  it was only at the conclusion of the procession that D2 mentioned for the first time to the crowd, “you are welcome to disperse using the MTR station here”[46].

18.  Accordingly, she found that “there was an unauthorised public assembly from Victoria Park to Chater Road … organized for a common purpose [as] set out in writing on the banner”[47]. She rejected the defence contention that it was a dispersal plan borne out of necessity[48].

19.  In convicting the applicants of Charge 1, the judge applied the principle in Flockhart v Robinson and held that they had ‘organized’ the unauthorised assembly because they “form[ed] the banner party” and “agreed to be the head of the procession and led the direction in which the procession was to proceed”[49].

20.  The judge accepted the prosecution submission that it was inconceivable that someone who actually organizes an unauthorised public meeting or procession could act with lawful authority or reasonable excuse, which defence, she found, was not available on Charge 1; or, even it was, it could not be established on the evidence[50].

21.  In convicting the applicants of Charge 2, the judge had regard to the widely broadcast Police objections beforehand[51], the applicants’ words and/or conduct prior to and during the procession, and the fact that “all of the defendants have ties to democratic parties or support the pro-democracy movement, many were well-known legislators (or) very experienced lawyers”[52]. The judge found that the applicants knowingly took part in the procession[53], “in direct defiance of the police ban”[54], and with an intention “to deliberately flout the law openly”[55].

22.  In rejecting the defence of lawful authority or reasonable excuse under Charge 2, the judge reasoned that[56]:

“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.”

23.  The judge also held that the defence of reasonable excuse “would only have succeeded if there was any excuse acceptable to a reasonable person to justify ignoring the ban by the Commissioner of Police”[57]; and the defence could not be relied upon on the basis that one “knowingly participated in a banned public assembly (which) was ultimately peaceful”[58].

24.  On the question of systemic proportionality, having extensively considered the decision of the Court of Final Appeal in Leung Kwok Hung (2005), the judge found, notwithstanding there was “no specific reference to s17A”[59], which she described as “an integral part of the notification scheme”[60], that[61]:

“…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.”

25.  She concluded[62]:

“This court cannot now reconsider the constitutionality and proportionality of that section [i.e. section 17A] alone just because the defence again raise a systemic challenge to it and focus specially on the statutory purpose of that section.”

26.  The judge held that, had there been a distinction between a peaceful and non-peaceful assembly, she would have found that the unauthorised procession in question was not without reprehensible conduct, which would encompass serious traffic disruption[63].

27.  The judge also pointed out “(because) on 18 August 2019 the police took no enforcement action …(it) does not follow that there will be no action taken by the authorities later”. She went on to say that “what would be subject to an operational proportionality challenge is any concrete or definitive actions taken on the day”[64].

28.  Having considered Leung Kwok Hung v Secretary for Justice (No 2)[65] (“Leung Kwok Hung (No 2)”) and Kudrevicius v Lithuania[66], the judge found that none of the matters raised by the defence could constitute arguable grounds for an operational proportionality analysis to be carried out. Nevertheless, she went on to point out that the lawfulness of arrest could be a matter resolved in the criminal trial in the usual way and should not be made a separate constitutional challenge[67], rejecting also the submission that an arrest is a restriction on a fundamental right[68]. As to the decision to prosecute, the judge noted that such decision rests on the Department of Justice and is governed by Article 63 of the Basic Law (“BL”)[69]. She considered that, absent anything to show that the decision to prosecute was an abuse of the court’s process, it was not her function to decide whether the decision to prosecute and the resulting convictions were disproportionate[70].

F.  Reasons for sentence

29.  As we have said, the appeal against sentence only relates to D1, D2, D4 and D5. The judge noted that the particular applicants were 73, 64, 65 and 66 years of age respectively; save and except D4, the others had no previous convictions at the time of the offences. In considering the appropriate sentencing options, the judge took into account certain aggravating features of the present case[71]:

(a)  there was an inherent risk of the procession (despite in fact being a peaceful one) breaking into violence;

(b)  the authority of the police, as well as law and order generally, were subject to direct challenge by the defendants;

(c)  a conscious decision to break the law by well-known figures such as the defendants had an influence on the public;

(d)  the procession was of a massive scale and it was long-lasting; and

(e)  the procession caused significant disruption to roads.

30.  For the purpose of the ensuing argument, it may be relevant to recite two passages concerning a popular local singer’s comments, to which the judge averted in her Reasons for Sentence[72]:

“This intention (a premeditated intention to commit both offences) was succinctly verbalised by a Hong Kong-based singer and actress interviewed by a news channel immediately after the banner was laid down by the defendants on Chater Road outside the Court of Final Appeal at what was declared as the end of the procession. In exhibit P35, a media outlet ‘HK01’ interviewed this participant in the procession at 4:48pm and she explained the procession was a way to get around the ban.

This interviewee said there was no choice but to use a different method if a public procession was not allowed. She said it showed how flexible and elastic Hong Kong people were if banned. It was not a public procession but only people leaving Victoria Park. She was not speaking for the defendants but it shows a participant knew it was not a dispersal plan for safety reasons.”

31.  In respect of Charge 1, the judge took a starting point of 18 months’ imprisonment in the cases of D2 and D4 (who were described by the judge as “very vocal”), and 15 months’ imprisonment in the cases of D1 and D5[73].

32.  In respect of Charge 2, the judge took the same starting point of 12 months’ imprisonment in the case of all four applicants.

33.  In light of their ages and clear records (and health issues in the case of D1 only), the judge gave D1, D2 and D5 a reduction in sentence of 3 months’ imprisonment[74]. By reason of D2’s commitment and contribution to public service and D5’s positive good character, the judge gave D2 and D5 a further reduction in sentence of 3 months’ and 4 months’ imprisonment respectively[75]. However, no reduction in sentence was granted to D4, who had “a good number of previous convictions”[76].

34.  Using the sentence in respect of Charge 1 as the anchor, to which the judge ordered the sentence on Charge 2 to run concurrently, the resulting sentences thus became:

(a)  D1: (15 less 3 months) = 12 months’ imprisonment;

(b)  D2: (18 less 3 months less 3 months) = 12 months’ imprisonment;

(c)  D4: 18 months’ imprisonment;

(d)  D5: (15 less 3months less 4 months) = 8 months’ imprisonment.

G.  An overview of the grounds of appeal against conviction

35.  There are in total some 28 perfected grounds of appeal against conviction. The Perfected Grounds of Appeal themselves and the original written submissions elaborating or resisting those grounds comprise more than 250 pages. We shall set out each of the grounds in turn, and then condense them into five questions under Section H, since they are closely related and there is a significant measure of overlap.

