Professional Documents
Culture Documents
B B
DCCC 536/2020
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[2021] HKDC 398 C
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IN THE DISTRICT COURT OF THE
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HKSAR
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v
I LAI CHEE YING (D1) I
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Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading
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Mr Jeffrey C K Tam and Mr Ernie Tung instructed by C
st
Robertsons for the 1 defendant
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Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr
知而參與未經批准集結)
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O O
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P
REASONS FOR VERDICT P
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2. The particulars of Charge 1 are that all defendants on 18 C
August 2019 organised a public procession which took place in
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contravention of section 13 of the Public Order Ordinance, which was an
K BACKGROUND K
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4. On 12 August 2019 the Civil Human Rights Front,
M hereinafter known as “CHRF” submitted a notification of intention to M
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(3) a 2nd public assembly at Chater Road itself between 5pm
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and 11:59pm (Exh P2). C
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5. There was a liaison meeting between CHRF and the police
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6. On 15 August 2019 the police issued a letter to CHRF, a
I letter of no objection, a “LONO”, to say the police did not object to the I
objected to both the public procession from the Park to Chater Road and
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the 2nd public assembly to be held there upon arrival. (Exh P5 & 5A)
M M
CHRF.
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after that. On 17 August 2019 they said the police had not arranged for
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the dispersal of crowds from Victoria Park therefore, pro-democracy
S legislators and influential people would be assisting the crowds to S
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A A
B B
C
9. On 18 August 2019 during the public assembly at Victoria C
Park and at about 3pm, all bar one of the defendants carried a long banner
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out of Victoria Park Gate 17 and led a procession of people to Chater
E Road Central. The 3rd defendant joined them in Causeway Bay and helped E
to carry the banner. The timing and route taken followed the previously
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proposed route of the banned public procession. The procession finished
G at Chater Road with the defendants laying the long banner down on the G
road and it was declared that the public procession had ended.
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I THE ISSUES I
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10. Did the defendants organise and knowingly participate in an
K unauthorised public procession or were they only assisting the organisers K
to disperse the crowds from Victoria Park in a safe and orderly manner?
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Were they leading the crowds away from immediate danger? Did they
M have lawful authority or a reasonable excuse to take part in a public M
and at the same time as proposed for the banned public procession.
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12. There are constitutional challenges from all defendants on a
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systemic level as well as an operational level. They will come into play if C
I find the prosecution has proved a charge or the charges beyond
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reasonable doubt.
E E
13. Simply put, the defence submits these offences should not
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carry a criminal sanction and/or the maximum sentence of 5 years that
G can be imposed is too severe to be proportional and constitutional. The G
defence submits that the sole legitimate aim for imposing criminal
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sanctions is to ensure the compliance with the notification system and
I therefore the restrictions arising from section 17A (3) are not rationally I
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15. It is the prosecution’s case that the defendants deliberately
Q flouted the law and knowingly ignored the ban by the police by Q
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banner leading thousands of participants who were told to follow them to
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leave Victoria Park at about 3:09pm. The proposed banned public
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procession by CHRF was originally earmarked to start at 3pm. The
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banner group arrived at Chater Road at about 4:38pm. C
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16. The prosecution say the defendants had knowledge that the
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17. It was a disingenuous excuse to flout the law by describing
I their actions as a dispersal plan to lead crowds out of the park and to I
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18. The prosecution says that this procession consisted of more
M than 30 people and with the words “stop the police and gangsters from M
Those words coincided with the purpose of the public assembly that was
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allowed at Victoria Park; to protest against the abuse of their powers by
Q the police. Q
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19. There is much video footage of the public assembly in
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Victoria Park and the procession leaving from Gate 17 in Victoria Park to
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Chater Road. There is much video footage of the banner party comprising
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of all the defendants walking at the head of that procession to Chater
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Road. This includes what they did, who said what, which route they took
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and how it ended. There is video footage of many press conferences and C
statements made by the CHRF and some defendants as well as the Police.
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The CHRF spoke to the press after their appeal was dismissed on 16
E August, again from Victoria Park on 17 August and at the public meeting E
on the day. There are transcripts and translations of the liaison meeting
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and some press conferences. None of this evidence was challenged.
G G
20. In the admitted facts, P1, all parties agreed that between 10
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June and 11 August 2019, violence erupted during some protest events
I including confrontation between civilians and police officers. The I
M 21. In the LONO there are the details of the event allowed and M
given to them by the police on the day. In a second letter to CHRF after
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the appeal hearing, P23 & P23A, the police stressed these conditions.
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their public procession to Central and the 2 nd public meeting was banned.
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They stressed to the police that the public procession was necessary to
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ensure there was no danger of overcrowding in Victoria Park. They
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estimated 300,000 people would attend the public meeting, more than C
Victoria Park can accommodate.
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E 23. After the police ban, it was said publicly before and on 18 E
August 2019 that the police did not have a dispersal plan for crowd
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management control and the safety of participants. It was publicly
G declared during the press conference of 17 August that CHRF had invited G
K 24. The defence say that the defendants only assisted CHRF that K
day in a dispersal plan described as water flow measures. They had not
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intentionally organised or knowingly participated in an unauthorised
M assembly. CHRF had to implement their own dispersal plan because the M
crowds; therefore, the defendants had lawful authority to lead the crowds
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out to Central. The police left that to CHRF.
Q Q
S Prosecution Witnesses S
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25. I have considered the oral evidence of the prosecution
C
witnesses and exhibits referred to and produced. The evidence of the C
witnesses was not challenged in that there were discrepancies in their
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own evidence or amongst them that suggest unreliability. It is more a case
E of what the police witnesses didn’t say suggests the defence case was E
credible. It is more a case of what they didn’t say that is incredulous and
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unbelievable.
G G
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27. I will highlight the salient points of the evidence of the
O prosecution witnesses. None of these witnesses dealt directly with any of O
the defendants in relation to this case, these charges, the permitted public
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meeting and the decision to ban the proposed procession and 2nd meeting.
Q No organiser of the public meeting is amongst the defendants. Q
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28. PW1, Superintendent Simon Cheung Wing Kan was the
S Commander of North Point Division at the time. Victoria Park was within S
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a public event action checklist to PW2, Senior Inspector Tang Chun Ho.
C
The purpose of the checklist was to identify any foreseeable hazards and C
assess risk. PW1 classified the proposed public meeting as a significant
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public event. PW2 was also appointed as an assessor to complete a public
Officers who would on the day liaise with and contact the organisers,
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CHRF, in particular the person in charge. PW6 and PW7 give evidence of
M their liaison duties and contact with the person in charge, Figo Chan on M
O 31. As the only authorised event was in Victoria Park which was O
in North Point Division, PW1 was the immediate commander of the event
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of the day (para 22 of P49).
