HKSAR v. CHOW NOK HANG AND ANOTHER

FAMC Nos. 39, 44 and 45 of 2012

FAMC No. 39 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2012 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 193 OF 2012)

____________________

_________________________

D E T E R M I N A T I O N

_________________________

Mr Justice Chan PJ:

1.  In this case, the defendants were charged in the alternative under section 17B(1) and section 17B(2) of the Public Order Ordinance[1] in respect of conduct involving disruption of a public meeting.  Those sections provide as follows:

“Section 17B Disorder in public places

(1) Any person who at any public gathering acts in a disorderly manner for the purpose of preventing the transaction of the business for which the public gathering was called together or incites others so to act shall be guilty of an offence and shall be liable on conviction to a fine of $5000 and to imprisonment for 12 months.

(2) Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any writing containing, threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on conviction to a fine of $5000 and to imprisonment for 12 months.”

2.  Both the magistrate, Mr Marco Li,[2] and on appeal, Barnes J,[3] noted a tendency for more physically aggressive means to be adopted during public protests.  Each convicted both defendants.  However, they differed as to which of the aforesaid offences was the more appropriate.  We consider it desirable and of sufficient importance for the matter to be examined by the Court.  We accordingly give leave to appeal in respect of the following question:

“What are the elements of the offences created respectively by section 17B(1) and section 17B(2) of the Public Order Ordinance?”

3.  At the hearing of these applications, surprisingly, counsel for the defendants did not make any submissions in relation to the s.17B(2) offence and counsel for the prosecution did not make submissions in relation to the s.17B(1) offence, although, as we understand it, the defendants are seeking to overturn the convictions on the s.17B(1) offence and the prosecution is asking to restore the convictions on the s.17B(2) offence. In the appeals for which leave is now granted, we expect all parties to address the Court on both offences.

4.  We wish to emphasise that the grant of leave in this case must not be taken to suggest that the Court will condone non-peaceful protest.