36.  Ms Audrey Eu SC, with her Mr Edwin Choy SC, Mr Jeffrey Tam and Mr Ernie Tung, for D1 both before us and at trial, has advanced no less than 7 grounds of appeal in respect of conviction, which, she starkly asserted, was occasioned by “the police … deliberately setting a trap for thousands of unwary participants”[77]:

(a)  Ground 1: the judge erred in finding that D1 was involved in a deliberate plan to flout the law and thwart the ban, by:

(i)  wrongly attributing various conduct and words of others, including the CHRF representatives, to D1 who was, however, not shown to be a member of, or have affiliation with, CHRF;

(ii)  failing to consider the evidence that CHRF contemplated a “water flow” arrangement, with which the Police agreed to co-operate (although describing it differently as a “tidal flow” arrangement)[78], in order to alleviate overcrowding; and

(iii)  taking into account matters which were irrelevant or inadmissible, including her observation that “Figo Chan did not even pay lip service to instructions given to him by PW6”[79], and hearsay evidence in respect of the statement made by a local singer at the end of the procession.[80]

(b)  Ground 2: the judge erred in rejecting the defence suggestion of a dispersal plan by not giving proper weight to the background of the offences, and not making sufficient findings as to whether D1 had the necessary mens rea.

(c)  Ground 3: the judge wrongly applied the concept of ‘organizing’ in Flockhart v Robinson to the facts of the case, where the procession was led by the CHRF marshals, not the defendants. Notwithstanding that D1 did not chant any slogan or make any public speech at all, the judge erred in attributing the conduct of other defendants (and non-defendants) to him, whom she wrongly characterised as an ‘organizer’, which finding was also inconsistent with her implied acceptance that D1 was merely a follower (when she found “there were express instructions from the organizers to follow those leaders out of Gate 17”[81]).

(d)  Ground 4: the judge failed to heed all relevant matters on which the defence relied, including the fact that D1 was exercising his constitutional right, and failed to find that he had lawful authority or reasonable excuse for taking part in the procession.

(e)  Ground 5: the judge misunderstood the ratio of Leung Kwok Hung (2005), which concerned a ‘no notification’ situation, and in which the proportionality of the maximum 5 years’ imprisonment was never determined, and hence she unfairly precluded the defence from mounting the relevant constitutional challenge against section 17A(3).

(f)  Ground 6: the judge failed to resolve the challenge in terms of proportionality in the context of an ultimately peaceful assembly.

(g)  Ground 7: the judge erred in finding that the charges and the resultant convictions of D1 were operationally proportionate. Her evaluation also failed to deal with the “inaction” of the Police and the subsequent arrest and prosecution of D1.

37.  Mr Philip Dykes SC[82], with him Mr Chris Ng, for D2 and D5 both here and below, formulated 4 grounds of appeal against conviction:

(a)  Ground 1: the judge erred in her findings as to “common purpose”, which, even if there was such a thing, was intended to facilitate crowd dispersal.

(b)  Ground 2: the judge failed to consider the evidence that the CHRF representatives had widely and repeatedly indicated their intention of facilitating crowd dispersal, as distinct from organizing a public procession.

(c)  Ground 3: the judge wrongly rejected the defence of necessity in respect of both charges, despite the inaction of the Police in facilitating crowd dispersal. In particular:

(i)  there were no detailed dispersal measures in the Operational Order[83], whilst dispersing via the nearest MTR stations was not a feasible or viable solution[84];

(ii)  the Police were derelict in performing their statutory duties under section 10 of the Police Force Ordinance, Cap 232, as well as those arising from section 6 of POO[85]; and 

(iii)  further, in respect of Charge 2, acting out of necessity could by itself constitute a reasonable excuse[86].

(d)  Ground 4: the judge erred in finding that D2 and D5 had the necessary mens rea or had knowingly participated in an unauthorized assembly, notwithstanding that what happened on the day would appear to show that the Police were approving the organizers’ exit strategy[87].

38.  Mr Ambrose Ho SC, with him Mr Isaac Chan and Mr Jason Ko[88], who acted for D3 at both the appeal and trial, put forward no less than 8 grounds of appeal against conviction:

(a)  Ground 1: the judge misread the judgment in Leung Kwok Hung (2005). The Court of Final Appeal had intentionally left open the challenge against some aspects of the (notification) scheme[89]. The judge therefore erred in thinking that Leung Kwok Hung (2005) precluded a systemic review of section 17A(3) of POO.

(b)  Ground 2 (which may be read together with Grounds 3 and 8, since they all concern an argument in relation to operational proportionality): the judge failed to apply her mind to all forms of operational interference (including measures taken before, during and after the procession[90]) in circumstances where she held there was no concrete or definitive action taken by the Police. In particular:

(i)  the recent decision of the Supreme Court of the United Kingdom in DPP v Ziegler[91] (“Ziegler (SC(E)”) explicitly stated the opposite view (at [94] therein), namely whether an action gave rise to no disproportionate interference “may have to be answered in a situation in which the police were never called and therefore never intervened”[92]; 

(ii)  the judge unfairly refused to allow a defence application to adduce expert evidence[93] on matters which she described as a “critique of the police operations”, and prevented the cross-examination of police witnesses[94], although it was relevant to explore the planning, operation and deployment of the Police and the objective effect of the procession[95].

(c)  Ground 3: the judge failed to hold that D3 had made out the defence of lawful authority or reasonable excuse to Charge 2, albeit that there was an unlawful interference with her rights under Article 27 of BL (“BL 27”) and Articles 16 and 17 of the Hong Kong Bill of Rights (“BORs 16 and 17”).

(d)  Ground 4: the judge failed to hold that the defence of ‘without lawful authority or reasonable excuse’ could be read into Charge 1.

(e)  Ground 5: the judge failed to evaluate all evidence relating to the circumstances before and during the event in question (and yet considered irrelevant matters and even misdirected herself), thereby erring in her conclusion as to the ‘common purpose’ for which the event was organized.

(f)  Ground 6: the conviction of Charge 1 could not be substantiated both in law and in fact: not in law, because Flockhart v Robinson was decided in the context of a different statutory scheme (and was thereby inapplicable to POO[96]), for which the word “organize” should be given its natural and ordinary meaning[97]; nor in fact, because there was no evidence to show that D3 was involved in planning the procession or deciding its route, or that he had reached a prior agreement with other defendants on these matters.

(g)  Ground 7: the judge erred in finding that D3 had the necessary mens rea in respect of both charges. In particular:

(i)  the judge “inconsistently and inexplicably” adopted double standards in finding that D3 must have had knowledge of “the wide news coverage of the police objection”, whilst accepting the evidence of the police witnesses that they were not aware of the content of the dispersal plan, which was also widely broadcast and reported; and

(ii)  when the conduct of the Police was looked at objectively, there was no hint from them at the time of the procession that it was unauthorised.

(h)  Ground 8: the judge should have found that the resulting convictions in respect of both charges were a disproportionate interference with D3’s fundamental freedoms under BL 27 and BORs 16 and 17. Reliance was placed on Ziegler (SC(E)), in which Lord Hamblen and Lord Stephens JJSC (at [57] therein) held that arrest, prosecution, conviction and sentence are all restrictions (within Articles 10 and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms). He submitted that the same restrictions are subject to scrutiny under Hong Kong’s own legal framework[98].

39.  As for D4, it should be stated at the outset that those acting for him were unable to file any Perfected Grounds of Appeal or written submissions until some 3 weeks before the appeal hearing. This was not acceptable, although it appears not to have been the fault of counsel. Mr Hectar Pun SC, with him Mr Anson Wong, for D4 here and below, has advanced two grounds of appeal against conviction:

(a)  Ground 1: the judge should have ruled that section 17A(3) was systemically unconstitutional. Emphasis was placed on the third step of the proportionality test[99].