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32. Under cross examination, it was put to him that the police
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deliberately did not implement crowd management controls nor control
S traffic on the day. It was part of their responsibility which they S
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33. PW1 did agree the duties of CHRF marshals in leading or
C
directing crowds away from the venue was part of the police solution to C
the possible overcrowding hazard. He expected the crowds to act in
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accordance with their directions. This part of his evidence was quoted in
F F
34. PW2, Senior Inspector Tang Chun Ho gave evidence of the
G hazards he identified and risk assessment he made. He was attached to the G
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35. Normally for big public events in the park, participants enter
K from the East and West side where Causeway Bay MTR and Tin Hau K
create a queueing zone for people to safely enter Victoria Park from the
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East. In his experience, the North side, South side and higher hill part of
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the park would be used for dispersal. If necessary, the police would ask
C
the traffic unit to facilitate dispersal. C
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37. In cross examination he gave evidence that he did not know
the park to various MTR stations. It was suggested to him that the police
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deliberately did not supply the manpower to implement their tidal flow
I method. He could not answer this as he had left the scene by 2:30pm. He I
went back to North Point to deal with internal security works of that
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station. He agreed that the park was already becoming crowded between
K 1 and 2pm. K
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38. PW3 was Chief Inspector Sin Pui Man who was then the
M Senior Inspector of Operation Wing HKQ. She attended the liaison M
few times. She knew that in the past CHRF had asked crowds at public
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meetings in Central to leave by MTR in groups so others could arrive.
Q She had to report to her senior after the meeting, PW4 who went on to Q
make the decision to only allow the public assembly in Victoria Park.
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PW3 was instructed to prepare the LONO, P5.
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39. She was mainly asked by PW4 if CHRF had any measures
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in place to prevent violence erupting or stopping trouble makers in the
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crowds. PW4 confirmed in her evidence that that was her main concern
C
because of recent violent outbreaks after public events. C
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40. PW3 also attended the Appeal Board hearing. She knew
E they did not judicial review the decisions because she was not informed E
as such. She agreed in cross examination that the police have said that
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CHRF have adopted a peaceful, rational and nonviolent approach to their
G events in the past and that they have cooperated well with the police. G
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41. Her evidence was that on the day, she was at Command
I Office of Hong Kong Island, HICOM and not at Victoria Park. She said I
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42. She was shown video footage but did not agree that Victoria
M Park was packed with people by 3pm. She said there was still room in M
other places within the Park. It was normal practice for public events at
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Victoria Park to use the main lawn and other areas if the football pitches
O filled up. She did agree that people were still streaming in at that time. O
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43. PW4, Superintendent Chow Wing Yee was in August 2019
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the Acting Senior Superintendent OPS HKI region. It was her decision to
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allow the application for a public meeting at Victoria Park and ban the R
nd
public procession and 2 public meeting proposed. On the day, it was her
S S
duty to monitor the holding of this public meeting as well as monitor the
T whole of Hong Kong Island region to see if anything would happen that T
day.
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C
44. She spent the day at HICOM monitoring the day through C
telephones, beat radios as well as live feed on televisions and the Internet.
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She was aware that 3 platoons had been deployed outside Victoria Park
E led by Chief Inspector Chan Lai Man, PW5. She was also aware that he E
had withdrawn all 3 platoons in the afternoon; he called her to tell her of
F F
his decision and she did not object. According to the operation order he
G was meant to redeploy his 3 platoons at the commencement of the public G
inside Victoria Park liaising with the organisers, PW6 and 2 others
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outside the park, PW7.
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46. She gave a full reason as to why she had decided not to
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deploy police officers having based this decision on risk assessment and
O to ensure public safety, public order and to protect the rights and O
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47. She decided that if the police gave warnings to the
S organisers and participants for this unauthorised public procession or took S
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disruptively and violently. Other than conflict between police and some
C
members of the public there was also a risk of conflicts between members C
of the public with opposing views. She did not want visible police
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presence or any enforcement action to trigger or provoke the emotions of
E the crowd. To avoid conflict, she decided not to deploy any police E
officers visible to the participants.
F F
G G
48. In short, she considered the circumstances and found it did
H not permit warnings to be given to the defendants on the day without H
inciting violence and conflict. After all, the procession and public
I I
meeting was against the police for their abuse of power. Giving a warning
J was not her prime consideration. Her duty was to make sure all members J
of the public were safe including the participants, public not protesting
K K
and all her police officers. In any event, there were no police officers on
L route to give warnings. L
M M
49. That did not mean however, there were no police officers on
N hand if any incidents occurred, she had deployed police officers nearby at N
O
the Central tunnel in Causeway Bay, Southorn playground in Wanchai,
O
North Point station and other stations. All close enough to ensure public
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order and public safety as well as respond quickly if necessary but out of
Q
sight and mind to minimise the risk of confrontation. It was not the case Q
that the police did not plan any preparation for issues arising but that the
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police were deliberately deployed out of sight.
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50. In cross examination she said one of the reasons she refused
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the public procession to and the public meeting in Central was that the
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organisers could not suggest any effective means to prevent violence and
C
maintain public order and safety. Any public procession then would have C
been classified as a high-risk activity because of the violence that had
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broken out in Hong Kong in recent months.
E E
51. She was cross-examined at length about the manpower
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inside Victoria Park. That responsibility belonged to the Command of
G North Point Division but she did explain that the tidal flow tactic had G
been used by the police for many years successfully and it would be
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implemented if necessary. She agreed the police had a duty to take
I measures to ensure the safety of the public but the police also heavily I
relied on the organiser and the marshals, in this case over 200 marshals
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were required, to carry out the duty of asking people to leave and disperse
K so that others who were waiting in queueing zones could come in if that K
circumstance arose.
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M 52. PW4 explained that the police always required the help of M
facilitate but as with all decisions made by the police, it will depend on
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risk assessment of the day in question.
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T
rectification such as more manpower for crowd control management; no
T
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report was made by the organisers for assistance nor was any report made
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to the police. C
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54. She did not agree in cross examination that the hazard of
55. In cross examination she said she had not heard CHRF
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mention a water flow meeting in press conferences nor had she heard that
K legislators would assist people to disperse from the park. She watched the K
public procession proceed from Victoria Park to Central and saw that no
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violence erupted; no violence erupted anywhere in Hong Kong Island
M which she took as a sign her risk assessment was correct. It was the right M
O 56. It was put to her that the defendants leading people out of O
She said the lack of violence was not due to this but because their
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decision not to deploy visible police officers at all was the correct
C
decision. C
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57. She reiterated that the police had banned the proposed public
E procession. The crowds at the authorised public meeting could just enter E
and leave without problem. This meant that CHRF did not need to take
F F
up any task of dispersing the crowd; dispersal was not an issue at 3pm
G when the defendants left with a long banner. G
H H
58. PW5 Chief Inspector Chan Lai Man was in August 2019 the
I Assistant Divisional Commander Ops. North Point Division. He led 3 I
was stationed at the West entrance closest to Causeway Bay MTR. It was
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in these 2 directions that participants normally entered Victoria Park for
M public events. M
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59. To facilitate those entering from the East, the police closed
O off and reserved the Hing Fat Carpark and the Public Transport O
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60. As the number of people arriving increased, his officers were
S subject to a barrage of verbal abuse, foul language and insults. In the S
morning briefing they had been told to take a tolerant attitude to the
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crowds and exercise restraint. At about 1pm when even more people
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arrived to enter the park the abuse escalated in their direction. The
C
platoon at the West entrance was subjected to similar abusive behaviour. C
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61. By about 2pm the abuse was intolerable in that it was a
E constant stream. His view was that the situation was only going to get E
worse and the crowds greatly outnumbered his officers. He made a
F F
decision to tell his officers to leave traffic duty and move away from the
G crowd. He recalled the other platoon from the Causeway Bay entrance as G
well. He had assessed the situation and found the emotion of the crowd
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hostile and in order to avoid any conflict or violence that would endanger
I public safety and order he had decided to withdraw all 3 platoons from I
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64. There was no defence evidence that he and the platoons were
C
not subject to such abuse leading to his decision to withdraw to avoid any C
conflict as suggested.
