Public Order Offences

1793

Chapter 31

PUBLIC ORDER OFFENCES

Sect. Para.

I. Introduction . . . . . . . . . . . . . . . . . 31–1II. Unlawful Assembly, Riot, Affray and Fighting in a Public Place

A. Unlawful Assembly . . . . . . . . . . . . 31–2B. Riot and Riotous Activity . . . . . . . . . . . 31–15C. Affray . . . . . . . . . . . . . . . . 31–26D. Fighting in a Public Place. . . . . . . . . . . 31–34

III. Public Meetings, Gatherings and Processions . . . . . . . . 31–37A. Public Order Ordinance (Cap 245), Part II. . . . . . 31–38B. Other offences under the Public Order Ordinance (Cap 245) 31–60C. Offences under the Summary Offences Ordinance (Cap 228) 31–62

IV. Breach of Curfew . . . . . . . . . . . . . . . 31–68IVA. Closed Areas . . . . . . . . . . . . . . . . . 31–69A

V. Making of ThreatsA. General. . . . . . . . . . . . . . . . 31–70B. Bomb Hoaxes . . . . . . . . . . . . . . 31–71

VI. Desecration of Flags and Emblems. . . . . . . . . . . 31–72VII. Loitering . . . . . . . . . . . . . . . . . . 31–74

VIII. Defamatory Libel . . . . . . . . . . . . . . . 31–76

I. INTRODUCTION31–1The Public Order Ordinance (Cap 245) is the principal piece of legislation in Hong

Kong relating to the maintenance of public order and the control of meetings, proces-sions, unlawful assemblies and riots. The Public Order Ordinance was enacted in 1967.It consolidated into one Ordinance (with enhancements drawn from provisions of legis-lation in force in Kenya, Nyasaland, Northern Rhodesia and Southern Rhodesia) anumber of statutory provisions relating to public order and enacted, with modifications,statutory provisions in respect of the offences of unlawful assembly and riot, both ofwhich were previously offences under the common law. The Public Order Ordinancewas subsequently amended a number of times, with the 1995 amendments being not-able in liberalising the control of meetings and processions to ensure compliance withthe Hong Kong Bill of Rights. The 1995 amendments were, however, declared to beinconsistent with the Basic Law of the Hong Kong Special Administrative Region by theStanding Committee of the National People’s Congress on 23 February 1997 and notadopted as provisions of laws of the Hong Kong Special Administrative Region. TheProvisional Legislative Council enacted in 1997 the present provisions on the control ofmeetings and processions in replacement.

Other offences against public order are found in the Crimes Ordinance (Cap 200),the Summary Offences Ordinance (Cap 228) and the common law.

II. UNLAWFUL ASSEMBLY, RIOT, AFFRAY AND FIGHTING IN A PUBLIC PLACE

A. Unlawful Assembly

(1) Statute

Public Order Ordinance (Cap 245), s 18

Unlawful assembly31–218.—(1) When three or more persons, assembled together, conduct themselves in a disorderly,

intimidating, insulting or provocative manner intended or likely to cause any person reasonably

archboldHK2013-031.fm Page 1793 Wednesday, November 14, 2012 9:51 AM

1794

§ 31–2 Public Order Offences [Chap. 31

to fear that the persons so assembled will commit a breach of the peace, or will by such conductprovoke other persons to commit a breach of the peace, they are an unlawful assembly.

(2) It is immaterial that the original assembly was lawful if, being assembled, they conductthemselves in such a manner as aforesaid.

(3) Any person who takes part in an assembly which is an unlawful assembly by virtue ofsubsection (1) shall be guilty of the offence of unlawful assembly and shall be liable—

(a) on conviction on indictment, to imprisonment for five years; and (b) on summary conviction, to a fine of HK$5,000 and to imprisonment for three years.

[Sub-sections (1) and (3) were amended by s 11 of the Public Order (Amendment)Ordinance (31 of 1970).]

(2) Indictment

Statement of Offence

31–3 Unlawful assembly, contrary to sections 18(3) of the Public Order Ordinance (Cap 245).

Particulars of Offence

AB and CD, on the _______ day of _______, 20___, at ______, took part in an unlawful assembly, inthat they assembled together with each other and with EF and other persons unknown and the persons soassembled conducted themselves in a disorderly, intimidating, insulting or provocative manner [intended orlikely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peaceor will by such conduct provoke other persons to commit a breach of the peace].

See R v Mahroof (1988) 88 Cr App R 317, CA (Eng) as to the need to make it plain inthe particulars if the conduct of persons other than the accused is being relied upon.

(3) Sentence

31–4 The maximum penalty of imprisonment prescribed for summary conviction is abovethe general sentencing jurisdiction of a magistrate under the Magistrates Ordinance(Cap 227).

In sentencing for unlawful assembly, it was a wholly wrong approach to take the actsof any individual participator in isolation. The gravity of the offence was constituted bythe very fact that they were not committed in isolation: R v Caird & Others (1970) 54 CrApp R 499, CA (Eng).

(4) Ingredients of the offence

“Three or more persons, assembled together”

31–5 See R v Mahroof, above, and R v Fleming and Robinson [1989] Crim L R 658, CA (Eng).Where the only person against whom there is evidence of disorderly, intimidating,insulting or provocative conduct are those named in the indictment, the jury should bespecifically directed that if they are not sure that three or more of the defendants wereconducting themselves in a disorderly, intimidating, insulting or provocative mannerthey should acquit all the defendants, even if satisfied that one or more particulardefendants were unlawfully fighting.

A distinction is to be made between the character of the assembly and those whoconstituted it on the one hand, and on the other the purpose of the assembly. It mattersnot whether the purpose of the assembly is lawful or unlawful: HKSAR v Yeung Kin Ping& Others [1997] HKLRD 1008, CFI, following R v Cunninghame, Graham and Burns(1888) 16 Cox CC 420. See also Tse Chung v R [1967] HKLR 452, HC.

31–6 Where a group of persons assembled at a location and only three or more amongstthem conduct themselves in one of the manners described in section 18(1), it is they,not other members of their group who do not conduct themselves, who become anunlawful assembly: R v To Kwan Hang & Another [1995] 1 HKCLR 251 per Macdougall


1795

Sect. II] Unlawful Assembly, Riot, Affray and Fighting § 31–7

VP. Likewise, persons who assembled together for an innocent purpose and conductedthemselves in a peaceable manner would not be turned into an unlawful assembly bythe presence of others who took such unreasonable offence at what the assembledperson said or stood for that onlookers reasonably feared an attack by the unreasonablepersons on the innocent and peaceable ones: ibid. at p 307 per Bokhary JA, applyingBeatty v Gilbanks (1882) 9 QBD 308, DC (Eng).

“Disorderly, intimidating, insulting or provocative manner”

31–7In Brutus v Cozens [1972] AC 854, the question was what was the proper meaning tobe given to “insulting” in s 5 of the Public Order Act 1936 [Eng]. The House of Lordsheld that this was not a question of law at all but a question of fact. The word must begiven its ordinary meaning. This approach was subsequently followed by the DivisionalCourt in Chambers and Edwards v DPP [1995] Crim LR 896 in relation to “disorderlybehaviour” under s 5 of the Public Order Act 1986 [Eng]. It is submitted that the rea-soning of the House of Lords in Brutus v Cozens, above, applies not only to “insulting”but also to other words in the phrase. “Disorderly” was considered in Campbell v Adair[1945] SC( J) 29 to be:

“a word of very wide comprehension … which indicates less aggressive conduct than wouldbe required to constitute a breach of the peace. … The question is not whether the conductof the appellant provoked disorder by leading to disorderly action on the part of others …[but] whether he himself acted in a manner which can be described as disorderly”.

In that case the conviction was sustained as the conduct of the appellant, which tookplace on an omnibus, was so disturbing to the conduct of the omnibus that a passengergot off in disgust before his destination. Unpleasant behaviour and aggressive demean-our of a group of youths, even with the use of swear words, when confronting staff of aconvenience store is not disorderly conduct unless something further occurs (which inthe case was one or more of the youths sweeping goods off a stand by the counter):HKSAR v Chan Ka Chuen Raymond (unrep., HCMA 816/2008, [2009] HKEC 802), CFI.Using abusive language to a police officer was held not to contravene s 5 of the UK’sPublic Order Act 1986 where there was no evidence of alarm or distress: Harvey v DPP(2012) 176 JP 265, QBD. On the other hand, the conduct of 22 people entering a nightclub, sitting quietly together and allegedly waiting for people, would not amount to disor-derly conduct: HKSAR v Tsui Yat Hung (unrep., HCMA 95/1999, [1999] 2 HKLRD F11).

Attempting to photograph under the skirt of a woman is disorderly conduct: HKSARv Cheng Siu Wing (unrep., HCMA 619/2003, [2003] HKEC 1120), CFI. On the otherhand, in HKSAR v Chan Kwai Hung (unrep., HCMA 1108/2008, [2009] HKEC 1710),CFI, it was said that it does not follow that in every situation where a defendant attemptsto take photographs underneath a woman’s skirt he would be guilty of disorderly con-duct; the court must look at the circumstances of the case, who was present, and takeinto account how they reacted. Cf Vignon v DPP (1998) 162 JP 115, DC (Eng); R vHamilton [2008] 1 All ER 1103, [2007] 2 WLR 107, CA (Eng) (where similar conductwas prosecuted in England as conduct outraging public decency); HKSAR v Law SaiHong (unrep., HCMA 177/2008, [2008] CHKEC 555), CFI; HKSAR v Yeung Hin KwongStevens (unrep., HCMA 604/2008, [2008] CHKEC 1128), CFI; and Blackstone’s CriminalPractice 2012 [B11.48] (see also Loitering §§31–74 et seq). Touching a woman’s calveswith both hands when couching underneath a seat on a bus is disorderly conduct:HKSAR v Ng Ho Him (unrep., HCMA 549/2008), CFI. Cf); and Morse v Police [2011]NZSC 45 (where the Supreme Court of New Zealand elucidated further on the mean-ing of “offensive” behaviour in the context of public order legislation, which it took tobe “two sides of the same coin” with “disorderly” behaviour), considering that “[it] isnot sufficient that others present are offended if public order is not disrupted. … Thebehaviour must ... be such as to interfere with the use of public space by any member ofthe public, as through intimidation, bullying or the creation of alarm or unease at alevel that inhibits recourse to the place”. Cf Brooker v Police [2007] 3 NZLR 91, where theSupreme Court of New Zealand held that whether a person was behaving in a disorderly


1796


manner involved an objective assessment of the tendency of the behaviour to disturbpublic order; and Morse v Police [2011] NZSC 45, where the Supreme Court of NewZealand elucidated further on the meaning of “offensive” behaviour in the context ofpublic order legislation, which it took to be “two sides of the same coin” with “disorderlybehaviour, considering that “[it] is not sufficient that others present are offended ifpublic order is not disrupted. … The behaviour must … Be such as to interfere with theuse of public space by any member of the public, as through intimidation, bullying orthe creation of alarm or unease at a level that inhibits recourse to the place:

“Likely to”

31–8 In Parkin v Norman, above, a conviction was quashed because the justices must haveread “likely to” as if it read “liable to”.

“Cause any person reasonably to fear”

31–9 Evidence that any person was put in fear or that any reasonable person might havebeen put in fear in the circumstances of the facts as shown in the evidence adducedmust be found to sustain a charge of unlawful assembly: R v Sit Kwok Chiu & Others[1973–1976] HKC 422, HC; and R v Chow Hon Kit & Others (unrep., 23 February 1990,HCMA 67/1990).

The fact that there has been a breach of the peace is evidence that persons presentfeared it: R v Howell (1981) 73 Cr App R 31, CA (Eng).

The prosecution, however, did not necessarily have to call evidence from bystandersto testify that they had been in fear that there would be a breach of the peace. Thecircumstances described by those involved (including the conduct of the defendants)would usually be sufficient and particularly so where the particulars alleged that thedefendants’ conduct was likely to cause any person to reasonably fear the occurrence ofa breach of the peace: R v To Kwan Hang & Another, above, applying Taylor v DPP (1973)Cr App R 915, HL.

Although it is unnecessary to show, in order to prove the offence, that the assemblytook place in a public place, the essential prerequisite is the presence or likely presenceof innocent third parties, members of the public not participating in the illegal activitiesin question. It is their presence or the likelihood of it and the danger to their security ineach case which constitutes the threat to public peace and the public element necessaryto the commission of the offence: Kamara & Others v DPP [1973] 2 All ER 1242, HL,followed in HKSAR v Yeung Kin Ping & Others, above. Therefore, no offence under s 18is committed if the only persons present or likely to be present to witness or to hear theinsulting or disorderly conduct or to be within earshot or so placed as to be causedapprehension or fear are, apart from the disorderly group whose conduct is the subjectof the charge, others who are themselves engaged upon unlawful conduct which occa-sions or contributes to the unruly conduct which is the subject matter of the charge.