(b)  Ground 2: the judge should have found that the convictions of D4 would constitute a disproportionate interference with his right of peaceful assembly and hence were unconstitutional on the operational level.

40.  Mr Robert Pang SC[100], with him Mr Geoffrey Yeung and Mr Simon Kwok, who were also defence counsel at trial, and Ms Velda Yau, for D6 and D8, has advanced no less than 7 grounds of appeal against conviction:

(a)  Ground 1: the judge failed to consider the relevant evidence, which tended to show that the dispersal plan, even if found to be a procession, was impliedly consented to, or acquiesced in, by the Police. Their implied consent or acquiescence also gave rise to the existence of lawful authority or reasonable excuse, which the prosecution failed to negate.

(b)  Ground 2: By reason of the same point of implied consent or acquiescence, reasonable persons such as D6 or D8 would have honestly believed that what they did was lawful, hence they lacked the necessary mens rea for the commission of Charges 1 and 2. In that regard, the judge should not have taken judicial notice of their backgrounds so as to make findings as to what they should have known[101].

(c)  Ground 3: The judge erred in finding the applicants were the organizers of the procession, which proceeded along a route determined by the CHRF, of which neither D6 nor D8 was a member, and which was led by CHRF marshals.

(d)  Ground 4: The judge erred in rejecting the proposition that D6 and D8 were in fact effecting a dispersal, and were even doing so on behalf of the Police.

(e)  Ground 5: The judge erred in finding that the defence of lawful authority or reasonable excuse was not established in respect of Charge 2.

(f)  Ground 6: The judge gave insufficient consideration to the question of operational proportionality and wrongly limited herself to enforcement action taken on the day of the procession.

(g)  Ground 7: The judge wrongly refused to hold that section 17A(3) of POO was unconstitutional, when the maximum sentence for the offence was disproportionate and the defence of lawful authority or reasonable excuse was lacking in Charge 1.

H.  The five arguments

41.  The grounds of appeal set out above in Section G can conveniently be reduced into five questions:

(a)  What is the meaning of “organizing” on a proper interpretation of section 17A(3)(b) of POO? In any event, was the evidence capable of showing that the applicants were the “organizers”?

(b)  Could the defence of lawful authority or reasonable excuse (as is expressly provided in section 17A(a)) also be read into section 17A(3)(b)? 

(c)  Did the judge correctly find, with adequate reasons, that the mens rea of each applicant was established with regard to the evidence in the case and the defence deployed at trial (including the statutory or common law defence(s) insofar as applicable)?

(d)  Was the judge correct in holding that a systemic constitutional challenge on the subject offences was precluded by the decision in Leung Kwok Hung (2005)? If she was not, was she then correct in finding that the same challenge could not succeed?

(e)  Did the judge take into account all relevant matters to enable her to properly analyse the issue of operational proportionality?

I.  Respondent’s submissions on conviction

42.  On the first question, Mr Benjamin Yu SC (with him Ms Priscilia Lam, Ms Karen Ng and Mr Edward Lau), for the respondent both here and at trial, submitted that the word “organize” should be given its ordinary meaning, that is, to form into a whole with mutually connected and dependent parts; to give a definite and orderly structure to; to arrange something involving united action[102]; accordingly, the act of organizing was not limited to an act undertaken before an event happened but extended to any act thereafter[103]. It was accepted that, whilst none of the applicants was a named organizer of the event, they knowingly agreed to form the head of the procession[104]; and whilst not all of them spoke or directed the route, the applicants acted jointly as principal offenders and led other participants throughout[105]. Ms Lam, in advancing oral argument in response to this matter, supported the judge’s finding that the applicants were the organizers: she submitted that it would be contrary to the video evidence to suggest that the procession was led by CHRF marshals[106]. She argued that the applicants had led the procession for an hour and a half and they were effectively holding the procession together. They were well-known figures, who had drawn the crowd together for a considerable period of time, and their presence had created “a rallying effect”.

43.  On the second question, Mr Yu submitted that the offence in Ziegler (SC(E)), which expressly provides a defence of lawful authority or excuse, should be distinguished from Charge 1 in the present case (which does not). He submitted that, whilst the incorporation of such defence into section 17A(3)(a) of POO must be deliberate, it could not conceivably be incorporated into section 17A(3)(b)(i), which is an offence of organizing[107].

44.  On the third matter, Mr Yu submitted, the judge was entirely justified in holding that the Police objection was widely made known to the public, and in relying on the defendant’s words and conduct to find that they knowingly attended the unauthorised meeting so as to defy the law and not disperse the crowd[108]. He further submitted:

(a)  The defendants’ political stance or affiliation was well-known to the public, of which judicial notice could properly be taken[109].

(b)  The judge’s reference to the local singer’s statement (which implicated the defendants) came only in her Reasons for Sentence. There was nothing to show that she relied on the assertions in that statement to convict the defendants[110].

(c)  The reference to Figo Chan not paying heed to PW6’s instructions was made by the judge in the context of assessing whether a dispersal plan was genuinely contemplated by the organizers; if it had been, Figo Chan would have followed instructions and appealed to the crowd to leave[111].

45.  Mr Yu also made the point that, since none of the defendants elected to testify as to their alleged beliefs, the judge could not be criticised for rejecting the defences on which they sought to rely on the basis of the evidence adduced at trial[112]. He submitted that the judge had given adequate reasons for convicting the applicants[113].

46.  On the fourth question, Mr Yu submitted that the decision in Leung Kwok Hung (2005) was binding on the present case and the appeal therefrom. He referred to the procedural history of the authority itself and submitted that the Court of Final Appeal had considered all aspects of the notification scheme including the maximum penalty[114]. It was also contended that, given that one of the purposes of the notification scheme was to maintain public order, there could be no sensible distinction between a “no notification (to the Police)” and a “no objection (by the Police)” situation in terms of a proportionality analysis[115]. Mr Yu noted that the judge had (unnecessarily, perhaps) already gone through the 4-step proportionality test in finding the subject offences were proportionate and constitutional.

47.  In respect of the examination of each step involved, Mr Yu laid stress on the following matters:

(a)  (Step 1: legitimate aim) It was made clear in Leung Kwok Hung (2005) that one of the legitimate aims of criminalising the organization of, or participation in, an unauthorized assembly was to maintain public order, irrespective of whether it was in fact ultimately peaceful.

(b)  (Step 2: rational connection) The imposition of criminal sanctions for any non-compliance with the notification scheme was entirely justified, otherwise the scheme would become illusory and pointless[116]. In light of the public events in 2019, there could be no simple dichotomy between peaceful and violent ones: instead, consideration should be given to the propensity of peaceful public events turning violent, the inefficacy of delayed exercise of police power, and the need for preventive legislation[117]. One could not, with hindsight, downplay the concerns of public order merely because a procession (as here) fortuitously turned out to be peaceful[118].