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E 65. He said they left at 2:30pm and he could see that the Public E
Transport Interchange was not full nor used for queueing to get in yet. He
F F
did not see any choke points at Gate 7 and 14 by the time he left which
G were normally used for ingress. The crowd was moving in from the east G
slowly but steadily; there were no crowd issues before he left. They had
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actually implemented tidal wave measures at Gate 7 and 14 for the
I crowds arriving but abandoned them when the abuse escalated. I
J J
66. He said these measures at these Gates were commonly
K implemented for crowd control, for example at the 4 June vigil that year K
but the atmosphere was very different and the police were not the target
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of abuse and insults.
M M
the organisers that day. She had 2 sergeants with her, mainly for her own
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protection. She arrived at Victoria Park with colleagues and her superior;
S her superior was stationed outside Victoria Park during the event. She S
spent the day under or near the raised stage and marquees close to the
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organisers.
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C
68. According to the LONO, the person in charge from CHRF C
nd
was Figo Chan. She first saw him at about 1pm with the 2 defendant,
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Mr. Lee Cheuk Yan. She chatted with Figo Chan and reminded him that
E if there were too many people for all the football pitches then he was to E
tell the crowds to go to the main lawn and other places in Victoria Park.
F F
She also reminded him that the public procession had been banned. When
G she spoke to him the 2nd defendant was still close by. G
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69. By about 2:15pm PW6 saw most of the defendants arrive at
I the marquees under the stage. She saw Ms Ng Ngoi Yee, D3 arrive first I
and then Mr Leung Kwok Hung, D4, Mr Jimmy Lai Chee Ying, D1, Mr
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Martin Lee Chu-Ming, D8, Mr Leung Yiu Chung, D7 and Mr Ho Chun-
K Yan, D6. She disagreed in cross examination that she was spying on them K
as they arrived.
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just after 3pm all the defendants except D3 left Victoria Park through
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Gate 17 carrying a long white banner and headed westward towards
O Causeway Bay. D3 joined the banner party minutes later on Causeway O
T
senseless. It was suggested to her that her advice was not mandatory.
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However, it is clear the content of her advice can leave no one in doubt
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she meant it as a direction. She said she used that description as that is the
C
practice of the police. C
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72. At about 2:30pm, Figo Chan and other CHRF organisers
E went up on the stage and started talking to the crowds. At about 3pm she E
was told the football pitches were quite full so she went to talk to Figo
F F
Chan and give him advice for the 1 st time. PW6 told him to tell the
G crowds to go the Central Lawn if the pitches were full and if people were G
J J
73. Figo Chan heard her and understood but when he went back
K up to the stage, he only told the crowds to go to the lawn if no space on K
pitches. She had no recollection he told the crowd to use the 2 MTR
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Stations she specified to leave the park.
M M
74. At about 3pm she saw D1 and D2 with some marshalls leave
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the marquees and head towards Gate 17 on the south side of the
O Park with a long rolled up banner. She lost sight of them in the crowds. O
She could not follow them as she had to remain near the stage and pay
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attention because by then the speeches were mainly about the abuse of
Q powers by the police. Q
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75. She heard Figo Chan shout at 3:07pm (transcript/translation
S P46A & P46B) and tell the crowds that if they could not leave from S
Causeway Bay, then they should leave from Wanchai. If they could not
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leave from Wanchai, then they should leave from Admiralty. If they
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could not leave from Admiralty, then they should leave from Central. He
C
asked the crowd if that was okay and they all shouted loudly in C
agreement. PW6 then saw people face towards Gate 17 and start walking
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in that direction to leave the park.
E E
76. PW6 then heard on her beat radio that the crowds were
F F
leaving via Gate 17 and some were already on Causeway Road on the
G carriageways obstructing traffic. She knew that the lawn was not yet full G
so she gave Figo Chan advice the 2 nd time at 3:20pm. She told him to tell
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the crowds that if people were leaving they were to leave by Tin Hau and
I Causeway Bay MTR Stations and also not to walk on the carriageways I
but proceed to those MTR stations on pavements. She told him to relay
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the message on the stage. Her recollection was that he only told people to
K fill the lawn and did not repeat her other instructions. K
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77. Since he did not follow her instructions, after about 20
M minutes PW6 asked him to come down off the stage again before giving M
him advice for the 3rd time. By then it was about 3:40pm. She repeated
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her advice and gave him specific instructions on which walking routes to
O tell the crowds to take to go to those 2 designated MTR stations. He even O
challenged her and said it was not feasible to use the 2 MTR stations so
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she checked on her beat radio and was told it was feasible; they were
Q open and operating. She is sure he heard her but when he went back on Q
stage, he did not relay her directions to the crowds. He did not convey her
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advice or instructions to the crowds as he was required.
S S
78. By then she said it was obvious that the crowds she could
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see on football pitches Nos. 4 and 5 near her were queueing up to leave
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the park via Gate 17. The organisers on the stage were giving speeches
C
and chanting slogans; the emotions of the crowd was running very high. C
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79. She heard on her beat radio that by then the crowds were all
E over the carriageways of Causeway Road and Hennessy Road. She also E
heard on her beat radio that the MTR had announced they would consider
F F
trains skipping certain stations according to the prevailing situation but
G that the MTR stations were not closed. G
H H
80. Her evidence was that at no time did she receive any
I complaint from the organisers that there was overcrowding in the venue I
and they needed any assistance from the police. She received no
J J
complaints of any problems for participants entering or leaving the venue.
K There were no police report made of any problems of overcrowding. K
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81. It was suggested to PW6 in cross examination that the police
O were to blame as suggested by the organisers onstage. They said the O
disparaging statements all day long. In fact, after 3:40pm she could not
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get him down off the stage to talk to her. He just ignored her.
S S
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own safety, she decided not to take any action. She also wanted to keep
C
the relationship as harmonious as possible as the liaison officer. She did C
report to her commanders that he had failed to follow police instructions.
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It was suggested to her in cross examination that she might be wrong in
E her recollection that she gave him advice 3 times but she disagreed. She E
st
disagreed her recollection of the timing of the 1 advice was wrong.
F F
J J
84. She disagreed in cross examination that the organisers were
K adamant that the public procession was for the purpose of orderly and K
safe dispersal from Victoria Park when discussed at the liaison meeting.
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She did recollect that the organisers had a lot of personal opinions and
M expressed them when it was suggested that there would only be a public M
85. She did not recall the term “water flow meeting” being used
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in the liaison meeting although she had heard of that expression but not
Q given its meaning much thought. She said she had not given the Q
police don’t have or use a water flow manner method in their practices or
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operations. They implement tidal flow measures if necessary.
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B B
C
86. PW7, Chief Inspector Wu Man Yee was PW6’s superior and C
had instructed her to station herself by the stage and liaise directly with
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the organisers for the day. PW7 herself was outside Victoria Park to
F F
87. At 3:15pm she was on the flyover above Causeway Road
G between the Central Library and Victoria Park. It gave her a better view G
of the proceedings plus some shelter from rain. At that time, she saw the
H H
defendants carrying a long banner leaving Gate 17. They were at the head
I of the procession with a group of reporters in front of them. She saw I
many people following them as they headed westward. In her view, it was
J J
an unauthorised public assembly, a public procession. She did report what
K she saw to the command post. K
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88. She was also in the liaison meeting but had no recollection
M of the words “water flow” but she did recall they were uttered during M
discussions that did not touch upon the meeting inside Victoria Park.