“Commit a breach of the peace”

31–10 In R v Howell, above, the court stated that there is a breach of the peace wheneverharm is actually done or is likely to be done to a person or in his presence to his prop-erty, or a person is in fear of being so harmed through an assault, an affray, a riot,unlawful assembly or other disturbance; HKSAR v Chow Nok Hang & Anor (unrep.,HCMA 193/2012, 20 July 2012). See also R (Laporte) v Chief Constable of GloucestershireConstabulary [2007] 2 AC 105, HL; Chan Hau Man Christina v Commissioner of Police[2009] 4 HKLRD 797, CFI; HKSAR v Au Kwok Kuen, [2010] 3 HKLRD 371, CFI. But amere disturbance not involving violence or a threat of violence could not amount to abreach of the peace: Parkin v Norman, above. Agitated or excited behaviour, not involv-ing injury, nor any verbal threat, is not capable of amounting to a breach of the peace:Jarrett v Chief Constable of West Midlands Police (unrep., The Times, February 28, 2003), CA(Eng) (Civ Div). See also Hawkes v DPP (unrep., The Times, November 29, 2005), QBD(Newman J.); HKSAR v Lo Man Hong (unrep., HCMA 874/2009, [2010] CHKEC 665),


1797


CFI; HKSAR v Lam Chun Kong (unrep., HCMA 147/2010, [2010] HKEC 1551). BokharyJA indicated in R v To Kwan Hang & Another, above, that someone commits a breach ofthe peace when he unlawfully resorts to violence which injures someone or damagesproperty, or which puts someone in immediate danger of injury or property in immedi-ate danger of damage. The court must take into account the circumstances of the case,who was present and how they reacted, in order to be satisfied that the effect of thedefendant’s conduct would have caused sufficient outrage to make it likely that one ormore of them would not confine themselves simply to the force reasonable to effect thearrest of the defendant: HKSAR v Chan Kwai Hung (unrep., HCMA 1108/2008, [2009]HKEC 1710), CFI.

A breach of the peace is likely to result if the accused’s disorderly conduct is knownto others after a hue and cry, as the citizens who came forward to assist may decide toseize or punish the accused, thus involving the use of violence: HKSAR v Cheng Siu Wing[2003] 4 HKC 471, CFI. See also HKSAR v Yip Tak Ming [2004] 3 HKLRD 286, CFIHKSAR v Pearce [2005] 4 HKC 105; HKSAR v Wong Wing Hong (unrep., HCMA 307/2006, [2006] HKEC 1378); HKSAR v Tsui Chi Yung (unrep., HCMA 1051/2006, [2007]HKEC 628, CFI). A breach of the peace may be occasioned in a private place or privateproperty, as well as in a public place: McConnell v Chief Constable of the Greater ManchesterPolice [1990] 1 All ER 423, CA (Eng), followed in HKSAR v Yeung Kin Ping & Others,above. A breach of the peace can take place on private premises even though thedisturbance does not affect members of the public or at least one other person outsidethe private premises themselves: ibid.

A disturbance or demonstration should not be considered in terms of isolated eventsbut the continuous chain of events to see if the conduct was likely to cause anotherreasonably to fear a breach of the peace: HKSAR v Wong Ying Yu [1997] HKLY 236,CFI. See also HKSAR v Yeung Ka Wah (unrep., October 30, 2008, HCMA 110/2008),CFI. (NB: Deputy Judge Toh referred to §§31–9 and 31–10 of this Work).

“One of a crowd”: evidence of identification and participation

31–11Where a crowd of people together appear to be taking part in an unlawful assemblyand the group is arrested as a group, two questions arise in relation to proving a contra-vention of s 18 against a particular individual: (a) proof of his presence in the crowd;and (b) proof of his participation in an offence. These two questions were considered inconnection with the offence of threatening, abusive or insulting behaviour at a publicplace or meeting under s 5 of the Public Order Act 1936 [Eng] by the Divisional Courtin Allan & Others v Ireland (1984) 79 Cr App R 206. Presence in close proximity in acrowd to people in violent confrontation with the police was evidence from which acourt might infer that the person so behaving had held a common intention of violencewith those other persons whose actions were observed to be of a more violent naturethan his: R v Tse Chung, above.

“Self-defence”

31–12In the case of HKSAR v Yeung Kin Ping & Others, above, the appellant went to the flatof the complainant to collect what he believed was an outstanding debt and knowingfull well that he might be attacked. The appellant went to the flat with a number of menwho later on joined in a melee with the complainant and his family members. Theappellant could not then claim self-defence in opposition to a charge of unlawful assem-bly arising out of the disorderly conduct displayed by his men since there was no neces-sity in the first place to go to the complainant’s flat as there were other peaceable meansto collect the debt.

(5) Compatibility with Hong Kong Bill of Rights

31–13The Court of Appeal held that s 18 was consistent with Article 17 of the Hong KongBill of Rights, which guarantees the right of peaceful assembly: R v To Kwan Hang &


1798


Another, above. Macdougall VP considered that Article 17 could not possibly, on a wideand purposive interpretation, be taken to confer a right of assembly on persons whoconducted themselves in a disorderly, intimidating, insulting or provocative mannerintended or likely to cause any person reasonably to fear that the persons so assembledwill commit a breach of the peace, or will by such conduct provoke other persons tocommit a breach of the peace. Litton JA agreed. Bokhary JA held that s 18 did notpurport to outlaw any peaceful assembly, bearing in mind the meaning of “commit abreach of the peace”.

“Petitioners had no right to hold any assembly within a private residential develop-ment in the absence of permission. In Hong Kong, notwithstanding the acknowledgedimportance of the right of peaceful assembly and the right to freedom of expression,neither the provisions in the Basic law of the HKSAR nor those in the Hong Kong Billof Rights bestow any freedom of forum for the exercise of those rights. None of therelevant provisions require the automatic creation of rights of entry to private residen-tial property. The right of peaceful assembly and the right to freedom of expressionstop, so far as physical or geographical limits are concerned, at the boundary of privateresidential property belonging to others, in the absence of any permission to enter. Theconstitutional protection of private property rights under Articles 6, 29 and 105 of theBasic Law of the HKSAR means that the position in Hong Kong is an a fortiori one,unlike that provided in the International Covenant on Civil and Political Rights, whereprivate property rights subsumed under the “rights and freedoms of others” for justify-ing necessary restrictions of the rights of peaceful assembly and to freedom expression.Further the right to privacy of owners or occupiers of buildings and developmentsunder co-ownership must be given a generous interpretation to include common areas(such as a driveway) for the purpose of protection of their privacy. The positive duty onthe part of the Government and the police was to take reasonable and appropriatemeasures to enable lawful assemblies to take place peacefully. As the petitioners had noright to assemble within the private residential development without the necessary per-mission, there was no question of the police owing to them any positive duty to assistthem to hold the assembly. Nor was there any question of the police interfering with thepetitioners’ right to assembly: HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, CFI (apply-ing Appleby v United Kingdom (2003) 37 EHRR 38, ECtHR). Cf Brooker v Police [2007] 3NZLR 91, where the Supreme Court of New Zealand held that whether a person wasbehaving in a disorderly manner involved an objective assessment of the tendency of thebehaviour to disrupt public order. Where the behaviour concerned involved a genuineexercise of the right to freedom of expression, the reasonable member of the publicmight well be expected to bear a somewhat higher level of anxiety or disturbance thanwould otherwise be the case to prevent an unjustified limitation of the freedom.

(6) Enforcement

31–14 Section 45 of the Public Order Ordinance (Cap 245) empowers any police officer touse such force as may be necessary (a) to prevent the commission or continuance ofany offence under the Ordinance; (b) to arrest any person committing or reasonablysuspected of being about to commit or of having committed any offence under theOrdinance; or (c) to overcome any resistance to the exercise of any of the powersconferred by the Ordinance. However, s 46(1) provides that the degree of force so usedmust not be greater than is reasonably necessary for the relevant purpose.

B. Riot and Riotous Activity

(1) General


31–15 19.—(1) When any person taking part in an assembly which is an unlawful assembly by virtueof section 18(1) commits a breach of the peace, the assembly is a riot and the persons assembledare riotously assembled.


1799


(2) Any person who takes part in a riot shall be guilty of the offence of riot and shall be liable (a) on conviction on indictment, to imprisonment for 10 years; and (b) on summary conviction, to a fine of HK$5,000 and to imprisonment for five years.

[Sub-section (1) was amended by s 12 of the Public Order (Amendment) Ordinance(31 of 1970).]

As to unlawful assembly by virtue of s 18(1) of the Public Order Ordinance (Cap 245),see §§31–2 et seq.

As to “commits a breach of the peace”, see §31–10, above. As to the use of force by police officers under the Public Order Ordinance, see

§31–14, above.

(2) Indictment


31–16Riot, contrary to s 19(2) of the Public Order Ordinance, (Cap 245).


AB and CD, on the _______ day of _______, 20___, at ______, took part in a riot, in that theyassembled together with each other and with EF and other persons unknown at the and the persons soassembled conducted themselves in a disorderly, intimidating, insulting or provocative manner [intended orlikely] to cause any person reasonably to fear that the persons so assembled [would commit a breach of thepeace or will by such conduct provoke other persons to commit a breach of the peace] and did, by one or moreof them, commit a breach of the peace.

See R v Mahroof, above, at §31–3 as to the need to make it plain in the particulars ifthe conduct of persons other than the accused is being relied upon.

In R v Jones & Others (1974) 59 Cr App R 120, CA (Eng), the court upheld a count ofunlawful assembly as not bad for duplicity even though it charged one unlawful assem-bly at different times and places during the day.

(3) Sentence

31–17The maximum penalty of imprisonment prescribed for summary conviction is abovethe general sentencing jurisdiction of a magistrate under the Magistrates Ordinance(Cap 227).

In sentencing for riot, it was a wholly wrong approach to take the acts of any indi-vidual participator in isolation. The gravity of the offence was constituted by the very factthat they were not committed in isolation: R v Caird, above. See also R v Fox and Hicks[2006] 1 Cr App R (S) 17, CA (Eng). The court should have regard, in arriving at theappropriate sentence for riot, to the level of the violence used, the scale of the riot andthe extent to which it is premeditated. Where the riot occurred in a prison or detentioncentre, the public interest, the interest of the Correctional Service Department and theelement of deterrence in order to reflect the necessity for the maintenance of controltherein should also be borne in mind; see R v Pilgrim (1983) 5 Cr App R (S) 140; Att-Genv Tse Ka Wah [1992] 2 HKCLR 16; R v Nguyen Quang Thong [1992] 2 HKCLR 10; Secre-tary for Justice v Cheung Chun Chin & Others [2002] 2 HKLRD 233; and HKSAR v ChanKam Chi & Others (unrep., CACC 240 & 264 of 2002). In Secretary of Justice v CheungChun Chin, above, the Court of Appeal took six years’ imprisonment to be the propersentence after trial for those who participated in a riot in a correctional institution,the whole purpose of which was to inflict violence on Vietnamese inmates, and whenthat became impossible, on correctional service officers and later the police, bearing inmind the scale and consequences (including personal injuries and damage to property)that flowed from it. Secretary for Justice v Cheung Chun Chin, above, was followed by theCourt of Appeal in HKSAR v Chan Kam Chi & Others.


1800


Under section 20


31–18 20.—(1) Any person taking part in a riot who unlawfully pulls down or destroys or begins topull down or destroy any motor vehicle, tramcar, aircraft, vessel, building, railway, machinery orstructure shall be guilty of an offence and shall be liable—

(a) on conviction on indictment, to imprisonment for 14 years; and (b) on summary conviction, to imprisonment for five years.

(2) A person may be convicted of an offence under this section whether or not he has beencharged with or convicted of any other offence under this Part.

31–19 The maximum penalty of imprisonment prescribed for summary conviction is abovethe general sentencing jurisdiction of a magistrate under the Magistrates Ordinance(Cap 227). There are presently no authorities on sentence.

Under section 21


31–20 21.—(1) Any person taking part in a riot who unlawfully damages any of the things specifiedin section 20 shall be guilty of an offence and shall be liable—

(a) on conviction on indictment, to imprisonment for 10 years; and (b) on summary conviction, to imprisonment for five years.


As to section 20 of the Public Order Ordinance (Cap 245), see §§31–18 et seq. 31–21 The maximum penalty of imprisonment prescribed for summary conviction is above

the general sentencing jurisdiction of a magistrate under the Magistrates Ordinance(Cap 227). There are presently no authorities on sentence.

Under section 22


31–22 22.—(1) Any person taking part in a riot who unlawfully and with force prevents, hindersor obstructs, or attempts to prevent, hinder or obstruct, the loading or unloading, or themovement, of any motor vehicle, tramcar, aircraft, train or vessel, or unlawfully and with forceboards, or attempts to board, any motor vehicle, tramcar, aircraft, train or vessel with intent todo so, shall be guilty of an offence and shall be liable on summary conviction to a fine ofHK$5,000 and to imprisonment for three years.



As to a riot, see §§31–15 et seq. As to any other offence under Part IV of the Public Order Ordinance (Cap 245),

see §§31–2 to 31–26 and 31–34 to 31–36. As to the use of force by police officers under the Public Order Ordinance, see

§31–14, above.

Under section 23


31–24 23.—(1) Any person who enters on any premises in a violent manner, whether or not he isentitled to enter thereon and whether such violence consists in actual force applied to any other


1801


person or in threats or in breaking open any building or in collecting an unusual number ofpeople, shall be guilty of an offence and shall be liable on summary conviction to a fine ofHK$5,000 and to imprisonment for two years.

(2) Nothing in this section shall make it an offence for a person to enter upon his ownpremises if they are in his possession or in the custody of his servant or agent.

[Sub-section (2) was replaced under s 13 of the Public Order (Amendment) Ordinance(31 of 1970).]

As to the use of force by police officers under the Public Order Ordinance, see§31–14, above.