(c)  (Step 3: proportionality) A more lenient standard of “(not) manifestly without reasonable foundation” should apply to the legislature’s power or choice regarding the maximum penalty for an offence[119]. The maximum penalty, which is for the worst type of case, does not equate to the actual sentence, which should be commensurate and proportionate with the facts of the case and can also be subject to appeal[120]. Whilst the asserted “chilling effect” was more imaginary than real, regard should be had to the preventive nature of the offences and the need to regulate unauthorized public events in a modern age, where a mass of people could gather easily and quickly[121].

(d)  (Step 4: fair balance) A fair balance had been stuck between the societal benefits pursued by the restrictions and the inroads made to the rights of the individuals.

48.  On the fifth and final question, based on his interpretation of Leung Kwok Hung (No 2), Mr Yu submitted that since the present case was concerned with a situation where no enforcement action was taken by the Police (as opposed to a situation where concrete or definitive action was taken by the Police so that restrictions upon the exercise of constitutional rights may come into place), there was nothing to be subject to an operational proportionality challenge. Mr Yu reiterated his submission before the judge that, should the criminalisation and sanctions of the subject charges be judged constitutional, it could not possibly be disproportionate for the defendants to be subsequently arrested and prosecuted[122].

49.  Whether the convictions and sentences themselves would require a separate analysis of operational proportionality, Mr Yu submitted there is no authority in Hong Kong to support the contention that, where the conduct of the defendants was so reprehensible, they could nevertheless escape conviction on the ground of disproportionality[123]. He argued that, where the right to hold a public assembly or procession is not absolute, the corresponding restrictions to such a right must be considered as a proportionate restriction in order to serve the legitimate aim of maintaining public order.

50.  Mr Yu argued that Ziegler (SC(E)) was decided in the context of a different offence. It had been distinguished in subsequent English authorities and was not binding in Hong Kong. It also does not apply to cases where (as is the present) the necessary balance for proportionality has been struck by the terms of the offence-creating provisions – here, a proportionality analysis in terms of a restriction on the freedom of assembly would first be required in the decision-making process resulting in the Police objection (any challenge could be mounted, although none was in fact mounted, by way of judicial review against the Appeal Board’s determination); once the matter proceeded to a criminal trial, proportionality would be satisfied by proving the ingredients of the offences and a further proportionality analysis was not required[124].

51.  Finally, Mr Yu added that the judge should not be criticised for disallowing some questions asked during the cross-examination of police witnesses, for they were repetitively asked and went beyond the knowledge of the witnesses[125].

J.  Grounds of appeal against sentence; and the respondent’s submissions

52.  Counsel for D1, D2, D4 and D5 all complained that their sentences were wrong in principle and manifestly excessive in circumstances where they were said to be exercising their constitutional right of peaceful assembly.

53.  In his submissions in reply, Mr Yu highlighted the following points[126]:

(a)  freedom of assembly and expression are not a “trump card” for the violation of the law;

(b)  given the circumstances of social upheaval present in Hong Kong since June 2019, the inherent risk of violence on the material day could not be underestimated or disregarded;

(c)  the time, place, duration and scale of the procession and all other factors considered by the judge were relevant in determining the appropriate sentence.

Accordingly, it was submitted that the four applicants’ sentences were entirely appropriate and should not be disturbed.

K.  Further submissions from the parties on conviction

54.  On 7 December 2022 (seven days after the conclusion of the hearing), the Supreme Court of the United Kingdom (constituted by seven members of the Court) handed down its judgment in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill[127], clarifying some aspects of its earlier judgment in Ziegler (SC(E))[128].

55.  Accordingly, on 15 December 2022, the Court directed the parties to file further written submissions to supplement their positions on the application of Ziegler (SC(E)) if they wished. On 14 February 2023, the Court also granted leave to the applicants to file a joint submission in reply.

56.  We should briefly state that it was the common position of the applicants that the judge should have carried out a proportionality assessment to ensure that their convictions were compatible with their right of peaceful assembly. It was submitted that the Supreme Court did not in Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill retract its earlier position in Ziegler (SC(E)) that a conviction for participation in a demonstration is a restriction of fundamental rights, and such restriction must be proportionate. On the contrary, the respondent submitted that the ingredients of the offences in question had already struck the proportionality balance under the notification system of POO and no second proportionality assessment was necessary.

L.1.  Discussion (conviction – Charge 1)

57.  One of the consequences of a case where there are multiple defendants (7 at both trial and appeal) and counsel (21 at trial, 19 at appeal), and a multitude of grounds of appeal, is that sometimes the most obvious, and perhaps mundane, point is obscured by a welter of more esoteric legal theory and argument and becomes hidden in plain sight. When the appeal commenced, and before hearing from Ms Eu on behalf of D1, we indicated to the parties our collective concern as judges of the criminal Court of Appeal, having read the voluminous papers in this case, as to the sufficiency of evidence going to prove that any of the applicants had “organized” the procession concerned, as distinct from “taken part” in it. We pointed out that the word “organize” is not a term of art and has no specialised, technical or legal meaning. It is an ordinary English word, which generally connotes some responsibility for, or active participation in, arranging, planning or managing, an action or event.

58.  The prosecution at trial, and the respondent at the appeal, placed considerable reliance on the decision of the English Divisional Court in Flockhart v Robinson. So did the judge. She reasoned as follows[129]:

“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 common sense 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.”

59.  However, the individual judgments, rather than the headnote, in Flockhart v Robinson need to be read and understood with some care. The appeal was dismissed by a majority, with each of the three members of the Divisional Court giving separate judgments and using different reasoning. Before we examine the individual judgments, it is important to understand the facts of the case, which were set out in the Case Stated by the London Chief Metropolitan Magistrate[130].

60.  At about 5 pm on 15 October 1949, there was a lawful public procession by members of the Union Movement, a political organization, within the boundaries of the City of London. The appellant was assistant secretary of the Union Movement and the senior officer of the organization present at the time. The procession dispersed at about 6:45 pm the same evening without incident.

61.  Later that night, the appellant and a number of the members of the Union Movement assembled at Knightsbridge Station, some 2 miles from the City of London in what was termed Metropolitan London, where the appellant distributed copies of the “Union” newspaper to them, and placed members at the edge of the pavement, at regular intervals between Knightsbridge Station and Hyde Park Corner, as part of a sales campaign for the newspaper. At about 9:45 pm, the appellant went to Hyde Park Corner where he met with other officials of the Union Movement accompanied by about 150 members, most of whom had taken part in the procession earlier that day in the City of London. The appellant then walked eastward along the north pavement of Piccadilly, followed by about 150 officials and members of the Union Movement. (Although it is not mentioned in the judgment, it should be appreciated that the walking distance from Hyde Park Corner along Piccadilly to Piccadilly Circus is about 1 mile.)

62.  The 150 persons following the appellant were initially in loose formation and did not give the appearance of a compact body of persons. This was to change, however, when the appellant arrived at the junction of Piccadilly with Down Street, where he made a hand signal for those behind him to stop because of the traffic. Those behind the appellant duly stopped and those further back closed up on those in front of them. When the road was clear, the appellant crossed Piccadilly from the north pavement to the south pavement, followed by members of the organization and continued walking eastwards along Piccadilly in the direction of Piccadilly Circus. The Magistrate found that a public procession of a political character had come into being spontaneously and without any prior arrangement after the body of persons had passed Down Street. (Although it is also not mentioned in the judgment, the walking distance from the junction of Down Street with Piccadilly to Piccadilly Circus is 0.7 mile.)