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They were matters for other districts so she did not pay close attention.
O She did not see the subsequent press conferences of the organisers but did O
hear about them on the news; in summary they said that the meeting in
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Victoria Park would still proceed.
Q Q
89. It was suggested to her that she could have warned the
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defendants or stopped the unauthorised procession. She said it was only
S herself and a sergeant on the bridge with no equipment, ammunition or S
protective clothing. In any event, it was for her seniors in the command
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post to decide if any action would be taken having assessed the situation.
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C
90. PW8, Chief Inspector Ku was tendered for cross C
examination as the chair of the liaison meeting on 14 August. In cross
D D
examination he said Acting Senior Superintendent, PW4 had told him to
E discuss with the organisers in the meeting only holding a public meeting E
and not a public procession for the sake of safety and public order.
F F
him that the public procession would end in Central and they intended to
H H
disperse the crowd in a water flow manner. He understood Figo Chan to
I mean using the normal and previously implemented procedure by the I
organisers, “the old ways”, to divide participants up into group when they
J J
arrived in Central at Chater Road to disperse to different MTR entrances
K and certain pavements. K
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92. PW8 was referred to the transcript of the liaison meeting as
M he could not recall details of 18 months ago. He agreed that the transcript M
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93. When he later met his senior, her most pressing concern and
Q question was whether the organisers would follow their previous Q
procedures and whether they had any plans to deal with any violence that
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erupted or trouble makers amongst the crowds. He does recollect PW3,
S Chief Inspector Sin, reporting to PW4 that the organisers had not S
suggested any concrete measures. He did not add anything because PW4
T T
U U
V V
A A
B B
did not ask him nor gave him time to speak. He agrees he did not repeat
C
all the grievances of the organisers. C
D D
94. On the day he was at HICOM and saw the defendants
E leaving Victoria Park with the long banner from live broadcasts by news E
channels. He was responsible for liaising between other districts, regions
F F
and formations. He was there to provide help or support if required.
G Essentially if anyone needed help or reinforcement they would call him G
but on that day there were no such requests; specifically, no calls for
H H
assistance with crowd management duties. Wanchai and Central Division
I had no contact with him for any assistance that day. I
J J
95. In cross examination he did not find the concerns expressed
K by the organisers at the liaison meeting valid. He said there was a lower K
risk to public safety and peace in society if there was only a public
L L
meeting in Victoria Park as opposed to a public procession through Hong
M Kong Island. M
N N
96. In his view a crowd of 300,000 was feasible if there was a
O control of the flow of pedestrians and speed they travelled. Crowd control O
S 97. PW9 and PW10 were not police officers. PW9, Mr Chan S
was a Station Manager from MTR Corporation and his statements were
T T
exhibited as P53 and P53A. He explained that all stations were open and
U U
V V
A A
B B
operating on 18 August but there were times when some trains skipped
C
stations depending on the pedestrian flow and the number of people on C
the platforms.
D D
E 98. If trains were coming in and people could not get off safely E
because of crowds at that platform and lobby, then the train would skip
F F
that station and continue on to the next. In his annex he set out how many
G trains went to each station and how many skipped stations between which G
hours on 18 August 2019. He also explained which and why exits became
H H
one directional flow at certain times. He explained why some Gates
I changed from entry to exit between certain hours. I
J J
99. PW10, Mr Leung was from the Transport Department and
K his statement at P52. He confirmed in cross examination that the official K
18 August 2019.
N N
ban.
R R
T T
U U
V V
A A
B B
101. This evidence is important and therefore to be highlighted. It
C
is important for what was said to the public over several days by CHRF C
and some defendants before 18 August 2019. This equally applies to the
D D
video and audio footage of the defendant’s actions on the day.
E E
102. MFI-3 is a helpful chart of the videos relied on including
F F
their exhibit numbers, date, source, reference to the 4 trial bundles,
G whether parts were played in open court and any remarks such as location G
filmed. It also shows how many different news channels broadcast the
H H
same news. It sets out what relevant news was widely disseminated to the
I people of Hong Kong. I
J J
103. Before the appeal board decision to uphold the police ban
K Chief Superintendent Tse Ming Yeung, CSP Tse, held a press conference K
supported the police decision to ban it then anyone taking part will be
T T
accused of participating in an unauthorised assembly.
U U
V V
A A
B B
C
105. During that conference, instructions were given which C
Victoria Park Gates to use to enter the public meeting and to use the lawn
D D
and other areas of the park if the football pitches were full. It was said
F F
106. During the question and answer session, CIP Tse said the
G police would coordinate with the organiser CHRF to carry out effective G
whether crowds waiting to enter the park or leave in the facility who were
J J
stagnant would be accused of committing a crime. The police would
K make a judgement whether that was actually the case or that people were K
N N
107. Annex 1(A) of the Prosecution’s Amended Opening sets out
O the wide circulation of the CIP Tse’s press conference on 16 August O
to ban the public procession was based on public safety and public order
T T
considerations.
U U
V V
A A
B B
deep disappointment and anger with the Appeal Board decision and what
G G
they saw as a restriction on their fundamental rights.
H H
110. Sham Tsz-kit Jimmy of the CHRF also spoke and said if
I I
they had a procession on 18 August which is peaceful, rational and
J J
nonviolent then Carrie Lam had to respond to their 5 demands. He urged
K
people to come and jam Victoria Park first and then it would be
K
reasonable for the jam to reach Wanchai.
L L
M
111. The 9th defendant, Au Nok-hin spoke at that same interview M
urging more and more Hong Kong people to come out on the day because
N N
they lost the appeal. He said the police had to bear the consequences of
P P
112. Annex 1(B) of the Prosecution’s Amended Opening sets out
Q the wide circulation of that CHRF press interview and the statement of SP Q
U U
V V
A A
B B
113. On 17 August, Sham Tsz-kit, together with the 2 nd, 4th and 9th
C
defendants held a press interview to explain how the public meeting C
would proceed on 18 August. It was covered in P28 to P31, with the full
D D
interview seen in P28 and transcribed and translated at P31 & P31A.
E E
114. Essentially, that press conference was to express their
F F
extreme regret that only the public meeting in Victoria Park was
G approved. It was said the police would not answer how participants would G
way of a water flow meeting. The gist of the first two speakers from
L L
CHRF was that the public meeting would go ahead and if the park was
M jammed full they had requested a group of pro-democracy legislators to M
CHRF and Hong Kong people so they will deal with it flexibly. He said
R R
that on the day they will have a way to deal with the police who were
S playing tricks. Their way would be “lawful, peaceful and rational, the S
entire act of protest, that is, everyone lines up to enter Victoria Park and
T T
lines up to leave Victoria Park”.
U U
V V
A A
B B
C
117. The 4th defendant said “the procession tomorrow” will be a C
st
peaceful one and that this was the 1 CHRF application for a procession
D D
to have been refused so he hoped people will come out and act like water,
prevent Hong Kong people from expressing their views and they would
H H
“definitely go hand-in-hand as one man and walk together until the end.”
I I
assembly.”
L L
before the start of the public meeting at about 1:45pm; video P45,
R R
transcript and translation P45A & P45B. Organisers told the press they
S could only organise a public meeting but not a public procession and that S
the purpose of the meeting was to “stop the police and gangsters from
T T
plunging Hong Kong into chaos and to implement the 5 demands”.