Under section 24


31–2524.—Any person who, being in unlawful possession of premises, holds possession of them,in a manner likely to cause a breach of the peace or to cause any person reasonably to fear thata breach of the peace may occur, against a person entitled by law to the possession of thepremises, shall be guilty of an offence and shall be liable on summary conviction to a fine ofHK$5,000 and to imprisonment for two years.

As to “likely to”, see §31–8. As to “cause any person reasonably to fear”, see §31–9. As to “breach of the peace”, see §31–10. As to the use of force by police officers under the Public Order Ordinance, see

§31–14, above.

C. Affray

(1) Definition

31–26An affray is a violent disturbance of the peace by one or more persons which takesplace in such circumstances as to cause terror to one or more persons of reasonablefirmness: R v Summers (1972) 45 Cr App R 604, CA (Eng) as modified by Taylor v DPP(1973) 57 Cr App R 915, HL per Lord Reid at p 926. (The definition of affray shouldstate that it is a common law offence, cf UK Public Order Act 1986 which created astatutory offence and changed the definition. Hence the English authorities pre-datethat legislation.) Lord Hailsham LC at p 922 and elsewhere says that affray consists inparticipating unlawfully in violent breach of the peace to the terror of the lieges.“Unlawfully” would seem apt to exclude someone acting in reasonable defence of him-self or another, or using reasonable force to make an arrest or the like. If the issue ofself-defence or reasonable defence of another arises, it is incumbent on the prosecutionto rebut it to the criminal standard: R v Honeysett (1987) 34 A Crim R 277, CCA (NSW).

In order to establish the offence of affray in a public place, the prosecution mustprove: (i) that there was unlawful fighting or unlawful violence used by one or morethan one person against another or others, or that there was an unlawful display offorce by one or more than one person without actual violence, and (ii) that the unlaw-ful fighting, violence or display of force was such that a bystander of reasonable firmnessand courage (whether or not present or likely to be present) might reasonably beexpected to be terrified. An innocent victim or intended victim or participant may con-stitute a bystander. The word ordinarily embraces an innocent member of the publicwithin sight or earshot of the relevant incident: Att-Gen’s Reference (No 3 of 1983) [1985] 1All ER 501, CA (Eng). The court considers it neither “necessary nor desirable” toembark on any discussion about fighting in places which are not public.

“Violent disturbance of the peace”

31–27The most common form of affray is a fight between two men, or more usually twogroups, which terrifies one or more bystanders. One man can, however, be guilty of an


1802


affray if he attacks someone who either does not retaliate or merely retaliates in reason-able self-defence: Taylor v DPP, above, per Lord Hailsham LC at p 923, disapproving R vSharpe and Johnson (1957) 41 Cr App R 86, CC (Eng) on this point. (For self-defence see§20–44, above.) In such a case the person attacked is not guilty of affray, or any otheroffence: R v Sharpe and Johnson (1957) 41 Cr App R 86, CA (Eng), approved on thispoint by the House of Lords in Taylor v DPP, above.

The disturbance of the peace may be a display of force, eg brandishing an offensiveweapon, without actual violence: R v Summers, above, and Taylor v DPP, above, per LordReid at p 926 and Lord Hailsham LC at p 923. What other display of force withoutactual violence is sufficient is not clear; ibid. The display of force may be by one manalone: ibid., and see per Lord Reid at p 928: “I would not seek a rigid definition of acommon law offence … if a new point arises the question should always be whether it iswithin the mischief aimed at and within the principles established by the authorities.”According to Hale (1 Hale 456), “No quarrelsome or threatening words whatever willamount to an affray.” The disturbance of the peace may be in public or private: Button vDPP (1966) 50 Cr App R 36, HL.

“The element of terror”

31–28 This element of the offence must not be weakened – all the early textbooks stress thederivation of the word from the French “effrayer”, to put in terror (see also Button v DPP[1966] AC 591, 625). See Lord Hailsham LC in DPP v Taylor, above, at p 924, “It isessential to stress that the degree of violence required to constitute the offence of affraymust be such as to be calculated to terrify a person of reasonably firm character. Thisshould not be watered down. Thus it is arguable that the phrase ‘might be frightened orintimidated’ may be too weak. The violence must be such as to be calculated to terrify –that is, might reasonably be expected to terrify …” per Lord Hailsham LC in Taylor vDPP, above, at p 924. Cf Lord Reid, ibid, at pp 927–928 and below.

Extent to which presence of innocent bystanders must be proved to satisfy ingredient of terror

31–29 Lord Hailsham LC declined to explore this aspect of the offence in depth: “It ispossible that where the fight takes place in a public street it is not necessary to prove theactual presence of bystanders or persons within … earshot or that they were actuallyterrified. It may be enough to show that the violence used was of such a kind as torender the street unusable by persons of reasonable firmness …”. See too as to affray ina “private place”; O’Connor J in R v Taylor [1973] 1 All ER 78, CA (Eng). See too LordReid in Taylor v DPP, above, at pp 927–928.

“Undoubtedly if people are present it is not necessary to prove by their evidence that theywere terrified. It is enough if the circumstances are such that ordinary people like themwould (not ‘might’) have been terrified. But I am much more doubtful about suggestions insome cases that no one but the combatants need be present at all or even within earshot:that it is enough that if someone had been present he would have been terrified. As terror isan essential ingredient of the offence, I think that there can be no difference in principlebetween violence in a public or a private place … that is a matter which can be decidedwhen it arises.”

As to the need for bystanders to give evidence that they were terrified, see R v LamHau Hing (unrep., 7 February 1990, HCMA 1512/1989).

In Kamara & Others v DPP, above, Lord Hailsham implied that the presence of “inno-cent third parties” was necessary to the offence of affray. While this is clearly so when theaffray consists of rival parties fighting each other unlawfully (see Button v DPP, above),it is submitted that it is not so in other forms of affray. The victims of an affray maythemselves be the persons terrified, and in such a case the presence of “innocent thirdparties”, which presumably means bystanders, is unnecessary. See Taylor v DPP (above).At p 927 Lord Reid, referring to the facts in R v Scarrow (1972) 52 Cr App R 591, CA


1803


(Eng) (where it was held that there need not be “reciprocal violence”) said: “Threemen went into an hotel and, as a witness said, ‘They were fighting everyone, young andold, punching, kicking and no-one retaliated.’ They were, in my judgment, rightly heldguilty of affray.” Here there appear to have been no “innocent third parties”.

It is therefore submitted that Lord Hailsham was in error as to this requirement inthe case of affray. It will be found that other dicta suggesting the need for the presenceof “innocent third parties” relate to cases where there were two parties both unlawfullyfighting, the most common type of affray. Apart from authority it would be ridiculousif, for example, when a party of men invaded a dance hall and attacked everyone init, they could not be convicted of affray because there was no witness whom they didnot attack.

(2) Indictment


31–30Affray, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance, (Cap 221).


AB and CD on the _____ day of _______ at _______, unlawfully fought and made an affray.

In R v Jones & Others, above, the relevant count alleged that the appellants “togetherwith others … on September 6, 1972, on divers building sites in the county of Salopunlawfully fought and made an affray”. The court held that the actus reus of the affraywas fighting or show of force continued, the count should have been quashed becauseon the face of it although clearly defined and separate places at which the affray wasalleged to have occurred were shown, the count did not allege any continuation of theactus reus between the sites. The count there alleged more than one activity and shouldhave been quashed if the Crown were not prepared to amend it before arraignment,cf the position as to unlawful assembly, §31–3, above.

Where the evidence on the depositions disclosed that a large number of persons,including the appellants, from 8:30 pm on 31 August to about 12:30 am on 1 September1958, were milling about over an area of about a quarter of a mile radius from a loca-tion, a count of affray, which stated in the Particulars of Offence that the appellants “onthe 31st day of August, 1958 and the 1st day of September 1958, in divers streets … inthe neighbourhood of [the location], unlawfully fought and made an affray” was heldby the Court of Criminal Appeal not to be bad for duplicity and to be in proper form:R v Woodrow & Others (1959) 43 Cr App R 105. An affray can be a continuing offencebut the court must consider whether the events that occurred at different times anddifferent places could be considered as part and parcel of a general melee: R v Chiu YukChing & Another [1985] HKEC 56, CA.

(3) Sentence

31–31Seven years’ imprisonment and a fine: section 101I(1) of the Criminal ProcedureOrdinance (Cap 221). Affrays vary greatly on their facts and the sentence imposed on adefendant must always be case specific. A court should take into account the nature ofthe affray itself (for example, where it occurred and the number of persons placed infear by it, the number of participants, its duration, whether it was spontaneous or organ-ized, the nature of the violence, whether weapons were used and whether injuries wereoccasioned and if so how serious those injuries were) and the role of the particulardefendant so far as that can be ascertained: HKSAR v Yip Kam Wah & Anor (unrep.,26 March 2008, CACC 413/2007), CA. An affray committed in a detention centre withelements of premeditation should attract deterrent sentences, bearing in mind theinterest in affording protection to correctional service officers: R v Nguyen Quang Thong& Others, above. A court could sentence a person convicted of affray upon the basis of


1804


one or more acts of violence even where there was no specific conviction on a specificcount alleging such act. It would be undesirable in the extreme to require the prosecu-tion to overload an indictment for affray with numerous allegations of assaults orwoundings, particularly in a multi-handed case: R v Cooke (1987) 9 Cr App R (S) 116,CA (Eng). It would seem that there is no limit to the amount of the fine that may beimposed provided the sentence is not inordinate: R v Morris [1951] 1 KB 394; 34 Cr AppR 210. (The sentencing powers of magistrates should in the case of this offence bespecified as the general sentencing power of two years/HK$100,000 – s 92, MagistratesOrdinance, Cap 227.)

(4) Aiding and abetting an affray

31–32 Before a jury can convict an accused person of aiding and abetting an affray, theymust be convinced of the evidence that, at the very least, he by some means or otherencouraged the participants. Where presence at an affray is prima facie not accidental, itis evidence, but no more than evidence, of encouragement, even where there is also asecret intention to help one side, if necessary: R v Allan [1965] 1 QB 130; 47 Cr App R243; R v Clarkson (1971) 55 Cr App R 445 and R v Jones and Mirless (1977) 65 Cr App R250, CA (Eng), above §§17–16 and 17–17.

(5) Evidence from those allegedly involved in the fighting

31–33 The former rules requiring a warning to be given by judges to themselves or to juries,of the danger of relying on the uncorroborated evidence of alleged accomplices wasabrogated in 1994 by s 16 of the Criminal Procedure Ordinance (Cap 221).

Thus if a defendant who has pleaded guilty or another person who is or who mayhave been involved in the fighting is called by the prosecution, it will be a matter for thediscretion of the judge to determine what, if any, warning should be given. Its form andcontent will depend on the circumstances of the case, the issues to be decided, thenature of the impugned witness’ evidence and the extent of the particular taint uponhis evidence; this also applies where one defendant in a fighting case gives evidenceadverse to another in a joint trial.

See §§4–212 et seq, above on the proper approach to be taken in such cases.

D. Fighting in a Public Place

(1) Statute


31–34 25.—Any person who takes part in an unlawful fight in a public place shall be guilty of anoffence and shall be liable on summary conviction to a fine of HK$5,000 and to imprisonmentfor 12 months.

As to the use of force by police officers under the Public Order Ordinance, see§31–14, above.


“Unlawful fight”

31–35 The prosecution must prove that an unlawful fight took place. A fight was not unlaw-ful to the extent to which a person taking part in a fight was acting in reasonable self-defence: R v Wong Chi Keung [1987] 1 HKC 360, HC; R v Li Yiu Kin (unrep., 14 May1997, MA 37/1997); HKSAR v Hau Kin (unrep., 26 September 2003, HCMA 478/2003);HKSAR v Chan Kai Ming (unrep., 3 August 2005, HCMA 4941/2005). See also R v Leung


1805


Chi Wing [1985] HKEC 238, HC, where the possibility of participation in the fight onlyin self-defence was negated.

“Public place”


Public Order Ordinance (Cap 245), s 231–362.—(1) In this Ordinance, unless the context otherwise requires—

“public place” means any place to which for the time being the public or any section of thepublic are entitled or permitted to have access, whether on payment or otherwise, and,in relation to any meeting, includes any place which is or will be, on the occasion andfor the purposes of such meeting, a public place; ….

Section 2(1) of the Public Order Ordinance (Cap 245) defines “meeting” to mean:

“any gathering or assembly of persons convened or organized for the purpose of the discus-sion of issues or matters of interest or concern to the general public or a section thereof, orfor the purpose of the expression of views on such issues or matters, and includes any gather-ing or assembly of persons whether or not previously convened or organized at which anyperson assumes or attempts to assume control or leadership thereof for any such purpose;but does not include any gathering or assembly of persons convened or organized exclu-sively—(a) for social, recreational, cultural, academic, educational, religious or charitablepurposes, or as a conference or seminar bona fide intended for the discussion of topics ofa social, recreational, cultural, academic, educational, religious, charitable, professional,business or commercial character; (b) for the purpose of a funeral; (c) for the purposes ofany public body; or (d) for the purpose of carrying out any duty or exercising any powerimposed or conferred by any Ordinance.”

The prosecution must prove that the location at which the fight took place was apublic place within the meaning of s 2(1) of the Public Order Ordnance (Cap 245): R vNg Chung Sang [1985] HKEC 295, HC. See also R v Chan Chu Shi [1990] HKLY 268, HC.