63.  From Down Street those following the appellant were in a compact body marching in ranks in close formation immediately behind him. At the junctions of Arlington Street with Piccadilly, and St James’s Street with Piccadilly, the appellant signalled on each occasion to those behind him to stop before proceeding when there was a suitable lull in the traffic. The body of persons thereafter continued to follow him.

64.  When the appellant and the body of persons behind him had almost reached Piccadilly Circus, a police inspector confronted the appellant and ordered the group to stop and disperse. The appellant held up his hand and the body of persons behind him came to a halt, before the appellant side-stepped the police inspector by moving into the roadway followed by the body of persons in close formation. He then turned north and marched around Piccadilly Circus followed by the body of persons, singing and shouting political slogans. After they had paraded once round Piccadilly Circus, the appellant gave a directional signal and entered Coventry Street (which leads off Piccadilly Circus in the direction of Covent Garden), followed by the body of persons. At this point, the group were broken up by the police.

65.  It is necessary to understand the distances and places or streets concerned when we examine the judgments of the Court, in particular of the two judges in the majority. For these distances and names would have been well understood by the members of the English Divisional Court; Hyde Park Corner and Piccadilly Circus having existed as well-known London landmarks since at least the early 19^th century (Hyde Park, indeed, for several centuries), as they indeed exist today.

66.  Finnemore J, in his dissenting judgment, emphasised at the outset, a point with which nobody at this appeal would argue, that “[w]hat ‘organize’ may mean must depend on the facts of each case”, and “[t]he mere fact that a person takes part in a procession would not of itself be enough”[131]. He was of the view that the appellant’s actions in leading the group, holding up his hand and signalling to those behind him to stop and proceed and disobeying the order of the police inspector could not be said to amount to organizing the procession which had formed itself spontaneously.

67.  Morris J (later Lord Morris of Borth-y-Gest) came to a different view. He reasoned that when the public procession had come into being spontaneously after the persons had passed Down Street, as the Magistrate had found, the appellant, as the senior officer of the organization present, had “placed himself at the head of that procession of a political character and, having done so, organized it: he directed them and they obeyed him”[132]. He noted that “on many occasions he gave them directions and that on each occasion his direction was followed”[133].

68.  Morris J also found that what had happened earlier in the day in the City of London was not without significance. He concluded[134]:

“Therefore, when the [appellant], being an officer of the Union Movement, placed himself at the head of the procession which came into being in Piccadilly, he was placing himself at the head of people who had been organised by him earlier in the day… the [appellant] there did much the same as he had done earlier in the day when in command of the lawful public procession which he did organise: in each case he marched at the head of the procession and gave words or signs of command which were obeyed.”

69.  Morris J found that the appellant had organized the procession after the pause at the junction of Piccadilly and Down Street: “under the direction and leadership of the [appellant], it continued as a procession along the south side of Piccadilly, and those who formed part of it obeyed the [appellant] over and over again.”  On those facts, Morris J concluded that there was ample evidence to show that the appellant had organized a public procession.

70.  If we pause here, it is clear that Morris J was of the view the appellant had organized an unlawful procession from the Down Street junction onwards; in other words, for a distance of 0.7 mile before Piccadilly Circus and around the Circus until it entered and was dispersed in Coventry Street. It is interesting, therefore, to see how Lord Goddard CJ, the third of the judges of the Court, saw the matter on the same facts.

71.  Having stated that the word ‘organized’ was not a term of art, Lord Goddard CJ held that since a procession is a body of persons moving along a route, the person who organizes the route is the person who organizes the procession. So much is stated as the ratio of the case in the headnote. However, it would appear that Lord Goddard CJ was only prepared on the facts to say that the appellant had organized the procession from his arrival at Piccadilly Circus onwards[135]:

“It seems to me clear that, at any rate from the time when these people reached Piccadilly Circus, the [appellant] was organising the route for the procession to follow, and that they followed it. Therefore I think that there was evidence on which the magistrate could find that he organised a procession, at any rate after these people reached Piccadilly Circus, for he proceeded to take them round the Circus and then into Coventry Street.” (Emphasis supplied)

72.  If that be so, and Lord Goddard CJ made it plain by his use of the qualifications we have emphasised in the above passage, then he seems not to have shared Morris J’s view that the appellant had organized the procession along Piccadilly from its junction with Down Street. Accordingly, Lord Goddard CJ did not make use of, and he certainly did not refer to, the appellant’s leading, signalling or crossing the road from the north to the south pavement between Down Street and Piccadilly Circus to say that he was at that stage organizing the body of persons who followed him. Nor did he mention the appellant’s position as an official in the Union Movement, or the events of earlier that day in the City of London. It seems to have been his view that the appellant could only be said to have organized the group upon his arrival in Piccadilly Circus, at which stage he disobeyed and side-stepped the police inspector and led his followers off the pavement and into the road, around Piccadilly Circus and on into Coventry Street.

73.  It is true that the headnote in Flockhart v Robinson goes on, after stating Lord Goddard CJ’s proposition that the person who directs the route of a procession is the person who organizes the procession, to say[136]:

“…that the events, subsequent to the traffic check at Down Street, in which the procession maintained its formation through the [appellant’s] leadership constituted evidence on which the magistrate could find that the [appellant] had organised the procession…”.

However, that part of the headnote is not what Lord Goddard CJ had said; although, paradoxically, Finnemore J did agree with the proposition, whilst nevertheless holding that the appellant’s actions did not in this case constitute his organizing the procession.

74.  But even if Lord Goddard CJ had said that he was agreeing with Morris J’s reasoning, which he did not (and nor did Morris J say he was agreeing with Lord Goddard CJ’s reasoning, although he did say that he had “come to the same conclusion”), we do not see how this authority assists the respondent in the case before us: if anything, it seems to us to assist the applicants. Unlike the appellant in Flockhart v Robinson, who was a senior official of an organisation having political objects, there was no evidence that any of the applicants were officials, or even members, of CHRF; there was no suggestion that they had played any part in planning the procession or organizing the particular route to be marched, which had already been set out in the Notification some days earlier (see [6] supra); and there was no evidence that they had issued any signals or instructions to those who were following them, either before or during the procession. All they had done was to be at the front of a column of marchers, holding a banner and some of them shouting slogans, in defiance of a police ban (although D3 joined the procession some 14 minutes after the march had commenced). They were obviously there because their faces were well-known and would lend credence to their cause.

75.  We should say that we have given particular consideration to the role of D2 who, as the judge found[137], was walking in front of the banner for most of the way to Chater Road, chanting slogans with a microphone and loudspeaker to which D3, D4, D5 and D9 could be observed responding. Furthermore, when the procession reached Chater Road, he announced to the assembled throng that they had reached Central and could disperse[138]. However, we did not find that leading the chanting of slogans and stating the obvious when the procession reached Central after marching on a route that had been pre-arranged several days earlier led indelibly to the conclusion that he had “organized” the procession, as we apply this term.