U U
V V
A A
B B
C
121. They voiced their concern the police would disperse C
participants if there were too many and violence may be used against
D D
those outside the park. They announced Legislators would lead the crowd
E to leave Victoria Park to several MTR stations but it was not a march. It E
was emphasised it was not a march but legislators leading the crowd
F F
peacefully from Victoria Park so more could enter.
G G
R R
124. At 3:07pm Figo Chan on the stage, after a reading of the 831
S manifesto declared to the participants that Victoria Park was full but the S
police still refused to close off Causeway Road for access. Then he said
T T
very loudly “it’s cleared, right? It’s cleared?” as if to confirm road
U U
V V
A A
B B
closure. There was loud applause. He then said the police had requested
C
everyone to leave Victoria Park in a water flow manner. C
D D
125. Prosecution witnesses have denied that roads were closed by
E the police. They were blocked by participants entering the Park. It was E
denied the police requested CHRF to disperse people in a water flow
F F
manner. Despite this, Figo Chan went on to tell people to get up and
G follow legislators assisting the crowds to leave Victoria Park. He said at G
15:08:38 “if you can’t leave from Causeway Bay, go to Wanchai. If you
H H
can’t leave from Wanchai, then go to Admiralty. If you can’t leave from
I Admiralty, go to Central, okay?” to loud cheers. I
J J
126. Prior to this announcement and instruction PW6 had seen
K almost all the defendants arrive by the stage before she saw the 1 st and 2nd K
is a map of Victoria Park with gates labelled in red and P48 is a map of
N N
Causeway Bay to Central.
O O
127. The video footage shows a long banner printed with the
P P
words “Stop the police and gangsters from plunging Hong Kong into
Q chaos, implement the 5 demands” and a caricature of a female with a Q
wounded bloody eye was unfurled and carried by all the defendants to
R R
leave through Gate 17. All but the 3 rd defendant who joined the banner
S party minutes later on Causeway Road. Not long after the banner party S
U U
V V
A A
B B
128. The 2nd defendant held a microphone and walked in front of
C
the banner for most of the way to Chater Road. He led the chanting of a C
variety of slogans with a microphone and loudspeaker. As he chanted
D D
those participants behind and around him would repeat after him or
129. This banner party was wide and long but made even wider
H H
and longer by a black cordon or rope that surrounded it and the
I defendants, held up by others. The banner party and this cordon took up I
big the banner party was with a black cordon around them.
L L
out of Victoria Park. On the way to Chater Road, the 2 nd defendant was
N N
often heard appealing to and urging pedestrians to go to Victoria Park
O first and then come out because this was a water flow meeting, P43B. The O
slogan “jam pack Victoria Park” could be heard often, in particular from
P P
the 2nd, 4th and 9th defendants.
Q Q
Central, Ice House Street and stopped on Chater Road where the banner
T T
was laid on the road outside the Court of Final Appeal building.
U U
V V
A A
B B
C
132. Along the route which took about 90 minutes to walk, not C
one defendant mentioned dispersal nor dispersal by this or that MTR
D D
entrance as they walked near or passed them. Some of the chanting has
E been transcribed and translated; they identify the speaker where possible, E
see P33A & B, P35A & B, P36A & B, P39A & B, P40A & B and P43A
F F
& B.
G G
133. When they arrived in Central they turned down Ice House
H H
Street to arrive at Chater Road. That road and several other roads in
I Central are pedestrianised on a Sunday and in the shelter of a footbridge I
helpers to leave the carriageway and help them move all their cardboard.
L L
show they were in this together. For example, in the transcript and
P P
translation P40B at page 143 at 4:27pm the 9 th defendant is recorded as
Q giving directions out loud as to how they will proceed down which roads Q
to arrive at Chater Road. The 4th defendant then chants repeatedly “I have
R R
the right of procession. No police permission is required” and “I have the
S right to protest”. The 9th defendant shouts the same chant. S
T T
U U
V V
A A
B B
135. At 4:38pm the 2nd defendant told the crowd and procession
C
that they have arrived in Central now. They were now at the finishing C
point, people could now disperse and this was a water flow pattern walk
D D
from Victoria Park to Central. Immediately after, the 4 th defendant
E repeated his chants that police permission was not required and he has a E
right of procession. The banner party are still all together at this stage.
F F
G 136. Dispersal is mentioned for the 1st time when the 2nd G
defendant said to the crowd, “you are welcome to disperse using the
H H
MTR station here”. The crowd was told they were welcome to walk back
I as “it’s a free marching day in Hong Kong today”. At 4:42pm the 2 nd I
defendant continued and said the route they took from Victoria Park
J J
equaled the procession they had originally planned so their procession
K can be very peaceful. These points are repeated several times over. K
L L
137. On the day, the police did not arrest or take any enforcement
M action against the banner party, the defendants. They were arrested later M
V V
A A
B B
all carriageways on its path. Even neighbouring roads to those
C
carriageways were blocked. Vehicles, taxis and buses were trapped on C
Gloucester Road and its flyover. Video footage shows an ambulance
D D
being unable to proceed along Causeway Road.
E E
139. The evidence of PW10 from the Transport Department
F F
comes from his statement P52 which sets out from 1pm at intervals, what
G roads were temporarily blocked. The first part of his statement sets out G
road closure records on Hong Kong Island until past midnight and the
H H
second part sets out what public transport was truncated or diverted for
I the whole city, not just Hong Kong island. I
J J
140. It is not disputed there is video footage of a black clad
K protester repeatedly kicking traffic cones near the procession route on K
O 141. It can be seen from the same footage that there were many O
people on the blocked off roads and gathered outside the Central
P P
Government Offices; some were shining laser lights into the premises
Q over the water barriers. They were clearly aimed at police vehicles parked Q
inside and police officers just inside the building. When a police vehicle
R R
moved it was bombarded by laser beams which must have made it
S difficult to drive. A viewing of P46 from about 8:30pm until past S
midnight shows that road closed with more and more people arriving on
T T
the carriageways of Harcourt Road outside those offices.
U U
V V
A A
B B
C
142. There are several occasions where there was news footage of C
violence towards a member of the public. At 8:18pm on P46 a man in red
D D
is loudly accused of being an undercover police officer then a triad. The
H DEFENCE SUBMISSIONS H
I I
143. All defendants submit that the court can construe from the
J J
evidence of the prosecution witnesses, in particular PW4, that the police
K
were relieved that their lack of enforcement or action against the banner
K
party resulted in a peaceful procession desired by the police. Therefore,
L L
one can draw the inference that the police were trying to achieve that
M
result. The police knowingly tolerated this procession and tacitly M
consented to CHRF organising the dispersal in this manner even though
N N
the police had publicly banned such a procession.
O O
144. Much emphasis was placed on the liaison meeting where the
P P
organisers set out their reasons for the necessity of a public procession
Q when it was suggested only a public meeting would be allowed. They Q
U U
V V
A A
B B
145. It was suggested that the widely circulated news of the
C
CHRF press conferences and interviews meant the police were well C
aware of the water flow dispersal plan the organisers openly said they had
D D
to plan in advance. It was described as implausible that the police
E witnesses did not hear of or understand the meaning of this water flow E
dispersal plan when it was mentioned on so many occasions.