In determining whether a location or area is a public place, one must considerwhether the persons who are entitled or permitted to have access to a particular loca-tion or area are so entitled or permitted qua their being members of the public ormembers of a section of the public. Accordingly, the closed area along the Hong Kongside of the border with Shenzhen was held to be a public place since the particularlocation was not owned by any private owner, and those permitted to enter the closedarea had general permission to enter and leave the closed area as members of the pub-lic living in that area: HKSAR v Chau Fung [1999] HKEC 508, CFI.

The common corridor of private premises, the access to which was limited to theoccupiers and their licensees and invitees, was not a public place within the meaning ofsection 2(1). Those persons other than the occupiers who may lawfully enter the pre-mises had their legal right to enter not by virtue of their being members of the publicbut solely by virtue of their status as licensees or invitees of the occupiers: R v Lam ShingChow [1985] HKLY 231. See also R v Edwards (1978) 67 Cr App R 228, CA (Eng).

However, where the public or a section of the public had a right or permission toenter a place in a building or private property, that place is a public place within themeaning of section 2(1): HKSAR v Leung Chiu Ming [2003] 4 HKC 308, CFI (distin-guishing R v Lam Shing Chow, above). Section 32 of the Housing Ordinance (Cap 283)deems to be a public place for the purposes of the Public Order Ordinance any land inan estate vested in or under the control and management of the Housing Authority(subject to two exceptions); see R v Chan Kin San [1988] 2 HKLR 232. There is a similardeeming provision in the Airport Authority Ordinance (Cap 483), s 44.

A club, so long as it was open for business inviting members of the public to enter,was a place to which the public was permitted to have access and therefore a public place:HKSAR v Wong Yiu Wah & Others [2001] HKEC 1087, CFI. As to whether a room in the


1806


club is a public place, see HKSAR v Wong Lam Fong (unrep., 5 September 2008, HCMA146/2008), CFI. See also Lawrenson v Oxford [1982] Crim L R 185, and §31–64, below.

The public gallery and the adjoining racetrack of the Hong Kong Jockey Club wereheld to be a public place for the purpose of the Public Order Ordinance even thoughmembers of the public were denied access to the racetrack on a racing day and theracetrack was regarded as a “private area” by the Jockey Club: HKSAR v Pearce [2005] 4HKC 105. See also Cawley v Frost [1976] 1 WLR 1207, DC (Eng), which involved a foot-ball ground.

III. PUBLIC MEETINGS, GATHERINGS AND PROCESSIONS

General

31–37 Part III of the Public Order Ordinance (Cap 245) contains provisions for the controlof public meetings, gatherings and processions. The present provisions are controversialnot only because they were enacted by the Provisional Legislative Council of the HKSARbut also because they were enacted to replace provisions substituted in 1995 for thepurpose of ensuring compliance with the Hong Kong Bill of Rights, such provisionshaving been declared by the Standing Committee of the National People’s Congress inFebruary 1997 to be inconsistent with the Basic Law and not adopted as laws of theHKSAR. In effect, the notification system under the 1995 provisions was replaced by anauthorization system under the present provisions which permits public meetings orpublic processions to take place only if the police have been notified in advance andhave not prohibited or taken objection to the holding or taking place of the meeting orprocession. The present provisions provide for the indictable offences in relation tounauthorized under the same for public meetings and public processions. The Court ofFinal Appeal upheld the constitutionality of the present statutory requirement for notifi-cation of public meetings and public processions in HKSAR v Leung Kwok Hung (2005)8 HKCFAR 229, [2005] 3 HKLRD 164 but held that the statutory discretion of the Com-missioner of Police to restrict the right of peaceful assembly for the purpose of publicorder (ordre public) did not satisfy the constitutional requirement of “prescribed bylaw”. Cf Director of Public Prosecutions v Haw [2008] 1 WLR 379, DC (Eng); R (Singh) vChief Constable of West Midlands Police [2007] All ER 297, CA (Eng); Blum v Director ofPublic Prosecutions [2006] EWHC 3209 (Admin); Abdul & Ors v Director of Public Prosecu-tions [2011] EWHC 247 (Admin).Further, the Public Order Ordinance also prohibitsdisorderly conduct in public places and proposing violence at a public gathering.

Whether or not a public meeting, gathering or procession is held or takes place inaccordance with the Public Order Ordinance does not absolve the participants fromcomplying with the provisions of another Ordinance, since s 17G of the Public OrderOrdinance provides that Part III of the Public Order Ordinance must be construed asbeing in addition to and not in derogation of the provisions of any Ordinance, andnothing in that Part relating to any matter may affect the liability of any person tocomply with any provision of any Ordinance in respect of the same matter. One suchmatter is the prohibition of obstruction in public places under the Summary OffencesOrdinance (Cap 228). Another matter is the licensing control under the Places of Pub-lic Entertainment Ordinance (Cap 172), which addresses issues arising from crowd con-trol, structural safety, hire hazards, mechanical and electrical safety as well as sanitaryhygiene, for the purpose of protecting the safety of the members of the public whoattend the event held at the place of public entertainment and to avoid disorder in sucha place. In T v Commissioner of Police (unrep., HCAL 102/2011, [2012] HKEC 984), theCourt of First Instance held that this Ordinance applies to an organized public enter-tainment held at a public place like part of a street or other pedestrianized area wherethe organizer does not have exclusive right of occupation; and that the application ofthe Ordinance to public demonstrations is not inconsistent with the constitutionallyprotected freedom of expression and right to public demonstration under Article 27 ofthe Basic Law and Article 17 of the Hong Kong Bill of Rights.


1807

Sect. III] Public Meetings, Gatherings and Processions § 31–39

A. Public Order Ordinance (Cap 245), Part II

(1) Statute

Public Order Ordinance (Cap 245), ss 6–17

General powers of the Commissioner of Police31–386.—(1) If the Commissioner of Police reasonably considers it to be necessary in the interests

of national security or public safety, public order (ordre public) or the protection of the rights andfreedoms of others, he may, in such manner as he thinks fit, control and direct the conductof all public gatherings and specify the route by which, and the time at which, any publicprocession may pass.

(2) The Commissioner of Police may, if he reasonably considers it to be necessary to preventan imminent threat to the interests of national security or public safety, public order (ordrepublic) or the protection of the rights and freedoms of others, in such manner as he may thinkfit, control and direct the extent to which music may be played, or to which music or humanspeech or any other sound may be amplified, broadcast, relayed, or otherwise reproduced byartificial means, in:

(a) public places; or (b) places other than public places if such music, human speech or sound is directed

towards persons in public places. (3) The Commissioner of Police may give such orders as he reasonably considers necessary to

achieve the purpose mentioned in sub-sections (1) and (2).

The expressions “public safety”, “public order (ordre public)” and “the protection ofthe rights and freedoms of others” are interpreted in the same way as under the Interna-tional Covenant on Civil and Political Rights as applied to Hong Kong, and the expres-sion “national security” means the safeguarding of the territorial integrity and theindependence of the People’s Republic of China: Public Order Ordinance (Cap 245)s 2(2).

In so far as the expression “public order (ordre public)” is applied as a word for theexercise of discretion of the Commissioner of Police under the Public Order Ordinanceto protect the right to peaceful assembly, that expression is held to mean only publicorder (in the law and order sense, ie the maintenance of public order and preventionof public disorder): Leung Kwok Hung & Others v HKSAR [2005] 3 HKLRD 164, CFA.

As to the meaning of “public gathering” and “public procession”, see §31–51, below. As to the meaning of “public place”, see §31–36, above. Refusal or wilful neglect to obey an order given under section 6 is an offence punish-

able by a fine of HK$10,000 and imprisonment for 12 months: Public Order Ordinance(Cap 245) section 17A(1).

A certificate purporting to be under the hand of the Commissioner of Police specify-ing the terms and date of an order given under section 6 is prima facie evidence ofsuch matter contained in such certificate in all legal proceedings: s 17F Public OrderOrdinance.

Regulation of public meetings31–397.—(1) Subject to this Ordinance, a public meeting may take place if, but only if,

(a) the Commissioner of Police is notified under section 8 of the intention to hold themeeting; and

(b) the holding of the meeting is not prohibited by the Commissioner of Police undersection 9.

(2) This section shall not apply to: (a) a meeting of not more than 50 persons; (b) a meeting in private premises (whether or not the public or any section of the public are

permitted to attend) where the attendance at the meeting does not exceed 500 persons (c) a meeting in any school registered or provisionally registered or exempted under the

Education Ordinance (Cap 279), or in any college registered under the Post SecondaryColleges Ordinance (Cap 320), or in any educational establishment established by anyOrdinance, if:


1808


(i) the meeting is organized or approved by an accredited society or similar body ofsuch school, college or educational establishment; and

(ii) the meeting is held with the consent of the management of such school, collegeor educational establishment in accordance with the terms of that consent,whether or not the public or any section of the public are permitted to attend.

As to the meaning of “public meeting”, see §31–51, below. As to the meaning of “meeting”, see §31–36, above.

Notification of public meetings31–40 8.—(1) For the purposes of section 7, notice of the intention to hold a public meeting shall

be given in writing to the Commissioner of Police: (a) not later than 11 am on the same day of the week in the preceding week as the day on

which the meeting is intended to be held; or (b) where the last day for giving notice under paragraph (a) would fall on a general

holiday, not later than 11 am on the first day immediately preceding that day which isnot a general holiday.

(2) Notwithstanding subsection (1), the Commissioner of Police may, and shall in any casewhere he is reasonably satisfied that earlier notice could not have been given, accept shorternotice than is specified in that subsection.

(3) In cases where the Commissioner of Police has decided not to accept shorter notice thanis specified in subsection (1), he shall as soon as is reasonably practicable inform in writing theperson purporting to give the notice of his decision and the reasons why the shorter notice isnot acceptable.

(4) Notice under this section shall be given by being delivered in person by the person givingit, or by any person on his behalf, to the officer in charge of a police station, and shall containparticulars of the following matters:

(a) the name, address and telephone number of: (i) the person organizing the meeting and any society or organisation promoting or

connected with the holding of the meeting; and (ii) a person able to act, if necessary, in place of the organizer for the purpose of

section 11(1)(a); (b) the purpose and subject-matter of the meeting; (c) the date, location, time of commencement and duration of the meeting; (d) an estimate by the person organizing the meeting of the number of people expected

to attend the meeting. (5) The Commissioner of Police shall issue written acknowledgment of receipt of notice

under this section to the person giving or delivering the notice.

As to the meaning of “public meeting”, see §31–51, below. As to the meaning of “meeting”, see §31–36, above. Section 17A(d) prohibits the making of any announcement or publication of any

advertisement or notice, whether in printed or other form, or in any other manner theadvertising or publicising of a public meeting (other than one referred to in s 7(2))which has not been notified under s 8 or notice of which under s 8 was given to theCommissioner of Police less than 24 hours previously (excluding general holidays). Thepenalty for this offence is a fine of HK$10,000 and imprisonment for 12 months.

Power of Commissioner of Police to prohibit notified public meeting31–41 9.—(1) Subject to this section, the Commissioner of Police may prohibit the holding of any

public meeting notified under section 8 where he reasonably considers such prohibition to benecessary in the interests of national security or public safety, public order (ordre public) or theprotection of the rights and freedoms of others.

(2) Notice of a prohibition under subsection (1) shall be given: (a) in writing to the person who gave notice under section 8 or to any person named in

that notice for the purposes of section 8(4)(I)(i); or (b) by publication in writing in such manner, or by posting a notice of the prohibition in

such place, as the Commissioner of Police may think fit, and such notice shall state theground or grounds on which the prohibition is considered to be necessary and thereasons for the Commissioner’s opinion as to those grounds.

(3) The power conferred by subsection (1) shall not be exercised in respect of any publicmeeting notified under section 8


1809


(a) where notice is given in accordance with section 8(1), at any time later than 48 hours;or

(b) where shorter notice of 72 hours or more is accepted by the Commissioner of Policepursuant to section 8(2), at any time later than 24 hours, prior to the time ofcommencement of the meeting as so notified.

(4) The Commissioner of Police shall not exercise the power conferred by subsection (1) toprohibit the holding of a public meeting in any case where he reasonably considers that theinterests of national security or public safety, public order (ordre public) or the protection ofthe rights and freedoms of others could be met by the imposition of conditions undersection 11(2).

31–42As to the meaning of “public meeting”, see §31–51, below. As to the meaning of “meeting”, see §31–36, above. As to the meaning of “public order (ordre public)”, see §31– 38, above. Section 17A(d) prohibits the making of any announcement or publication of any

advertisement or notice, whether in printed or other form, or in any other manner theadvertising or publicising of a public meeting (other than one referred to in s 7(2))which is prohibited under s 9 and which prohibition has not been reversed on appeal.The penalty for this offence is a fine of HK$10,000 and imprisonment for 12 months.

A certificate purporting to be under the hand of the Commissioner of Police specify-ing the terms and date of a prohibition under s 9 is prima facie evidence of such mattercontained in such certificate in all legal proceedings: s 17F Public Order Ordinance.

Requirements and conditions applying to public meetings31–4311.—(1) At every public meeting

(a) there shall be present throughout the meeting either the person who organized themeeting or, if he is not present, a person nominated by him to act in his place;

(b) good order and public safety shall be maintained throughout the meeting; (c) the control of any amplification device that is used in such a manner that it causes a

noise that would not be tolerated by a reasonable person shall, if so required by apolice officer, be surrendered to the police officer for the duration of the meeting.