76.  With respect, we must take issue with paragraphs 179 and 183 of the judge’s statement of findings (at [58] supra). We do not accept that without the applicants forming the banner party, it is unlikely the procession would have come into being. Nor do we see that because they agreed to head the procession and led it on the route, which had already been determined and notified to the Police, without giving or signalling directions, rendered them all equally guilty of organizing the procession.

77.  It may be noted that the fact that the appellant in Flockhart v Robinson was the organizer of the earlier procession in the City of London; that he was the senior officer of the Union Movement present; that those who joined him in the later procession along Piccadilly were officials and members of the same organization, most of whom had joined the earlier procession, were all significant factors in Morris J’s reasoning[139]:

“…The organizing by the [appellant] of this procession which had come into being required very little time because of the circumstances of the day, because of his relationship to those behind him, and because of their common understanding of his leadership. In my opinion, the facts as found by the chief magistrate show that what he was doing did amount to organizing the procession which had come into being.” (Emphasis supplied)

Unlike the position of the appellant in Flockhart v Robinson, the applicants did not organize the earlier public meeting at Victoria Park: CHRF did. And there was no evidence that the participants in the unauthorised procession were members of CHRF. Even if they were, there was no evidence that any of the applicants held any positions, not to mention senior positions, in CHRF. Absent such evidence, the applicants’ “relationship to those behind [them]” and “the common understanding of [the applicants’] leadership” were wanting.

78.  If a jury had been given the customary direction on inferences and had been asked to decide whether on these facts and in these circumstances, they could infer beyond reasonable doubt that the applicants were the organizers of an unauthorised procession, as distinct from its (admittedly famous) participants, we do not think the jury could have drawn such an inference as the only reasonable inference to draw. Something more than being at the head of a group of people was necessary, as we think was Lord Goddard CJ’s position in the majority in Flockhart v Robinson.

79.  This view of the notion of “organizing” in the criminal law is consistent with the term in other crimes, with which our courts are familiar. In the context of vice establishments, for example, premises are not to be treated as a vice establishment under Part XII of the Crimes Ordinance, Cap 200 unless, inter alia, they are “used wholly or mainly for or in connection with the organizing or arranging of prostitution”[140]. The interchangeable use of the word “organize” with “arrange” in the section and, indeed, in common parlance tallies with the Shorter Oxford dictionary definition, which defines an “organizer” as, inter alia, “a person who organizes or arranges something systematically”. One of the definitions of an “organized crime” under section 2(1) of the Organized and Serious Crimes Ordinance, Cap 455 is that it should involve “substantial planning and organization”. In the realm of drug sentencing, organizers are equated, in terms of culpability, with managers[141].

80.  Under section 15 of the Inland Revenue Ordinance, Cap 112 certain amounts are deemed to be receipts arising in or derived from Hong Kong from a trade, profession or business carried on in Hong Kong. Section 15(1)(bb) states that such deemed receipts include “sums, not otherwise chargeable to tax under this Part, received by or accrued to a performer or an organizer for an assignment of, or an agreement to assign, a performer’s right in relation to a performance given by the performer in Hong Kong…”  The term “organizer” in this context is defined under section 15(8) as:

“a person who obtains a performer’s right in a performance in Hong Kong through arranging the participation of the performer in the performance or managing the performance.”

81.  Under the West Kowloon Cultural District (Public Open Spaces) Bylaw, Cap 601A, a person must not conduct an event in a public open space unless with permission of the West Kowloon Cultural District Authority, or he may be fined. The “organizer” of an event in that context is defined under section 10(10) as:

“a person to whom a written permission has been given by the Authority to conduct the event.”

Even if the term “organizer” may in this context be given a narrow interpretation, which depends on form rather than substance, there is perhaps little or no implication for the present case, since none of the applicants was the named organizer in the Notification. Whether D9 was an organizer, by virtue of being specifically named to act in place of Figo Chan in the Notification[142], is a moot question, since he was convicted of Charge 1 on his own plea and he has not appealed against his conviction.

82.  These examples should not, perhaps, be taken too far, since context may also be important, but they do go to suggest that an organizer must take some responsibility for, or do something active to plan, arrange or manage, an action or event. It is that evidence which we regard as lacking in the case of each of the applicants in this case. Mere presence and participation, even in a prominent position, was not enough.

83.  We note that Finnemore J ventured a definition of the word “organize” in Flockhart v Robinson, which is consistent with the above analysis[143]:

“I think that organizing a procession means something in the nature of arranging or getting up or planning a procession. It is not necessary, of course, for the plans to be made long in advance, or, perhaps, in advance at all. There is certainly no need for persons to meet in a back room and make secret plans. The procession could be organized on the spot in the street …”

Morris J did not seem to dissent from this view; where he differed was in his conclusion as to whether the appellant’s actions amounted to “organizing” the procession.

84.  It will be seen, therefore, that where the three judges in Flockhart v Robinson differed, and none of them was entirely consistent with each other, was whether the actions of the appellant could be said to have constituted “organizing” the procession, and from what particular stage of its progress.

85.  We are not to be taken as saying that the leader(s) of a procession can never be its organizer(s). Much will depend on the evidence, as the case of Flockhart v Robinson itself demonstrates; and on the particular facts of the case, as Finnemore J rightly held. If the argument is that Flockhart v Robinson concerned the appellant’s organization of a spontaneous public procession, while the procession with which we are concerned was clearly pre-planned and in no way spontaneous, we do not see how that helps the respondent. If anything, it distances the applicants even further from a procession which someone else had clearly planned and pre-arranged. An inference that because they were at the front of the procession, they must have organized it (or even assisted in organizing it) is not a realistic or suitable substitute for evidence that they were involved in its organization.

L.2. Conclusion (conviction – Charge 1)

86.  For these reasons, we would grant leave to appeal against conviction by each of the applicants on Charge 1 and, accordingly, allow their appeals.

L.3. Discussion (conviction – Charge 2)

87.  If the answer to Charge 1 was hidden in plain sight, the answer to Charge 2 was ‘the elephant in the room’, which none of the applicants have effectively, with respect, sought to engage or confront. In her reasons for verdict, the judge addressed the obvious question, “Is Leung Kwok Hung & Ors v HKSAR Binding Precedent?”  She was, of course, referring to the 2005 decision of the Court of Final Appeal (concerning D4), in which a majority of the Court held, inter alia, that the statutory notification system in POO is constitutional. In her carefully reasoned judgment, the judge accepted that, while there was no specific reference to the constitutionality of section 17A of POO in the judgment of the Court of Final Appeal, there was reference to it in the earlier Court of Appeal decision from which it emanated, namely, HKSAR v Leung Kwok Hung & Others[144]; in particular in the judgment of Ma CJHC (as he then was)[145]:

“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… It follows from this that s.17A is constitutional as well.”

Ma CJHC’s judgment was endorsed by Yeung JA (as he then was)[146], who formed the majority in the Court of Appeal decision.

88.  The judge noted that the prosecution had submitted that when the Court of Final Appeal in due course held the notification system to be constitutional, it “took into account the criminalisation and the penalty as well”. Moreover, “[i]t did not correct or qualify what Ma CJHC said and that is s17A is constitutional as well”[147]. She went on to observe:

“239. Para 63 of that [the Court of Final Appeal’s] judgment, 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.”