F F
made a conscious decision not to ask CHRF about this water flow
H H
meeting, what they intended to implement or advise them that it would be
I an unauthorised procession. It was described as implausible that police I
witnesses on the ground on the day, like PW6 or PW7 did not liaise with
J J
the organisers on the subject or warn them officially not to organise a
K procession out of the park. K
L L
147. The police said in the operation order, P49 that they had
M intelligence the public procession may proceed despite the ban. The M
defence say this was deliberate because the police relied on the organiser;
T T
it was incumbent on the organiser to arrange dispersal. After all, PW1
U U
V V
A A
B B
agreed under cross examination that he hoped and expected the crowds to
C
follow directions given by the marshals of CHRF. C
D D
149. It was suggested that the lack of police deployment in or
E around the park was deliberate to set a trap for the defendants; it was a E
politically motivated decision.
F F
the defendants had organised the public procession. Ms Eu SC for the 1st
H H
defendant argued there was insufficient evidence to prove he was an
I organiser as such. The news coverage clearly indicated the banner party I
M
organiser from CHRF, did not attend any press conference and did not M
chant slogans nor urge participants to join in a water flow meeting from
N N
the Park to Central.
O O
152. It was suggested by Ms Eu and adopted by all other defence
P P
counsel that the banner party did not direct the route. They were led by
Q others; there was no evidence they dictated the route therefore they did Q
not organise the procession. The fact they were in front and carrying a
R R
banner is not sufficient to infer they were organisers. The fact that the
S dispersal route was substantially the same as the banned procession S
st
supports the submission it was not the 1 defendant or other defendants
T T
who organised or planned it.
U U
V V
A A
B B
C
153. It is submitted that the prosecution witnesses were evasive C
and not telling the whole truth. It was submitted that what they did say
D D
about the operation that day supports the submission that the banner party
E had reasonable grounds to believe that the water flow meeting was known E
to and therefore tolerated as well as tacitly consented to by the police.
F F
The prosecution has been unable to prove beyond reasonable doubt that
G the defendants organized and knowingly participated in the alleged G
I MY FINDINGS I
J J
154. As I have said, I will first determine on the facts if the
K prosecution has proved beyond reasonable doubt all the elements of the K
offences. They do not fall or stand together. The defendants do not fall or
L L
stand together.
M M
propensity.
P P
are not required to prove their innocence. It is for the prosecution to prove
R R
each element of the offence beyond reasonable doubt.
S S
V V
A A
B B
no defendant has given evidence proves nothing, one way or the other. It
C
does nothing to establish their guilt. However, this means that there is no C
evidence from the defence to undermine, contradict or explain the
D D
evidence presented by the prosecution. I refer to Li Defan v HKSAR
F F
158. I am assisted by oral and written submissions from all of the
G defence, marked MFI-5 to MFI-9 respectively. I emphasise again that it is G
simply not practical in the course of these Reasons for Verdict for me to
H H
attempt to cover every aspect of the evidence of every witness; to identify
I individually and discuss every argument or submission made by I
individual counsel for the prosecution and the defence. The defendants
J J
adopted each other’s final submissions. That I do not mention a
K particular piece of evidence, transcript, video recording, submission or K
S 160. I am sure it was not a dispersal plan born out of necessity but S
V V
A A
B B
procession as opposed to a dispersal from the Park. Similarly, I am sure
C
the prosecution can prove there was no lawful authority or reasonable C
excuse to organise or participate in this possession.
D D
E 161. On the face of it, the news footage shows what can only be E
described as a procession with designated leaders in the front that set off
F F
from Victoria Park. There were express instructions from the organisers
G to follow those leaders out of Gate 17. It was described as a dispersal to G
MTR stations. Yet and this is important, there was no evidence that
H H
overcrowding was an imminent hazard before 3pm and no evidence that
I dispersal was not possible through the usual exits and 2 MTR stations I
used during public meetings at Victoria Park. The park was becoming full
J J
and there were still participants entering slowly due to their large
K numbers but that was no evidence that exit routes were inaccessible or K
M 162. In fact, there was evidence from PW6 that she had given M
163. On the face of it, the news footage shows what can only be
R R
described as a public procession with thousands following as the head of
S the procession chanted slogans relating to the common purpose all the S
way to what is described as the finish. There was not one word relating to
T T
the crowd behind them dispersing safely at MTR stations nearby, be it
U U
V V
A A
B B
Causeway Bay, Wanchai or Admiralty. There was no assistance given to
C
the crowd as to how to leave safely. This is contrary to what was C
described as a water flow dispersal to nearby MTR stations to disperse
D D
safely.
E E
164. Moreover, what was chanted indicates that the intention was
F F
to organise and participate in an unauthorised assembly in direct defiance
G of the police ban. Nearing and in Central, it was declared that police G
permission was not required and there was a right to a procession. This
H H
was repeatedly and loudly chanted within the cordon of the banner party
I yet none of the other defendants left the group upon hearing this I
finish.
L L
M 165. I have carefully considered all that said by the CHRF and the M
2nd, 4th and 9th defendants in press conferences or interviews after the
N N
appeal failed and before the procession began and find there was a call to
O attend the public meeting and show dissatisfaction at the police ban by O
the gist of the message was that the police ban restricted the right of
R R
freedom of assembly and expression but Hong Kong people could be
S flexible and get around this ban by holding a procession in the name of S
dispersal. What was suggested was to deliberately flout the law openly by
T T
claiming it was necessary for safety reasons. A reading of all the
U U
V V
A A
B B
transcripts and not just highlighting certain sentences and the phrase
C
“water flow” clearly reveals this message and intention. C
D D
167. The 4th defendant told the public to attend the public meeting
E and then “be water” which was a saying adopted by protesters in 2019 to E
keep the police on their toes by being anonymous, spontaneous, flexible
F F
and disperse quickly – like the flow of water. He promised to walk to the
G end with everyone hand-in-hand. This sounds more like a rallying cry G
N N
169. Instead of assisting the crowds to disperse safely, those
O crowds were led head on into other oncoming crowds in Causeway Bay O
by the banner party forcing the procession to move very slowly and
P P
forcing people coming in the opposite direction to move to avoid them.
Q The banner at one stage had to be folded in half lengthways to get Q
through the oncoming crowd. There was also footage of people in front of
R R
the banner party being asked politely to clear away for the procession. If
S safety was paramount and dispersal the object, then this flies in the face S
U U
V V
A A
B B
170. I am sure this public procession was not about dispersal of
C
crowds. That was a description used to defy the law and circumvent the C
ban. This intention was vocalised repeatedly and publicly days before the
D D
public meeting. It was only a dispersal plan in name and the truth is it
F F
171. It was symbolic for the defendants to lead this procession on
G almost exactly the same route and at the same time as the proposed G
J J
172. Has the prosecution proved the defendants had knowledge
K
they were taking part in an unauthorised assembly? As declared in the
K
press interview on 17 August the ban on the public procession was a first
L L
for CHRF hence, their outrage. It was newsworthy and widely
M
broadcasted. M
N N
173. It was specifically mentioned in the almost daily 4pm police
R R
174. All of the defendants have ties to democratic parties or
S support the pro-democracy movement, many were well known legislators S
V V
A A
B B
It is common knowledge that CHRF is an organisation that is affiliated
C
with almost all pan-democratic groups in Hong Kong. It is significant that C
the organisers issued an invite to influential people known for their pro-
D D
democratic stance because of who they were and what they stood for to
F F
175. Therefore, I am sure the wide news coverage of the police
G objection and the disappointment and anger of the organisers coupled G
for it to proceed.