(2) The Commissioner of Police may, where he reasonably considers it necessary in theinterests of national security or public safety, public order (ordre public) or the protection of therights and freedoms of others, impose conditions in respect of any public meeting notifiedunder section 8; except that if the meeting is to take place in a designated public area theCommissioner may, in so far as the interests of public order are concerned, only imposeconditions relating to the time at which such a meeting may be held.

(3) Notice of any condition imposed pursuant to subsection (2) shall be given in writing tothe person by whom the public meeting has been notified or to some other person concernedin the holding, convening, organizing or forming of the meeting and shall state the reasons whysuch condition is considered necessary.

(4) The power conferred by subsection (2) to impose conditions includes a like power toamend any such condition previously imposed and reference in this Ordinance to a conditionimposed under or pursuant to subsection (2) shall, except where the context otherwiserequires, include reference to an amendment to such a condition pursuant to this subsection.

(5) Every person who organizes a public meeting, or any person acting in place of suchperson for the purpose of subsection (1)(a), shall comply forthwith with any direction given tohim by a police officer for ensuring compliance with or the due performance of any of therequirements of subsection (1) or any conditions imposed under subsection (2).

(6) In this section (a) “meeting” includes the period from first assembly to final dispersal of a meeting; and (b) references to a public meeting do not include references to a meeting referred to in

section 7(2).

31–44As to the meaning of “public order (ordre public)”, see §31–38, above. Designated public areas are areas designated by the Chief Executive under s 10 of

the Public Order Ordinance by order in the Gazette; see the Public Order Ordinance(Designated Public Areas) (Consolidation) Order (Cap 245 sub leg F).

If the public meeting is held in private premises, the owner or occupier of the pre-mises, any person who organises or assists in the organization of the meeting is under a


1810


duty to comply with the restrictions and requirements under or imposed by any safetyor fire prevention legislation: s 12 Public Order Ordinance.

Section 17A(1)(b) makes it an offence for any person to knowingly contravene orsuffer or permit any person so to contravene any requirement imposed by s 11(1) inrespect of any public meeting, and carries the penalty of a fine of HK$10,000 andimprisonment for 12 months.

Section 17A(1A) makes it an offence to contravene without reasonable excuse s 11(5)and carries the penalty of a fine of HK$5,000 and imprisonment for 12 months.

A certificate purporting to be under the hand of the Commissioner of Police specifyingany conditions imposed under s 11(2) is prima facie evidence of such matter containedin such certificate in all legal proceedings: s 17F Public Order Ordinance.

Regulation of public processions31–45 13.—(1) A public procession may take place if, but only if

(a) the Commissioner of Police is notified under section 13A of the intention to hold theprocession;

(b) the Commissioner of Police has notified under section 14(4) the person that he hasno objection to the procession taking place or is taken to have issued a notice of noobjection;

(c) the requirements under section 15 are complied with. (2) This section shall not apply to

(a) any public procession which is not a procession on a public highway or thoroughfareor in a public park;

(b) any public procession consisting of not more than 30 persons; (c) any public procession of a nature or description specified by the Commissioner of

Police by notice in the Gazette.

As to the meaning of “public procession” and “procession”, see §31–51, below.

Notification of public processions31–46 13A.—(1) For the purposes of section 13, notice of the intention to hold a public procession

shall be given in writing to the Commissioner of Police (a) in the case of a public procession held solely for the purposes of a funeral at which the

body is present, not later than 24 hours prior to the forming of the procession; (b) in any other case

(i) not later than 11am on the same day of the week in the preceding week as theday on which the procession is intended to be held; or

(ii) where the last day for giving notice under subparagraph (i) would fall on ageneral holiday, not later than 11am on the first day immediately preceding thatday which is not a general holiday.

(2) Notwithstanding subsection (1), the Commissioner of Police may, and shall in any casewhere he is reasonably satisfied that earlier notice could not have been given, accept shorternotice than is specified in that subsection.

(3) In cases where the Commissioner of Police has decided not to accept shorter notice thanis specified in subsection (1), he shall as soon as is reasonably practicable inform in writing theperson purporting to give the notice of his decision and the reasons why the shorter notice isnot acceptable.

(4) Notice under this section shall be given by being delivered in person by the person givingit, or by any person on his behalf, to the officer in charge of a police station, and shall containparticulars of the following matter

(a) the name, address and telephone number of: (i) the person organizing the procession and any society or organisation promoting

or connected with the holding of the procession; and (ii) a person able to act, if necessary, in place of the organizer for the purpose of

section 15(1)(a); (b) the purpose and subject-matter of the process;(c) the date, precise route, time of commencement and duration of the process; (d) in respect of any meeting to be held in conjunction with the procession, the location,

time of commencement and duration of the meeting; and (e) an estimate by the person organizing the procession of the number of people

expected to attend the process.


1811


(5) The Commissioner of Police shall issue written acknowledgment of receipt of noticeunder this section to the person giving or delivering the notice.

As to the meaning of “public procession” and “procession”, see §31–51, below. Section 17A(d) prohibits the making of any announcement or publication of any

advertisement or notice, whether in printed or other form, or in any other manner theadvertising or publicising of a public procession (other than one referred to in s 13(2))which has not been notified under s 13A or notice of which under s 13A was given tothe Commissioner of Police less than 24 hours previously (excluding general holidays).The penalty for this offence is a fine of HK$10,000 and imprisonment for 12 months.

Right of Commissioner of Police to object to public procession31–4714.—(1) Subject to subsection (5), the Commissioner of Police may object to a public

procession being held if he reasonably considers that the objection is necessary in the interestsof national security or public safety, public order (ordre public) or the protection of the rights andfreedoms of others.

(2) If the Commissioner of Police objects to the public procession being held he shall as soonas is reasonably practicable and within the time limit specified under this Ordinance:

(a) notify in writing the person who gave notice under section 13A or a person named forthe purposes of section 13A(4)(a)(i) of his objection and reasons; or

(b) publish a written notice of objection and reasons in the manner he thinks fit; (c) post a written notice of objection and reasons in the place he thinks fit.

(3) The Commissioner of Police shall not issue a notice of objection for a public procession: (a) if notice of a procession is given in accordance with section 13A(1)(b), later than

48 hours before the notified commencement time of the procession; (b) if shorter notice of 72 hours or more is accepted by the Commissioner of Police under

section 13A(2), later than 24 hours before the notified commencement time of theprocess;

(c) if shorter notice of less than 72 hours is accepted by the Commissioner of Policeunder section 13A(2), later than the notified commencement time of the procession,this subsection does not apply to a procession held solely for a funeral as referred to insection 13A(1).

(4) If the Commissioner of Police does not object to a public procession being held he shallnotify the person who gave notice under section 13A or a person named for the purposes ofsection 13A(4)(a)(i) in writing of his having no objection as soon as is reasonably practicableand within the time limited for him to give notice of objection under this Ordinance. If theCommissioner does not notify, post or publish his having an objection in accordance withsubsection (2) and within the time limit specified under this Ordinance, the Commissioner istaken to have issued a notice of no objection for the public process.

(5) The Commissioner of Police shall not exercise his right under subsection (1) to object toholding of a public procession if he reasonably considers that the interests of national securityor public safety, public order (ordre public) or the protection of the rights and freedoms of otherscould be met by imposing conditions under section 15(2).

As to the meaning of “public procession” and “procession”, see §31–51, below. As to the meaning of “public order (ordre public)”, see §31–38, above. Section 17A(d) prohibits the making of any announcement or publication of any

advertisement or notice, whether in printed or other form, or in any other manner theadvertising or publicising of a public procession (other than one referred to in s 13(2))which is prohibited under s 14 and which objection has not been reversed on appeal.The penalty for this offence is a fine of HK$10,000 and imprisonment for 12 months.

A certificate purporting to be under the hand of the Commissioner of Police specify-ing the terms and date of an objection under s 14 is prima facie evidence of such mattercontained in such certificate in all legal proceedings: s 17F Public Order Ordinance.

Requirements and conditions applying to public processions31–4815.—(1) At every public procession:

(a) there shall be present throughout the procession either the person who organized theprocession or, if he is not present, a person nominated by him to act in his place;

(b) good order and public safety shall be maintained throughout the process;


1812


(c) the control of any amplification device that is used in such a manner that it causes anoise that would not be tolerated by a reasonable person shall, if so required by apolice officer, be surrendered to the police officer for the duration of the procession.

(2) The Commissioner of Police may, where he reasonably considers it necessary in theinterests of national security or public safety, public order (ordre public) or for the protection ofthe rights and freedoms of others, impose conditions in respect of any public processionnotified under section 13A, and notice of any condition so imposed shall be given in writing tothe person by whom such public procession is so notified or to some other person concerned inthe holding, convening, organizing or forming of the procession and shall state the reasons whysuch condition is considered necessary.

(3) The power conferred by subsection (2) to impose conditions includes a like power toamend any such condition previously imposed and reference in this Ordinance to a conditionimposed under or pursuant to subsection (2) shall, except where the context otherwiserequires, include reference to an amendment to such a condition pursuant to this subsect.

(4) Every person who organizes a public procession, or any person acting in place of suchperson for the purpose of subsection (1)(a), shall comply forthwith with any direction given tohim by a police officer for ensuring compliance with or the due performance of any of therequirements of subsection (1) or any conditions imposed under subsection.

(5) In this section: (a) “procession” includes the period from first assembly to final dispersal of a procession;

and (b) references to a public procession do not include references to a procession referred

to in section 13(2).

31–49 As to the meaning of “public procession” and “procession”, see §31–51, below. As to the meaning of “public order (ordre public)”, see §31–38, above. Section 17A(1)(b) makes it an offence for any person to knowingly contravene or

suffer or permit any person so to contravene any requirement imposed by s 15(1) inrespect of any public procession and carries the penalty of a fine of HK$10,000 andimprisonment for 12 months.

Section 17A(1A) makes it an offence to contravene without reasonable excuse s 15(4)and carries the penalty of a fine of HK$5,000 and imprisonment for 12 months.

A certificate purporting to be under the hand of the Commissioner of Police specify-ing any conditions imposed under s 15(2) is prima facie evidence of such matter con-tained in such certificate in all legal proceedings: s 17F Public Order Ordinance.

Police powers over meetings, processions and gatherings31–50 17.—(1) Any police officer may prevent the holding of, stop or disperse

(a) any public meeting which takes place in contravention of s 7 or in regard to whichany requirement, or any condition imposed under s 11 is being or has beencontravened;

(b) any public procession which takes place in contravention of s 13 or in regard towhich any requirement, or any condition imposed under s 15 is being or has beencontravened.

(2) Any police officer of or above the rank of inspector may:(a) prevent the holding of, stop, disperse or vary the place or route of any public

gathering, other than a public gathering exclusively for religious purposes, whether ornot the public gathering is one to which s 7 or 13 applies; or

(b) stop or disperse any public gathering exclusively for religious purpose or any meetingconvened or held in any premises or place which is not a public place or any gatheringor procession whatsoever or wheresoever, if he reasonably believes that the same islikely to cause or lead to a breach of the peace.

(3) For the purpose of exercising the powers conferred by subss (1) and (2) respectively,a police officer and a police officer of or above the rank of inspector may give or issue suchorders as he may consider necessary or expedient, and such police officer and any other policeofficer may

(a) use such force as may be reasonably necessary to prevent the holding of, stop ordisperse, as the case may be, the public meeting, public procession, public gatheringor other meeting, gathering or procession; and

(b) enter any premises or place whatsoever in which any meeting is taking place or anypersons are gathered.


1813


(4) If a police officer of or above the rank of inspector has reason to believe that a publicmeeting or public procession is likely to take place or form in any public place in contraventionof s 7 or 13, he may cause access to that public place and to any other public place adjacentthereto to be barred and to be closed to the public or to any person or class of persons for suchtime as may be necessary to prevent the public meeting or public procession taking place.

(5) The closure of any public place under subs (4) shall be notified by means of noticesexhibited, or physical barriers erected, at the places of access thereto, or by oral publicannouncement in the vicinity thereof, or in such other manner as the police officer aforesaidmay think fit.

(6) Any police officer may use such force as may be reasonably necessary to prevent anyperson from entering or remaining in any public place to which access has been closed to himunder this section.

As to the meaning of “public meeting”, “public procession” and “public gathering”,see §31–51, below.

As to the meaning of “public place”, see §31–36, above.As to the meaning of “breach of the peace”, see §31–10, above.The assessment of the risk of a breach of the peace is one in terms of proximity both

in place and time; see Moss v McLachlan [1984] JPR 167.Section 17A(1)(c) makes it an offence for any person to, without the permission

of any police officer on duty there, knowingly enter or remain in a public place towhich access has been closed to him under s 17(4), and carries the penalty of a fineof HK$10,000 and imprisonment for 12 months.

Where police officers impose restrictions and directions in respect of a public pro-cession or public meeting on the grounds of public safety and public order, they mayenforce regulatory measures on the basis of the powers under Part III of the PublicOrder Ordinance and s 10(e) of the Police Force Ordinance (Cap 232): HKSAR v ToKwan Hang (unrep., HCMA 313/2010), CFI. As to the lawfulness of adopted measureswith respect to a public meeting or a public procession against the liberty of movementand the freedom from deprivation of liberty: see Saadi v United Kingdom (2008) 47EHRR 17, ECtHR GC; and Austin & Ors v United Kingdom (unrep., App Nos 39692/09,40713/09, 41008/09, 15 March 2012), ECtHR GC.