89.  Of these submissions, the judge held[148]:

“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 judgment. 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.”

90.  We respectfully agree with the judge. We further note that in its 2020 decision of Leung Kwok Hung (No 2) (again concerning D4), this Court, differently constituted, observed[149]:

“In this connection, though on the facts of the case the conviction was due to the failure to give notification, the Court of Final Appeal also examined the full range of discretionary powers that the Commissioner and the police could exercise in restricting the freedom of assembly and procession: see the analysis of the statutory scheme and the statutory discretion at [43]-[63]. 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.”

91.  In its decision in Leung Kwok Hung (2005), the Court of Final Appeal had noted that the “technique of incorporating the ICCPR into a statute is an unusual one”[150]. It continued[151]:

“57. As the ICCPR necessity requirement involves the application of a proportionality test, it follows that that test must also be applied in relation to the statutory necessity test. The Commissioner has a discretion to restrict the right of peaceful assembly, by objecting to or by imposing conditions on a notified public procession. In deciding whether and if so what restriction to impose in the exercise of his discretion, the Commissioner must consider: (1) whether a potential restriction is rationally connected with one or more of the statutory legitimate purposes; and (2) whether the potential restriction is no more than is necessary to accomplish the legitimate purpose in question.

58. As discussed above, the conclusion that the proportionality test must be applied is based on the incorporation of the ICCPR necessity requirement into the Ordinance. As has been observed, this is an unusual technique. Even if this technique had not been used, although it is unnecessary to decide the point, the position would appear to be that, by virtue of art.39(2) of the Basic Law, the proportionality test would in any event have to be applied in exercising a statutory discretion that may restrict the right of peaceful assembly. That Article provides that, in addition to the ‘prescribed by law’ requirement, any restriction must not contravene the provisions of the ICCPR as applied to Hong Kong. As the ICCPR necessity requirement contained in art.21 involves the application of a proportionality test, that test would have to be applied by virtue of art.39(2).” (Emphasis supplied)

92.  It should be remembered that the applicants in the present case must have known that the procession was unauthorised and that there was no further judicial review of the Appeal Board’s decision upholding the ban. Therefore, the argument before us must be that notwithstanding that they each knew they had embarked on an activity which was unauthorised, the trial (or appeal) court was still required to conduct an operational proportionality exercise in respect of the arrest, charging, prosecution and conviction of someone who had deliberately flouted a constitutionally approved law. Yet, we do not see the Court of Final Appeal going through such a further proportionality exercise when it upheld D4’s convictions in 2005 for the same offence as Charge 1 under section 17A(3)(b)(i) of POO (save that D4 was there charged with “holding” rather than “organizing” an unauthorised assembly).

93.  It cannot be for individual defendants to make their own assessment of operational proportionality when resolving to deliberately flout a constitutionally upheld law, which has already built into its system the mechanism of proportionality as well as the process of appeal to the Appeal Board; and, if necessary, judicial review of that decision (which was not here undertaken).

94.  We note that the applicants in their joint submission that an operational proportionality assessment was necessary have placed heavy reliance on the decision of the Supreme Court of the United Kingdom in Ziegler (SC(E)), and suggested that the decision of the Court of Final Appeal in Leung Kwok Hung (2005) would have endorsed the Supreme Court’s current approach, viz.[152]:

“In LKH 2005, the CFA did not have operational proportionality in mind. LKH 2005 therefore does not preclude this Court (or the Court below) from conducting a proportionality assessment on the circumstances of this particular case, whether by virtue of the ‘lawful authority or reasonable excuse’ defence or otherwise.”

95.  In the absence of any decision from the apex appellate court of Hong Kong stating whether, and if so how, Ziegler (SC(E)) is applicable in this jurisdiction, or how, if at all, it might alter or affect the long-understood approach in Leung Kwok Hung (2005), we consider that we are bound, as was the judge, by the decision of the Court of Final Appeal in Leung Kwok Hung (2005). Accordingly, we do not consider it necessary to go further and conduct an operational proportionality exercise as now suggested. We are fortified in this view since, despite notification procedures in the other European cases which have been cited to us, none of them involved a mandatory proportionality exercise conducted by the authority concerned and an ensuing protest or procession, which was in violation of the law but said to require an operational proportionality exercise.

96.  If that were the law, we cannot imagine that the Court in 2005 would not have said so; particularly, when, as we have seen, it made specific reference to the various criminal sanctions under section 17 and 17A of POO. In our judgment, there is nothing unconstitutional about section 17A of POO. The law is settled and we are bound by it.

97.  For the sake of completeness, there were other grounds of appeal, which were either points of law that were derivative of, or associated with, the argument that section 17A of POO was unconstitutional; or they were points of law that depended on the facts; or they were purely factual. In respect of those grounds which might be said to be part law and part fact, we reject the argument that the defence of lawful authority or reasonable excuse (or necessity) could conceivably be made out on the facts which were accepted by the judge. In relation to the purely factual complaints, the judge’s conclusion that the water flow defence was a ruse to get around the ban cannot be criticised in any way as being wrong. The evidence was overwhelming, as was the evidence of the applicants’ participation in the unauthorised assembly. We agree with the response of Mr Yu to the five arguments/questions summarised earlier, in particular his answers to the third question at [44]-[45] supra.

L.4. Conclusion (conviction – Charge 2)

98.  The applicant’s applications for leave to appeal against conviction on Charge 2 are refused and their appeals are accordingly dismissed.

M.1. Discussion (sentence)

99.  Only D1, D2, D4 and D5 have appealed against their sentences. D1 had been sentenced to 12 months’ imprisonment on Charge 1, and 9 months’ imprisonment on Charge 2; D2 to 12 months’ imprisonment on Charge 1, and 6 months’ imprisonment on Charge 2; D4 to 18 months’ imprisonment on Charge 1, and 12 months’ imprisonment on Charge 2; and D5 to 8 months’ imprisonment on Charge 1, and 5 months’ imprisonment on Charge 2. In light of our decision on Charge 1, the sentences in respect of that charge must fall away, leaving D1 sentenced on Charge 2 to 9 months’ imprisonment; D2, to 6 months’ imprisonment; D4, to 12 months’ imprisonment; and D5, to 5 months’ imprisonment.

100.  In what was, again, a carefully and fully reasoned set of remarks on sentence, the judge took great care to assess the appropriate starting point for the defendants who had knowingly taken part in the unauthorised assembly and then to individualise the sentences, given the antecedents and mitigating factors of the defendant concerned. We have been greatly assisted by this approach, since not only are we able to judge her assessment of each individual offence, particularly when one charge has now fallen away, but also to understand the individual sentences passed on each applicant.

101.  It is worth setting out the judge’s reasons for deciding that only a prison sentence was appropriate[153]:

“54. I repeat here as I said in my verdict that the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. However, these rights are not absolute and are subject to restrictions ruled constitutional. Those freedoms are enjoyed subject to those restrictions irrespective of a defendant’s politics. The common purpose of the procession as well as the politics and stance of any participant that day on 18 August 2019 are irrelevant to sentencing just as they were irrelevant to the legal issues that arose during the trial.