J J
The prosecution has relied on the facts of the case and also Flockhart v
N N
Robinson (1950) 2 KB 498.
O O
T T
U U
V V
A A
B B
178. In Flockhart the majority of the Court held that, “as the
C
essence of a procession was that it proceeded along the route, the person C
who directed its route was the person who organised it;…”. It was said
D D
that the word “organise” is not a term of art. When a person organises a
E procession, what does he do? The person who organises the route is the E
person who organises the procession.
F F
unlikely the procession would have come into being. It is clear they
H H
agreed to be the head of the procession and led the direction in which the
I procession was to proceed. The fact that not all of them spoke or gave I
N N
181. The agreement of the defendants to be the banner party
O leading the public procession when they knew of the police ban supports O
the prosecution’s case that they were part of the organisers. I find the
P P
evidence supports and proves the element of organisation of an
Q unauthorised assembly that day and it is applicable to all defendants. Q
R R
182. This also applies to the 3rd defendant who did not leave with
S the banner party through Gate 17 but joined them minutes later. I take S
into account she was seen and photographed with most of the other
T T
U U
V V
A A
B B
defendants inside the park by the organisers red marquees just before the
C
procession started. C
D D
183. I do not accept the defence submission that because they
E were not named as part of the organisers of the public meeting nor E
involved in the application for a LONO, they cannot be defined as
F F
organisers. Also, the fact that some of the defendants did not chant
G slogans or make any speeches to motivate or galvanise participants does G
not mean they were only following the instructions of the organisers
H H
CHRF and were not organisers themselves.
I I
prove they were in fact dictating the route to him and he only followed. It
L L
was submitted he only responded to an invitation to lead a dispersal party
M which does not make him an organiser. M
N N
185. With respect, there is no evidence of why he or any of the
O other defendants were there despite suggestions in submissions. There is O
R R
186. There was much emphasis in submissions and in cross
S examination of prosecution witnesses on the duty of the police at this S
V V
A A
B B
their inaction when the organisers did not follow instructions and the
C
defendants unfurled a banner to lead a procession out. C
D D
187. The police headquarter orders from 2005 (P50) and 2019
E (P51) as well as the operational order for the public meeting of 18 August E
2019 (P49) do set out the duties of the police at public events and were
F F
the subject of many questions and submissions. It was highlighted in
G submissions that in P49 the police set out their bottom line in paragraph G
34 where it states they will adopt a flexible and facilitating approach for
H H
this public meeting and reminded the force of the need for tolerance,
I commonsense; not to take action except for certain stated behaviour. I
J J
188. Ms Eu submitted that the information in this operational
K order indicated the police knew that there would be a dispersal plan K
carried out by the organisers along a similar route of the proposed banned
L L
procession. It is submitted the police anticipated overcrowding was a real
M hazard and likely to materialise. They acquiesced to CHRF implementing M
were not briefed on that likelihood. It is not credible they took no action
R R
against Figo Chan ignoring instructions at the scene nor is it credible that
S no one acted, reacted or considered whether enforcement action was S
U U
V V
A A
B B
190. It was stressed the police have powers to prevent or stop any
C
unauthorised assembly under S17 of the Public Order Ordinance C
therefore action should have been taken and warnings should have been
D D
given. I do not agree with the submission from Mr Lok SC for the 6 th and
E 8th defendants when Ms Po, his learned junior submitted a warning from E
the police to the defendants was essential for the prosecution to prove an
F F
offence had taken place.
G G
presence in the park and on route to Central. Her reasoning and own risk
J J
assessment of police visual presence and any enforcement action
K including warnings resonated with the tone of PW1’s operational order K
for that specific public meeting. After all, the public meeting was to
L L
protest against the abuse of police powers.
M M
those circumstances.
R R
U U
V V
A A
B B
whether the defendants intended to organise and participate in an
C
unauthorised assembly. C
G G
195. I do not find merit in the submission that the prosecution’s
H evidence supports a defence of lawful authority or reasonable excuse. H
K
PW6.
K
L L
196. I do not accept Ms Po’s submission that because the police
M
withdrew when they had a duty to facilitate the meeting to protect the M
public and ensure public order and at a time when she said CHRF needed
N N
them most, they abandoned that duty and they abandoned their role to
O protect the rule of law. She submits their abandonment means there was O
reasonable excuse for the participation of the defendants.
P P
Q 197. I reject the defence submission that the police tolerated the Q
public procession and even tacitly consented to it. I do not accept they
R R
turned a blind eye. I believe the police made a conscious decision to
S operate in a way to minimise any risk of violence or confrontation that S
day. I accept the evidence that they planned their operation either before
T T
or on the day with the information they had and were constantly receiving
U U
V V
A A
B B
in such a way to ensure this and to protect public order, public safety and
C
protect the rights and freedoms of others. C
D D
198. In view of this and my findings above, I am sure that there
H H
199. Ms Eu has submitted that even if I were to find the 1st
I defendant was an organiser and knowingly participated without lawful I
O 200. It was submitted that because of the very real risk of serious O
V V
A A
B B
defence of duress of circumstances which has, without going into the
C
relevant case law, taken over in cases which would have come under C
necessity. Duress operates to provide an excuse for breaking the law.
D D
L L
203. As a result of my findings above, there is no evidence of any
M situation where death or serious physical injury was imminent. Necessity M
was not the sine qua non of the commission of the offences. This defence
N N
is not available.
O O
V V
A A
B B
in. The addition of those defences does no violence to the underlying
C
legislative intent but on the contrary, it gives efficacy to the whole C
scheme under the POO. His submission was adopted by all.
D D
E 205. I agree with the prosecution when they say this point is E
academic because the defendants cannot establish lawful authority or
F F
reasonable excuse in the facts of this case. I also agree that in any event,
G it must be deliberate that these defences are available for one charge and G
J J
CONCLUSION
K K
206. I have taken the totality of the evidence into account, this
L L
means the oral evidence, documentary evidence and all of the video
M footage of news coverage before 18 August and of that date. The M
V V
A A
B B
which took place in contravention of s13 of the POO which was an
C
unauthorised assembly by virtue of s17(A)(2)(a). All the elements of C
Charge 1 have been proved.
D D
I CONSTITUTIONAL CHALLENGES I
J J
210. All defendants have launched a constitutional challenge of
K both s17A(3)(b)(i) and s17A(3)(a) of the POO on a systemic level and an K
N N
Systemic Proportionality Challenge
O O
U U
V V
A A
B B
212. The defence unanimously drew a distinction between a
C
peaceful and a non-peaceful unauthorised assembly to argue that the C
imposition of criminal sanctions where there was a peaceful unauthorised
D D
assembly would disproportionately restrict the right to freedom of
E assembly. E
F 213. It was submitted that the sole legitimate aim for imposing F
criminal sanctions where there was a peaceful assembly was to ensure the
G G
compliance with the notification system therefore the subject offences
H were not rationally connected with the legitimate aim. It was submitted H
K
therefore an unacceptable burden on the defendants.