Apart from the statutory power, the common law also authorizes every citizen(whether policeman or not) in whose presence a breach of the peace is being, or reason-ably appears to be about to be, committed to take reasonable steps to make the personwho is breaking or threatening to break the peace refrain from doing so; and thosereasonable steps in appropriate cases will include detaining him against his will short ofarresting him: Albert v Lavin [1981] 3 All ER 878, HL.

Public Order Ordinance (Cap 245), s 17A(2), (3)

Offences in relation to sections 6, 7, 8, 9, 11, 13, 13A, 14, 15 and 1731–5117A.—(2) Where—

(a) any public meeting or public procession takes place in contravention of section 7or 13;

(b) three or more persons taking part in or forming part of a public gathering refuse orwilfully neglect to obey an order given or issued under section or

(c) three or more persons taking part in or forming part of a public meeting, publicprocession or public gathering, or other meeting, procession or gathering of personsrefuse or wilfully neglect to obey an order given or issued under section 17(3), thepublic meeting, public procession or public gathering, or other meeting, processionor gathering of persons, as the case may be, shall be an unauthorized assembly.

(3) Where any public meeting, public procession or public gathering, or other meeting,procession or gathering of persons, is an unauthorised assembly by virtue of subsection:

(a) every person who, without lawful authority or reasonable excuse, knowingly takes orcontinues to take part in or forms or continues to form part of any such unauthorizedassembly; and

(b) every person:


1814


(i) holds, convenes, organizes, forms or collects, or assists or is concerned in theholding, convening, organizing, forming or collecting of, any public meeting orpublic procession referred to in subsection (2)(a); or

(ii) continues or attempts to continue to hold or conduct, or to direct otherwise thanfor the purpose of securing obedience to an order given or issued under section6 or 17(3), any public gathering such as is referred to in subsection (2)(b), orany public meeting, public procession or public gathering, or other meeting,procession or gathering of persons, referred to in subsection (2)(c), after thesame has become an unauthorised assembly as aforesaid, shall be guilty of anoffence and shall be liable:

(i) on conviction on indictment, to imprisonment for five years; and(ii) on summary conviction, to a fine of HK$5,000 and to imprisonment for three years.

Section 2(1) of the Public Order Ordinance (Cap 245) defines:“procession” to mean a procession organised as such for a common purpose, and

includes any meeting held in conjunction with such procession;“public gathering” to mean a public meeting, a public procession and any other

meeting, gathering or assembly of 10 or more persons in any public place;“public meeting” to mean any meeting held or to be held in a public place; and“public procession” means any procession in, to or from a public place.An assembly of persons in a public place did not cease to be a public meeting when the

persons gathered there soon entered into coaches: Chow Shui v R [1979] HKLR 275, HC. Whether a number of moving vehicles constitute a public procession is a question of

fact to be decided according to the circumstances of the individual case and there maybe cases where the mere similarity, proximity or marked abundance of vehicles may initself be sufficient: Chow Shui v R.

As to the meaning of “public place”, see §31–36, above.As to the use of force by police officers under the Public Order Ordinance, see

§31–14, above. A public meeting may be held on a highway without it being unlawful per se, even if

it might amount to an obstruction of that highway: Burden v Rigler [1911] 1 KB 337, DC(Eng).

The present statutory requirement for notification of public meetings and publicprocessions was constitutional: Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, CFA.

(2) Indictment


31–52 Organizing an unauthorised assembly, contrary to sections 17A(3)(b)(i) of the Public Order Ordinance (Cap 245).


AB on the _____ day of _______ at _______, organised a public procession which took place incontravention of section 13 of the Public Order Ordinance (Cap 245), after such a public procession hasbecome an unauthorised assembly under section 17A(2)(a) of the Public Order Ordinance (Cap 245).

A charge of unauthorised assembly was not bad for duplicity if the events of the daycomprised one single continuous activity and did not give rise to separate transactions:Chow Shui & Others v R, above.

(3) Sentence


Section 17A(3) of the Public Order Ordinance (Cap 245) creates two distinctoffences. The offence under sub-section (3)(a) relates to the taking part or the continuing


1815

Sect. III] Public Meetings, Gatherings and Processions § 31–57A

to take part in an authorised assembly after the public meeting, gathering or processionhas become an unauthorised assembly without lawful authority or reasonable excuse.Genuine desire to present a petition in circumstances where it was unnecessary to pres-ent it en masse and not so urgent to preclude the seeking of a licence was not a reason-able excuse: Chow Shui & Others v R, above. The other offence created by section 17A(3)of the Public Order Ordinance seeks to penalise the holders, convenors, organisersof the unauthorised assembly, and also those who assisted in the holding, convening,organising, forming or collecting thereof.

Public Order Ordinance (Cap 245), s 17B

31–5417B.—(1) Any person who at any public gathering acts in a disorderly manner for thepurpose of preventing the transaction of the business for which the public gathering was calledtogether or incites others so to act shall be guilty of an offence and shall be liable on convictionto a fine of HK$5,000 and to imprisonment for 12 months.

(2) Any person who in any public place behaves in a noisy or disorderly manner, or uses, ordistributes or displays any writing containing threatening, abusive or insulting words, with intentto provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shallbe guilty of an offence and shall be liable on conviction to a fine of HK$5,000 and toimprisonment for 12 months.

As to the meaning of “public gathering”, see §31–51, above. As to the meaning of“disorderly manner”, see §31–7, above.

As to the meaning of “incite”, see §36–70, below. As to the meaning of “public place”, see §31–36, above.

31–55The mens rea of the offence of behaving in a disorderly manner in a public place isthat the defendant must have intended to commit the disorderly act: HKSAR v Tsui ChiYung (unrep., HCMA 1051/2006, [2007] HKEC 628), CFI.

For the purpose of preventing transaction of the business for which the public gathering was called

31–55AIn HKSAR v Chow Nok Hang & Anor (unrep., HCMA 193/2012, 20 July 2012), theCourt of First Instance held that “preventing” within the meaning of section 17B(1)does not require a complete stop or interruption; a temporary stop due to an obstruc-tion would suffice.

“Noisy or disorderly manner”

31–56As to the meaning of “disorderly”, see §31-7 above. The court is entitled to look at theconduct of the defendants over a period of time and to decide if such conduct is dis-orderly. The finding of disorderly conduct in the end may be based on one act or onconduct over a period of time: HKSAR v Wong Ying Yu & Others [1997] HKLY 236, CFI.See also HKSAR v Sit Kwok Fun (unrep., 31 March 1998, HCMA 1112/1997), where asubmission that a charge of disorderly conduct was duplicitous was rejected on the basisthat the misconduct continued as one incident.

“Threatening, abusive or insulting words”

31–57As to the meaning of “insulting”, see §31–7, above. The approach taken by the Houseof Lords in Brutus v Cozens, above, applies equally to “abusive” and “threatening”, andthese words are also to be interpreted in their ordinary meaning. Cf Coleman v Power(2004) 220 CLR 1, HC Aust; Harvey v DPP, (2012) 176 JP 265.

With intent to provoke a breach of the peace

31–57AIn HKSAR v Chow Nok Hang & Anor (unrep., HCMA 193/2012, 20 July 2012), theCourt of First Instance held that where a person chose to attract attention of others to


1816

§ 31–57A Public Order Offences [Chap. 31

his cause for objection to further a public demonstration by insulting or extrememeans, that person cannot, in the absence of any shouting of slogans or words to inciteothers, be said to have intended to provoke a breach of the peace.

“Where by a breach of the peace is likely to be caused”

31–58 The likelihood of a breach of the peace being occasioned is a requirement of theoffence under section 17B(2) and requires a specific finding: R v Kam Man Fai [1983] 1HKC 614, HC. See also R v Chan Chun Ching [1989] 2 HKLR 311, HC; HKSAR v YangYou Ching [1997] HKLY 237, CFI; HKSAR v Morter (unrep., HCMA 1319 of 2001), CFI;HKSAR v Morter [2003] 2 HKLRD 510, CFI; HKSAR v Wong Chi Hung [2005] HKEC1622 (unrep., HCMA 171 of 2005); HKSAR v Pearce [2006] 3 HKC 105, CFI; HKSAR vLau Shui Ping & Ors (unrep., HCMA 730/2008), CFI. As to the meaning of “breach ofthe peace”, see §31–10, above.

A speaker must take his audience as he finds it and, if the words spoken to thataudience were likely to provoke a breach of the peace, then he was guilty: Jordan vBurgoyne [1963] 2 QB 744. On the other hand, words of abuse directed to a policeofficer would not provoke the officer into violent retaliation and even abuse of thepolice in the presence of third parties did not ipso facto constitute incitement of thosethird parties to violence: R v Li Wai Kuen [1973–1976] HKC 346, HC; and HKSAR vMorter above. A similar consideration applies to security guards at the racecourse; seeHKSAR v Pearce, above. The court must consider whether the persons witnessing theconduct of the accused at the scene were in fact restrained in their approach or disposi-tion towards the disorderly conduct due to their duties or otherwise; and whether theywould be in breach of the peace themselves by reason of the disorderly conduct ofothers: HKSAR v Chow Nok Hang & Anor (unrep., HCMA 193/2012, 20 July 2012), CFI.

Public Order Ordinance (Cap 245), s 17E

Power of the Chief Executive to prohibit public gatherings31–59 17E.—(1) The Chief Executive in Council may, if he is satisfied that by reason of particular

circumstances existing in Hong Kong or in any part thereof it is necessary for the prevention ofserious public disorder to prohibit the holding of public gatherings in Hong Kong or any partthereof, prohibit the holding in Hong Kong or any part thereof of all public gatherings, or ofany class of public gatherings, for such period not exceeding 3 months as may be specified.

(2) Any person who: (a) takes part in the promotion, direction, organization or management of a public

gathering which is held or intended to be held in contravention of a prohibitionunder this section; or

(b) takes part in or attends, or incites any other person to take part in or attend, any suchpublic gathering,

shall be guilty of an offence and shall be liable on conviction to a fine of HK$5,000 and toimprisonment for three years.

As to the meaning of “public gathering”, see §31–51, above.

B. Other Offences under the Public Order

Ordinance (Cap 245)


Power to prohibit flags, etc31–60 3.—(1) Any police officer of or above the rank of inspector may:

(a) prohibit the display at a public gathering of any flag, banner or other emblem; (b) prohibit the owner, tenant, occupier or person in charge of any premises or place,

and the owner or person in charge of any vehicle, tramcar, train or vessel from per-mitting the display of any flag, banner or other emblem on or at the premises, place,vehicle, tramcar, train or vessel, if such police officer reasonably believes that the displayof any flag, banner or emblem is likely to cause or lead to a breach of the peace.


1817


(2) Where a prohibition is issued under subsection (1), any police officer may seize anddetain any flag, banner or emblem, and may if reasonably necessary—

(a) enter any premises or place; and (b) stop and board any vehicle, tramcar, train or vessel, using such force as may be

necessary for these purposes. (3) Any person who displays or permits the display of any flag, banner or other emblem in

contravention of any prohibition issued under subsection (1) shall be guilty of an offence andshall be liable on summary conviction to a fine of HK$5,000 and to imprisonment for two years.

(4) No prosecution for an offence under this section shall be instituted without the consentof the Secretary for Justice.

As to the meaning of “public gathering”, see §31–51, above. As to the meaning of “breach of the peace”, see §31–10, above.


Proposing violence at public gatherings31–6126.—Any person who, without lawful authority, at any public gathering makes any statement,

or behaves in a manner, which is intended or which he knows or ought to know is likely to inciteor induce any person:

(a) to kill or do physical injury to any person or to any class or community of persons; (b) to destroy or do any damage to any property; or (c) to deprive any person by force or fear of the possession or use of any property either

permanently or temporarily, shall be guilty of an offence and shall be liable:

(i) on conviction on indictment, to imprisonment for five years; and (ii) on summary conviction to a fine of HK$5,000 and to imprisonment for two years.

As to the meaning of “public gathering”, see §31–51, above. As to the meaning of “incite”, see §36–70, below.

C. Offences under The Summary Offences

Ordinance (Cap 228)

Summary Offences Ordinance (Cap 228), s 4

Nuisances committed in public places, etc31–62Any person who without lawful authority or excuse …

(17) organizes, provides equipment for, or participates in any collection of money or sale orexchange for donations of badges, tokens or similar articles in a public place except under andin accordance with a permit issued:

(i) for a collection, sale or exchange for charitable purposes, by the Director of SocialWelfare; or

(ii) for a collection, sale or exchange for any other purpose, by the Secretary for HomeAffairs; …

(23) plays at any game or pastime to the annoyance of the inhabitants or passers-by; or playsat any game or loiters in any public place, so as to obstruct the same or create a noisy assemblytherein; …

(28) does any act whereby injury or obstruction, whether directly or consequentially, mayaccrue to a public place or to the shore of the sea, or to navigation, mooring or anchorage,transit or traffic; …

shall be liable to a fine of HK$500 or to imprisonment for three months.

A defendant charged with an offence under s 4 of the Summary Offences Ordinancewho wishes to rely on the excerptions of “lawful authority or excuse”, is only required todischarge an evidential burden to adduce evidence in that respect for the court to con-sider: HKSAR v Lee Hing Kuen (unrep., HCMA 251/2010, [2010] CHKEC 578), CFI.