55. This unauthorised procession did proceed peacefully but we know from experience, in particular in those volatile months in 2019 that when a large number of demonstrators gather, emotions are likely to run high which means those situations have an inherent latent risk of breaking out into violence.

56. We know from the prosecution witnesses that the police were most concerned that unruly elements may be present amongst peaceful protesters who would seize the opportunity to achieve the very objective of inciting or brewing violence. The police then decided to be invisible so as not to provide an opportunity or an excuse for conflict.

57. The present case involved a direct challenge to the authority of the police, law and order. The Commissioner of Police had banned a public procession and a 2^nd public meeting but authorised a meeting in Victoria Park. In a police conference an explanation was given why consent was not forthcoming to the CHRF.

58. Yet, despite that and the risk above, the defendants went on to organise it; all defendants were well known figures that together as the head of a procession were guaranteed to draw a crowd and followers. Influential people can draw a crowd and can wield a certain influence.

59. The fact that these particular defendants made a conscious decision to break the law and challenge public order in this manner during such volatile times was serious. That I find an aggravating factor or the gravamen of these facts I found proved. Actions have consequences for everyone irrespective of who they are. This is more so when I have a duty in sentencing to ensure public order.

60. In addition, I take into account the background behind the commission of these offences. I take into account my finding that the unauthorised assembly was premeditated with prior planning to thwart the police ban. It was made known that there was a plan to circumvent the ban despite calling the procession a dispersal plan or water flow meeting. There were many prior calls publicly for as many people as possible to jam pack Victoria Park and to participate in this water flow meeting. It was no coincidence that the dispersal plan mirrored the timing and route of the banned procession.

61. The scale of the unauthorised assembly is relevant; the procession from Victoria Park to Chater Gardens was on a massive scale and long-lasting. That is notwithstanding I accept there would have been disruptions in the vicinity of Victoria Park from the authorized public meeting. Moreover, as I have noted above, taking into account the circumstances prevailing in Hong Kong at that time, a procession of that size posed an inherent latent risk of possible violence.

62. Therefore, the procession may have been peaceful but there was a significant degree of disruption to roads for hours and public transport routes that stretched across the harbour.

63. As a result, and after careful consideration of the above principles and factors as well as submissions in mitigation, an immediate term of imprisonment is the only appropriate sentencing option.”

102.  In the result, she adopted a starting point of 12 months’ imprisonment on Charge 2. In respect of all four applicants, the judge bore in mind exactly the sort of factors which would be considered in any sentencing exercise for any offence, other than those where the penalty is fixed by law or subject, perhaps, to sentencing guidelines (for example, in cases of drug trafficking). In D1’s case, there were the factors of his advanced age (then 73), clear record and health issues. For these factors, she discounted the starting point by 3 months’ imprisonment, making a resulting sentence of 9 months’ imprisonment. For D2, there was his age (then 64), clear record and career in, and commitment to, public service, particularly in the field of workers’ welfare. For these factors, she discounted the sentence by 6 months’ imprisonment, resulting in a sentence on Charge 2 of 6 months’ imprisonment. In respect of D4, the judge noted that he had numerous previous convictions, albeit none which could be said to be motivated by greed, corruption, anger or dishonesty. However, some of his convictions were for the same or similar offences. Although the judge did not increase the starting point in view of his previous similar offences, for which the applicant may perhaps be somewhat fortunate, she declined to give him any reduction from the starting point. His sentence on Charge 2 remained, therefore, at 12 months’ imprisonment. In respect of D5, the judge bore in mind her age (then 66) and clear record. In addition, she noted that she was a person of positive good character, who had also devoted herself to public service for many years. For these factors, the judge gave her a discount of 7 months’ imprisonment from the starting point, which was perhaps on the generous side but within her discretion, making a sentence of 5 months’ imprisonment.

103.  As we have said, the judge approached sentence in exactly the right way, determining first the seriousness of the offence and the defendant’s individual role and culpability before assessing the effect of his/her mitigating factors. We can see nothing wrong in either her approach to sentence or the way she exercised her discretion in this matter.

104.  It must be remembered that this was not a spontaneous gathering of people, it was a pre-planned procession which was intended, as the judge found, to deliberately flout the law using, and causing widespread disruption to, the various carriageways from Victoria Park to Central[154]:

“10. I found it was not a dispersal plan implemented with the assistance of the defendants but a planned unauthorised assembly to challenge the authority of the police. It was planned in advance, announced in advance but those interviewed stopped short of admitting a plan to break the law. Nevertheless, what was said very publically before the 18 August and what was organized on 18 August was irrefutable evidence when viewed as a whole of a premeditated intention to commit these offences.

…

13. I found the unauthorised assembly caused citywide traffic disruptions and road closures far beyond the vicinity of Victoria Park and the authorised public meeting. The evidence I accepted which was not disputed showed road closures late into the evening that would have affected traffic and road users. Many forms of public transport were either disrupted or diverted on both sides of the Harbour.”

The judge described the procession from Victoria Park to Chater Garden as “on a massive scale and long-lasting”[155], which had “caused citywide traffic disruptions and road closures”[156].

105.  The disruption to the road system in Hong Kong was something first adverted to by the majority in Leung Kwok Hung (2005), where the Court referred to one feature particularly relevant to Hong Kong requiring consideration whenever the Government and executive authorities approached their duty to take reasonable and appropriate measures so as to enable lawful assemblies to take place, which was “its density of population and its relatively narrow streets and roads in urban areas”[157]. In HKSAR v Tai Yiu Ting[158], this Court (as presently constituted) referred to the admittedly longer term disruption cause by the Occupy Central movement in 2014 as “a determined and sustained effort to paralyse the main arterial roads in the very centre of Hong Kong for weeks on end … which went far beyond a matter of inconvenience for ordinary citizens going about their business and trying to earn their living”.

106.  With respect to the applicants’ reliance on the European authorities to which we were taken, they are not concerned with a notification regime such as our own, where there has already been an assessment by the authority of the application, involving an in-built balancing of risk against the fundamental rights of the individual; and an ensuing demonstration or assembly, which is in defiance of the authority’s determination, and thereby unlawful. Nor were they set against a similar background of what the judge termed “the prevailing tumultuous situation of 2019”[159], and “those volatile months in 2019” in Hong Kong, where everyone was well familiar with emotions running high and leading to the “inherent latent risk of breaking out into violence”[160]. One must be cautious and realistic in this context before applying decisions of the European courts to very different facts, as well as the particular circumstances of Hong Kong.

M.2. Conclusion (sentence)

107.  In our judgment, the starting point for, and the sentences in respect of, Charge 2 are unimpeachable. Accordingly, the applications for leave to appeal against sentence on that charge are refused and the appeals dismissed. In view of our decision in relation to the appeals against conviction on Charge 1, in respect of which the sentences must fall away, the resulting sentences on the applicants will remain those passed upon them on Charge 2 only, namely:

D1 - 9 months’ imprisonment;

D2 - 6 months’ imprisonment;

D4 - 12 months’ imprisonment; and

D5 - 5 months’ imprisonment.