See, in this connection, R v Fung Chi Wood [1991] HKLR 654 on the scope of thesubs (17) offence.


1818


“Lawful authority”

31–63 Section 2(1) of the Summary Offences Ordinance (Cap 228) defines “lawful author-ity” to extend to and denote any permission which may be lawfully given by a publicofficer or department or by a private person. See also HKSAR v Pearce (unrep., HCMA740/2009, [2009] HKEC 2058), CFI.

“Lawful excuse”

A lawful excuse embraces activities that are lawful in themselves, which may or maynot be reasonable in all the circumstances: Hirst & Agu v Chief Constable of West Yorkshire[1987] Crim L R 330, DC (Eng). The prosecution has the burden of proving that thedestruction was without lawful authority or excuse and a person cannot be said to beacting without lawful excuse if his conduct involved a reasonable use of the highway orpublic place. Whether any particular instance of obstruction goes beyond what is rea-sonable is a question of fact and degree, depending on all the circumstances, includingits extent and duration, the time and place where it occurred and the purpose for whichit was done. When the obstruction results from a peaceful demonstration, the constitu-tionally protected right to demonstrate is introduced into the equation and must begiven substantial weight when assessing the reasonableness of the obstruction. Thebounds of what is reasonable must not therefore be so narrowly defined as to devalue orunduly impair the ability to exercise the constitutional right: Yeung May Wan & Others vHKSAR [2005] 2 HKLRD 212, CFA. Cf Abdul & Ors v Director of Public Prosecutions [2011]EWHC 247 (Admin). Where a person reasonably believes that he is exercising a funda-mental right such as the freedom of assembly, demonstration or expression in doingwhat he did, this, if proved, provides the basis for saying that he had the necessary lawfulexcuse: HKSAR v Yeung May Wan & Others [2004] 3 HKLRD 797, CA. If an act is unlawfulin itself the question of whether or not it is reasonable does not arise. Therefore, wherethe accused chained themselves to a flagpole belonging to another without permission,they committed a trespass and an unlawful act. The question of whether it was reasonablefor them to do so does not arise and the accused could not have had a lawful excuse forcommitting the act: HKSAR v Lau San Ching & Others [2004] 1 HKLRD 683, CFI.

“Public place”

31–64 Section 2(1) of the Summary Offences Ordinance (Cap 228) defines “public place”to include all piers, thoroughfares, streets, roads, lanes, alleys, courts, squares, archways,waterways, passages, paths, ways and places to which the public have access either con-tinuously or periodically, whether the same are the property of the government or ofprivate persons.

This definition was held not to admit of a department store: Chan Yuk Chun & Othersv R [1965] HKLR 693. Cf HKSAR v Choi Chau Cheung & Another (unrep., 6 July 2004,HCMA 380/2004), which was concerned with a passage at the ground floor of a build-ing connected via other similar passages to streets outside the building.

It is submitted that the definition in s 2(1) of the Summary Offences Ordinance isinclusive and must be read together with the definition of “public place” in the s 3 ofthe Interpretation and General Clauses Ordinance (Cap 1), which means: (a) any pub-lic street or pier, or any public garden; and (b) any theatre, place of public entertain-ment of any kind, or other place of general resort, admission to which is obtained bypayment or to which the public have or are permitted access. As to the meaning of“public place” under s 3 of the Interpretation and General Clauses Ordinance, see AG vHui Shu Sang [1993] HKLY 285, HC; Wu Chee Ling v Urban Council [1996] 1 HKLR 282,HKSAR v Wong Yiu Wah & Others [2002] 1 HKC 527, CFI; HKSAR v Yeung Hin KwongStevens (unrep., HCMA 604/2008, [2008] CHKEC 1128), CFI.

“Annoyance of the inhabitants or passers-by”

31–65 The character of an action may be such as to be likely to cause annoyance without theneed to prove annoyance to one or more persons: see Lau Chiu v R [1967] HKLR 144, FC.


1819

Sect. IV] Breach of Curfew § 31–68

“Act whereby obstruction accrued to public place”

31–66One of the main limbs of the offence requires that there must be an act whichdirectly or consequentially caused an obstruction to a public place. Any physical occupa-tion of a road which interfered (to an extent which was more then de minimis) with theuse of that road by others constitutes an obstruction: Yeung May Wan & Others v HKSAR[2005] 2 HKLRD 212, CFA.

The prosecution must prove that the accused caused an obstruction and that obstruc-tion was a deliberate obstruction as opposed to an accidental obstruction. The offence ismade out once the accused, without lawful authority or excuse, did an act wherebyan obstruction, whether directly or consequentially, may naturally have resulted in apublic place: HKSAR v Lau San Ching & Others [2004] 1 HKLRD, 683, CFI. An elementof the offence is whether the defendant knew that he was causing an obstruction toa public place: HKSAR v Fung Ka Keung Christopher & Another (unrep., 16 July 2002,HCMA 1014/2001, CFI).

Summary Offences Ordinance (Cap 228), s 4A

Obstruction of public places31–674A.—Any person who without lawful authority or excuse sets out or leaves, or causes to be set

out or left, any matter or thing which obstructs, inconveniences or endangers, or may obstruct,inconvenience or endanger, any person or vehicle in a public place shall be liable to a fine ofHK$5,000 or to imprisonment for three months.

As to “public place”, see §31–36, above. Section 4A of the Summary Offences Ordinance (Cap 228) makes the distinction

between the case where obstruction, etc is to be proved and the case where obstruction,etc, need not be proved: Yau Bun v R [1964] HKLR 364, HC. A person could not be saidto have caused something to be left unless it was proved either that he authorised it tobe deposited or that he had knowledge that it had been deposited and failed to removeit: ibid. See R v Chu Chuen [1977] HKLR 73. In dealing with a charge under this section,only the affect of the particularised matter needs to be considered: HKSAR v Yeung MayWan & Others [2004] 3 HKLRD 797, CA. Again it may not be necessary to prove obstruc-tion by evidence if the circumstances were sufficient; see Gill v Carson [1917] 2 KB 674;Wong Sang v R [1964] HKLR 883, HC; HKSAR v Yeung May Wan & Others (above).

IV. BREACH OF CURFEW


Curfew orders31–6831.—(1) The Chief Executive may, if he is satisfied that it is necessary in the interests of

public order so to do, by order (hereinafter referred to as a curfew order) direct that, withinsuch area and during such hours as may be specified in the curfew order, every person, or, asthe case may be, every member of any class of persons specified in the curfew order, shall, saveunder and in accordance with a permit issued by the Commissioner of Police under subsection(2), remain indoors.

(2) … (2A) … (3) A curfew order shall:

(a) come into force at such time as may be specified therein or, if no time is so specified,immediately upon the making thereof by the Chief Executive;

(b) be published in the Gazette as soon as may be reasonably practicable after the makingthereof; and

(c) remain in force for the period specified therein or until earlier cancelled by the ChiefExecutive in accordance with subsection (4).

(4) The Chief Executive may vary or cancel a curfew order by order which shall come intoforce and be published in like manner as that provided in subsection (3) for a curfew order.


1820


(5) Any person who contravenes: (a) any of the provisions of a curfew order; or (b) any condition to which a permit issued under subsection (2) is subject,

shall be guilty of an offence and shall be liable on summary conviction to a fine of HK$5,000and to imprisonment for two years.

(6) … (7) Whenever the Chief Executive considers it necessary, a curfew order may provide that

subsection (6) shall not apply in the case of that curfew order with respect to such of thepersons specified in that subsection as may be prescribed by the curfew order.

Sub-sections (2) and (2A) make provision for the issuing and cancellation of permitsby the Commissioner of Police and sub-section (6) sets out classes of persons who arenot subject to or obliged to comply with a curfew order when on duty or proceeding toor from duty.

31–69 Breach of a curfew order is a strict liability offence. The offence is committed bybeing outdoors at the time when the curfew order comes into force and taking part insome other illegal activity is not a necessary ingredient: Lo Yim Kai & Others v R [1966]HKLR 414, HC; Kwan Yiu Wing v R [1966] HKLR 752, HC.

IVA. CLOSED AREAS

Public Order Ordinance (Cap 245) s 36

Closed areas31–69A 36.—(1) The Chief Executive may, where he reasonably believes that it is necessary for the

protection of national security or public safety, or the protection of public order or publichealth, by order declare any area or place to be a closed area.

(2) An order made under subsection (1) shall come into force at such time as may bespecified therein or, if no time is so specified, immediately upon the making thereof by theChief Executive and shall be published in the Gazette as soon as may be reasonably practicableafter the making thereof.

(3) The Commissioner of Police and such other person as may be authorised in any ordermade under subsection (1) may cause a closed area to be closed by the erection of barriers orotherwise.

The following orders declaring an area a closed area are in force: Frontier ClosedArea Order (Cap 245 sub leg A); Military Installations Closed Areas Order (Cap 245 subleg B); Marine Closed Area (Consolidation) Order (Cap 245 sub leg E).

Further, s 4 of the Shenzhen Bay Port Hong Kong Port Area Ordinance (Cap 593) pro-vides that for the purposes of the Public Order Ordinance and any other enactmentthat applies to a closed area, the Hong Kong Port Area is a closed area within themeaning of the Public Order Ordinance: see HKSAR v Wong Jarn Kun (unrep., HCMA406/2011,11 July 2012), CFI. As to the Shenzhen Bay Port Hong Kong Port Area, see§2–155B above.

Public Order Ordinance (Cap 245) s 38

Prohibition on entering or leaving closed area without permit31–69B 38.—(1) Subject to subsection (2), any person who —

(a) enters or leaves a closed area save under and in accordance with a permit issuedunder section 37; or

(b) contravenes any condition to which any such permit is subject,shall be guilty of an offence and shall be liable on summary conviction to a fine of $5000 and toimprisonment for 2 years.

(2)…

[Sub-section (1) was amended by the Public Order (Amendment) Ordinance 1983(33 of 1983).]

Sub-section (2) provides that the prohibition in subs. (1)(a) does not apply to policeofficers, auxiliary police officers, members of the military forces stationed in the Hong


1821

Sect. V] Making of Threats § 31–71

Kong Special Administrative Region by the Central People’s Government of the People’sRepublic of China, and members of the Government Flying Service when on duty orproceeding to or from duty. It also provides that if the closed area is one in respect ofwhich a notice is published under s 38A(1) of the Public Order Ordinance (Cap 245)where the Commissioner of Police grants permission of any class or category specifiedin the notice to enter or leave the closed area during such times and subject to suchexceptions, conditions or restrictions as are specified in the notice, the prohibition insubs. (1)(a) does not apply to any person to whom the notice applies and who complieswith the terms thereof. The Commissioner of Police has granted such permission inrelation to the Frontier Closed Area under the Frontier Closed Area (Permission toEnter) Notice (Cap 245 sub leg H) for passenger traffic and in relation to the HongKong Section of the Shenzhen Bay Port Hong Kong Port Area under the ShenzhenBay Port Hong Kong Port Area (Permission to Enter) Notice (Cap 245 sub leg K) forvehicular and passenger traffic on conditions.

Permits allowing persons to enter and leave a closed area are issued under s 37 ofthe Public Order Ordinance (Cap 245) and, in the case of a closed area occupied bythe military forces stationed in the Hong Kong Special Administrative Region by theCentral People’s Government of the People’s Republic of China or for other purposesof the Central People’s Government, by the commanding officer of such military forcesor any commissioned officer in such military forces authorised by him for that purpose;and, in the case of any other closed area, by the Commissioner of Police or his delegateor by such authority or person as may be specified for that purpose by the Chief Execu-tive in the order made under s 36 of the same Ordinance. A permit issued under s 37will be subject to such conditions as the person by whom it is issued thinks fit, and maybe cancelled by such person at any time.

As to the power of arrest, see s 39 of the Public Order Ordinance (Cap 245), whichenlarged the power to enable any member of the military forces stationed in the HongKong Special Administrative Region by the Central People’s Government of the People’sRepublic of China, or any guard to make arrests in a closed area. Any person so arrestedmust be delivered into the custody of a police officer as soon as practicable. Section 39also empowers a police officer of or above the rank of inspector, with the assistance ofsuch other police officers as may be necessary, to detain and remove persons who are in aclosed area.

V. MAKING OF THREATS

A. General

31–70A range of criminal offences have as an ingredient the making of threats or the use ofthreatening behaviour. Section 18 of the Public Order Ordinance (Cap 245) refers to,inter alia, intimidating conduct and sections 17B(2) and 23 of the same refers to threatsor threatening words. All these sections are set out, above, in this Chapter.

Apart from these offences under the Public Order Ordinance (Cap 245), the prin-cipal criminal offences involving the making of threats are threats to kill, contrary to theOffences Against the Person Ordinance (Cap 212) (above, §20–124), threats to destroyor damage property, contrary to the Crimes Ordinance (Cap 200) (above, §24–25),blackmail, contrary to the Theft Ordinance (Cap 210) (above, §22–204), and false threatsof terrorist acts, contrary to the United Nations (Anti-terrorism Measures) Ordinance(Cap 575) (above, §26–37). See also s 24 of the Crimes Ordinance (Cap 200).

B. Bomb Hoaxes


Bomb hoaxes31–7128.—(1) Any person who:

(a) places any article or substance in any place whatever; or


1822


(b) dispatches any article or substance by post, rail, sea, air or any other means whateverof sending things from one place to another, with the intention of inducing someother person to believe that it is likely to explode or ignite and thereby cause personalinjury or damage to property shall be guilty of an offence.

(2) Any person who communicates any information which he knows or believes to be false toanother person with the intention of inducing him or any other person to believe that a bombor other article, substance or thing liable to explode or ignite is present in any place or locationwhatever shall be guilty of an offence.

(3) For a person to be guilty of an offence under subsection (1) or (2) it shall not benecessary for him to have any particular person in mind as the person in whom he intends toinduce the belief mentioned in those subsections.

(4) Any person guilty of an offence under this section shall be liable—(a) on summary conviction, to a fine of HK$50,000 and to imprisonment for three years; and(b) on conviction on indictment, to a fine of HK$150,000 and to imprisonment for

five years.

As to the nature of the intention prescribed for the offence in sub-section (1), seeHKSAR v Yip Chi Ming [2006] CHKEC 477, CFI.

The words, “There is a bomb”, said to the operator on a 999 call, were sufficient togive rise to an offence under sub-section (2) and it was not a necessary ingredient ofthe offence that the person communicating the false information should identify “aplace or location”: R v Webb, The Times, 19 June 1995, CA (Eng). The words, “Please donot move, or bear the consequences yourself ”, written on a cardboard placed on top ofa box that was placed on the street, was sufficient to justify an inference that the personcommunicating the false information had the requisite intent: HKSAR v Yip Chi Ming(supra).

VI. DESECRATION OF FLAGS AND EMBLEMS

National Flag and National Emblem Ordinance (116 of 1997), s 7

31–72 7.—A person who desecrates the national flag or national emblem by publicly and wilfullyburning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liableon conviction to a fine at level five and to imprisonment for three years.

As to level fines, see section 113B and Schedule 8 of the Criminal Procedure Ordin-ance (Cap 221). A level 5 fine stands current at HK$50,000.

Section 2 of the National Flag and National Emblem Ordinance (116 of 1997)defines “national emblem” to mean the national emblem of the People’s Republic ofChina adopted by the Eighth Session of the Central People’s Government Committeeon 28 June 1950 with specifications set out in Schedule 1 of the same; and “nationalflag” to mean the national flag of the People’s Republic of China adopted by resolutionof the First Plenary Session of the Chinese People’s Political Consultative Conferenceon 27 September 1949 with specifications set out in Schedule 2 of the same. Further,section 8 of the same Ordinance provides that a copy of the national flag or nationalemblem that is not an exact copy but that so closely resembles the national flag ornational emblem as to lead to the belief that the copy in question is the national flag ornational emblem is taken to be the national flag or national emblem for the purposesof the Ordinance.

Section 7 of the National Flag and National Emblem Ordinance (116 of 1997) washeld to be a justified restriction on the rights to freedom of expression guaranteedunder the International Covenant on Civil and Political Rights and therefore did notcontravene the Basic Law of the Hong Kong Special Administrative Region: HKSAR vNg Kung Siu & Another [1999] 3 HKLRD 907, CFA.

“Defiling” includes dishonouring and accordingly carrying and waving a defacedflag in public, having chosen the same for its defaced condition, was to defile the flag:HKSAR v Ng Kung Siu & Another, above.


1823

Sect. VII] Loitering § 31–74

Regional Flag and Regional Emblem Ordinance (117 of 1997), s 7

31–737.—A person who desecrates the regional flag or regional emblem by publicly and wilfullyburning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable—

(a) on conviction on indictment to a fine at level 5 and to imprisonment for three years;and

(b) on summary conviction to a fine at level 3 and to imprisonment for one year.

As to level fines, see section 113B and Schedule 8 of the Criminal Procedure Ordin-ance (Cap 221). A level 5 fine stands current at HK$50,000.

Section 2 of the Regional Flag and Regional Emblem Ordinance (117 of 1997)defines “regional emblem” to mean the regional emblem of the Hong Kong SpecialAdministrative Region endorsed at the Fourth Plenum of the Preparatory Committeeof the Hong Kong Special Administrative Region on 10 August 1996 with specificationsset out in Schedule 1 of the same; and “regional flag” to mean the regional flag of theHong Kong Special Administrative Region endorsed at the Fourth Plenum of the Pre-paratory Committee of the Hong Kong Special Administrative Region on 10 August 1996with specifications set out in Schedule 2 of the same. Further, section 8 of the sameOrdinance provides that a copy of the regional flag or regional emblem that is not anexact copy but that so closely resembles the regional flag or regional emblem as to leadto the belief that the copy in question is the regional flag or regional emblem is taken tobe the regional flag or regional emblem for the purposes of the Ordinance.

Section 7 of the Regional Flag and Regional Emblem Ordinance (117 of 1997) washeld to be a justified restriction on the rights to freedom of expression guaranteedunder the International Covenant on Civil and Political Rights and therefore did notcontravene the Basic Law of the Hong Kong Special Administrative Region: HKSAR vNg Kung Siu & Another [1999] 3 HKLRD 907, CFA.

“Defiling” includes dishonouring and accordingly carrying and waving a defacedflag in public, having chosen the same for its defaced condition, was to defile the flag:HKSAR v Ng Kung Siu & Another, above.

VII. LOITERING

(1) Statute

Crimes Ordinance (Cap 200), s 160

31–74160.—(1) A person who loiters in a public place or in the common parts of any building withintent to commit an arrestable offence commits an offence and is liable to a fine of HK$10,000and to imprisonment for six months.

(2) Any person who loiters in a public place or in the common parts of any building and inany way wilfully obstructs any person using that place or the common parts of that building shallbe guilty of an offence and shall be liable on conviction to imprisonment for six months.

(3) If any person loiters in a public place or in the common parts of any building and hispresence there, either alone or with others, causes any person reasonably to be concerned forhis safety or well-being, he shall be guilty of an offence and shall be liable on conviction toimprisonment for two years.

(4) In this section “common parts”, in relation to a building, means—(a) any entrance hall, lobby, passageway, corridor, staircase, landing, rooftop, lift or

escalator; (b) any cellar, toilet, water closet, washhouse, bathhouse or kitchen which is in common

use by the occupiers of the building; (c) any compound, garage, car park, carport or lane.

As to the meaning of “public place”, see section 3 of the Interpretation and GeneralClauses Ordinance (Cap 1), which defines the expression to mean: (a) any public streetor pier, or any public garden; and (b) any theatre, place of public entertainment of anykind, or other place of general resort, admission to which is obtained by payment or to


1824


which the public have or are permitted access. This is the applicable definition: R v ChiuMing (unrep., 12 November 1986, HCMA 1060/1986). As to the meaning of “publicplace” under section 3 of the Interpretation and General Clauses Ordinance, see Att-Genv Hui Shu Sang, above; Wu Chee Ling v Urban Council, above; HKSAR v Wong Yiu Wah &Others, above; and HKSAR v Yeung Hin Kwong Stevens, above. A shop is a public place forthe purposes of section 160 of the Crimes Ordinance (Cap 200): R v Ng Chun Yip [1985]HKLR 427, HC.

As to arrestable offences, see s 3 of the Interpretation and General Clauses Ordin-ance (Cap 1), which defines the expression to mean an offence for which the sentenceis fixed by law or for which a person may under or by virtue of any law be sentenced toimprisonment for a term exceeding 12 months, and an attempt to commit any suchoffence.


“Loiters”

31–75 Loitering means “idling, lingering or hanging about”: R v Mok Chi Ho [1979] HKLR118, HC; R v Ng Chun Yip, above. Another formulation is “tarrying, standing about orlingering”: A-G v Sham Chuen [1986] HKLR 365, CA. Cf Tong Yiu Wah v HKSAR [2007] 3HKLRD 565, CFA (which emphasised that the word “loiter” was to be construed in thelight of the context in which it appears in the particular enactment, so that loitering inthe Airport Bylaw Area was held to mean idling, lingering or hanging about in theAirport Bylaw Area apparently not for the ordinary and legitimate purposes connectedwith the use of the Airport). Driving around in a motorcar or sitting in a stationary carmay amount to loitering: R v Mok Chi Ho, above. Following a woman and then makingan attempt to take a photograph up her skirt may amount to loitering: HKSAR v ChauCheuk Yin [2003] 4 HKC 483, CFI. The same applies to using a mirror to look up theskirt of a woman in front of the accused on an escalator: HKSAR v Wan Joi Yu (unrep.,HCMA 1163/2003), CFI. There must however be sufficient evidence of loitering beforethe accused got on the escalator or while he was on the escalator: HKSAR v Li Jacob[2008] 3 HKC 544, CFI.

“Well-being”

Being far from “happy and contented” due to the defendant’s action is being con-cerned for one’s well being: R v Ng Chun Yip, above. The question of whether a personwas reasonably concerned for his safety or well-being was an objective test, not subjec-tive. Thus the perception of a 12-year-old boy that the defendant appeared to him to becruel did not, by an objective standard, provide a reason for the boy to be concerned forhis safety or well-being: HKSAR v Chan Man Chun [2004] 1 HKLRD 641, CFI.

VIII. DEFAMATORY LIBEL

Introduction

31–76 For more detail in relation to this offence, see the UK editions of Archbold: CriminalPleading, Evidence and Practice prior to 1994.

For seditious libel, see §§26–67 et seq, above; for libel affecting the administration ofjustice, see §§30–40 et seq, above; for obscene libel, see §33–48, below.

Definition

31–77 A defamatory libel is the expression or conveying of a defamatory statement by writ-ten or printed words or in some other permanent form. A defamatory statement is a


1825

Sect. VIII] Defamatory Libel § 31–80

statement which, if published of and concerning a person, is calculated to expose himto public hatred, contempt or ridicule, or to damage him in his trade, business, profes-sion, calling or office.

The libel does not have to have been calculated to provoke a breach of the peace, aswas once thought, but it must probably be serious, not trivial: Gleaves v Deakin [1980] AC477, HL; Desmond v Thorne [1983] 1 WLR 163, QBD (Taylor J).

As to the compatibility of an offence of criminal libel with guarantees of freedom ofexpression, see Worme v Commissioner of Police of Grenada [2004] 2 AC 430, PC. The publica-tion must be in permanent form, which includes a broadcast: Defamation Ordinance(Cap 21), section 22.

Leave to commence prosecution

31–78Defamatory libel is indictable only, though a magistrate is empowered to deal with acharge of defamatory libel summarily by imposing a fine of HK$250 upon conviction ifhe is of the opinion that, though the person charged is shown to have been guilty, thelibel was of a trivial character, and that the offence may be adequately punished byvirtue of that power; see Defamation Ordinance (Cap 21), s 16. Leave of a judge inchambers is required before commencing a prosecution against a proprietor, publisher,editor or any person responsible for the publication of a newspaper for any libel pub-lished therein: s 18(1) Defamation Ordinance. This does not include a journalist:Gleaves v Insall [1999] 2 Cr App R 467, DC (Eng). For definitions of “newspaper” and“proprietor”, see s 2 Defamation Ordinance.

Defences

31–79These mean absolute privilege, qualified privilege, fair comment (probably), justifica-tion for the public benefit (Defamation Ordinance (Cap 21), s 7) and publication with-out authority, consent or knowledge (Defamation Ordinance, s 8). For further detail,see the editions of Archbold: Criminal Pleading, Evidence and Practice prior to 1994;and as to s 7, see Worme, §31–77 above.

As to the separate functions of judge and jury, see the Defamation Ordinance, s 7A.

Penalties

Defamation Ordinance (Cap 21), s 5

Publishing libel known to be false31–805. Any person who maliciously publishes any defamatory libel, knowing the same to be false,

shall be liable to imprisonment for 2 years, and, in addition, to pay such fine as the court mayaward.

Although the section contains the word “maliciously”, it is unnecessary to provemalice in the sense of an intention to defame, or even to aver it in the indictment: R vMunslow [1895] 1 QB 758, CCR (Eng).

Although neither an intention to defame nor knowledge of falsity have to proved atcommon law, knowledge of the libel itself as opposed to mere knowledge of the book ornewspaper containing it does have to be proved: Vizetelly v Mudie’s Select Library Ltd[1900] 2 QB 170, CA (Eng). But this principle will not operate to exonerate a defend-ant who did not know of the libel, but ought to have known of it, and it is for thedefendant to prove that he was not negligent: ibid.

Where the statutory offence is charged but the prosecution fails to prove knowledgethe jury may convict of the common law offence: Boaler v R (1888) 21 QBD 284. As topenalty for the common law offence, see the s 101I Criminal Procedure Ordinance(Cap 221). See also §5–49, above.


1826


Proof of certain matters

31–81 As to proof of the proprietorship of a newspaper, see s 17A(3) Registration of LocalNewspapers Ordinance (Cap 268).

As to the duty of printers (a) to print their name and address on papers and booksprinted by them and (b) to keep at least one copy of any book, local newspaper orprinted document for a period of six months after printing and to record thereon thename and address of the person or persons who employed them to print the paper, seethe Printed Documents (Control) Regulations (Cap 268, sub leg C) regs 2, 9.

Pleadings

31–82 For a specimen indictment, plea of justification and replication, see the editions ofArchbold: Criminal Pleading, Evidence and Practice prior to 1994.

There do not appear to be any reported cases of criminal defamation in Hong Kong.


Date post:	28-Nov-2015
Category:	Documents
Upload:	hklabourbook
View:	207 times
Download:	1 times