K
L L
214. The defence also unanimously submitted that the maximum
M
term of imprisonment of 5 years that could be imposed for a breach of M
these offences is too severe; so severe it is disproportionate. So severe it
N N
had a chilling effect on those that wished to exercise the right to freedom
O of assembly. O
P P
215. Courts recognise certain constitutional guaranteed rights are
Q absolute and never subject to a proportionality analysis. Where Q
guaranteed rights are not absolute, the law can create restrictions limiting
R R
such rights. The courts can question those restrictions and it will do so by
S subjecting them to a proportionality analysis. S
T T
U U
V V
A A
B B
216. Article 39 of the Basic Law states the provisions of the
C
ICCPR and other international conventions as applied to Hong Kong will C
be implemented through our laws. Article 39 (2) states that the rights and
D D
freedoms enjoyed by Hong Kong residents shall not be restricted unless
H H
“Hong Kong residents shall have freedom of speech, of the
press and of publication; freedom of association, of assembly,
I of procession and of demonstration; and the right and freedom I
to form and join trade unions, and to strike.”
J J
218. Article 17 of the BORO guarantees the right of peaceful
K K
assembly as follows;
L L
“The right of peaceful assembly shall be recognised. No
M
restrictions may be placed on the exercise of this right other M
than those imposed in conformity with the law and which are
necessary in a democratic society in the interests of national
N security or public safety, public order (ordre public), the N
protection of public health or morals or the protection of the
rights and freedoms of others.”
O O
restrictions are imposed, including those for preserving public safety and
Q Q
public order, and protecting the rights of others. The courts will apply a
R narrow interpretation to those restrictions to protect the constitutional R
right to peaceful assembly but people must still exercise that right in a
S S
lawful manner. Hong Kong people do enjoy the same freedoms of
T assembly, speech, procession and demonstration as other advanced and T
U U
V V
A A
B B
free societies worldwide. Similarly, in those other countries, those
C
freedoms are subject to the prescribed laws of their own jurisdiction. C
D D
220. That means Hong Kong people are obliged to respect the
E laws that are in force even those that restrict these rights. As Hon Yeung E
VP said in Secretary for Justice v Wong Chi Fung & Others (2018) 2
F F
HKLRD 699;
G G
“3. …Any act of protest or demonstration for which the police
H have not issued a Notice of No Objection, or in which violence H
or the threat of violence is used to express one’s opinions,
crosses the boundary of the peaceful exercise of the rights and
I enters the territory of unlawful activities; it becomes an I
unlawful act which interferes with the rights and freedoms of
J
others.” J
K 221. Hon Yeung VP said in that authority that “in recent years, an K
court.
T T
U U
V V
A A
B B
223. Leung Kwok Hung, the 4th defendant here, was convicted of
C
holding an unauthorised assembly contrary to s17A(3)(b)(i) of the POO, C
the same section as Charge 1 in this case. He refused to go through the
D D
statutory notification procedure despite a warning from the police. The
held that the statutory scheme under the POO did not satisfy the
J J
“prescribed by law” requirement (with regard to the concept of “ordre
K public”), the majority held that such reference to “ordre public” could be K
N N
225. In that authority the Court of Final Appeal examined the full
O range of discretionary powers that the Commissioner of Police and the O
Leung Kwok Hung v Secretary for Justice (No 2) (2020) 2 HKLRD 771.
T T
This appeal stemmed from a judicial review of The Prohibition on Face
U U
V V
A A
B B
Covering Regulation made under the Emergency Regulations Ordinance,
C
Cap 241 and related constitutional challenges. C
D D
227. The defence unanimously submitted that the Court of Final
E Appeal in Leung Kwok Hung 2005 did not focus on or decide that the E
sanctions imposed under s17A were proportionate and constitutional.
F F
Therefore, the systemic challenge here is not precluded by that decision.
G If that submission is correct then the validity of the sanction provision G
J J
228. There are similarities between this case and Leung Kwok
K Hung 2005. The 4th defendant was convicted of the same charge as charge K
P P
229. One other notable difference is that in 2005 Leung Kwok
Q Hung did not notify the Commissioner of Police of an intention to hold a Q
public procession whereas in this case there was notification but no Letter
R R
of No Objection. That difference, in my view, does not distinguish that
S authority. If anything, the existence of a police ban or objection makes S
U U
V V
A A
B B
Is Leung Kwok Hung & Ors v HKSAR (2005) Binding Precedent?
C C
230. After the Court of Appeal decision in Leung Kwok Hung
D D
2005, a Notice of Motion was filed for a certificate certifying that there
E was involved in the said decision, a point of law of great and general E
importance. It was granted and the point was namely “Whether the
F F
notification scheme under S13 to S15 of the Public Order Ordinance
G contravenes Article 21 of the ICCPR, Article 17 of the Hong Kong Bill G
question and that was “is the scheme which the Public Order Ordinance
L L
lays down for notification and control of public processions
M constitutional? The answer to that question is likely to affect also the M
scheme which the same Ordinance lays down for notification and control
N N
of public meetings”. Leave to appeal to the Court of Final Appeal was
O granted. O
P P
232. The prosecution has referred me to the judgements of the
Q lower courts to support their submission. The decision of the Chief Q
U U
V V
A A
B B
(a) the notification system meant a public procession must
C
first be approved by the Commissioner, and this C
unreasonably circumscribed the right to peaceful
D D
assembly;
E E
(b) the provisions regarding the exercise of the
F F
Commissioner’s power to object to a public procession
G were too ambiguous and lacked appropriate checks and G
balances; and
H H
233. The Chief Magistrate found the defendants guilty and held
L L
that the penalty provided by s17A(3) was not disproportionate to the
M offence. He found “Penalties imposed by legislation were maximum M
penalties, and the court was entitled to take into account various factors
N N
in determining an appropriate sentence.” (See p481B-C Chinese &
O p473C-D English) O
P P
234. He reiterated the primary principle in sentencing which is
Q that punishment must be commensurate to the criminality. The legislation Q
T
235. The majority of the Court of Appeal, reported in (2004) 3
T
HKLRD 729 also found that the notification system was constitutional
U U
V V
A A
B B
and dismissed the appeal. Ma CJHC as he then was, confirmed at para 9
C
on page 737 that the constitutional challenge made by the appellants was C
against ss. 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A of the POO.
D D
J J
237. The Court of Appeal by a majority held that the notification
K scheme was constitutional. The appeals were dismissed and the K
O O
238. Next, the Court of Final Appeal by a majority dismissed the
P appeal and upheld the convictions. The prosecution submitted that in P
finding the notification scheme constitutional, the highest court took into
Q Q
account the criminalisation and the penalty as well. It did not correct or
R qualify what Ma CJHC said and that is s17A is constitutional as well. R
S S
239. Para 63 of that judgement, under the heading “Police powers
T and criminal offences” summarised the police powers and criminal T
offences. The court covered and set out the various criminal sanctions of
U U
V V
A A
B B
s17 and s17A in full including the penalties, that is the maximum penalty
C
is 5 years’ imprisonment on conviction on indictment or a fine of $5000 C
and 3 years’ imprisonment on summary conviction for s17A(3)(b)(i). The
D D
sections imposing sanctions and penalties were clearly taken into account
F F
240. The prosecution submits the question of constitutionality of
G s17A(3) was very much part of the defence submissions to the Court of G
Final Appeal. The question of the severity of the penalty and even
H H
whether there should be any criminal sanction for failure to notify the
I police was specifically raised by leading Counsel for the 2nd and 3rd I
2005 from Counsel of those appellants, Mr Martin Lee SC, the 8th
L L
defendant in this trial. He made submissions on “what the new scheme
M should be”, see Tab 43/Prosecution’s supplemental authorities bundle M
(B).
N N
U U
V V
A A
B B
243. I agree with the prosecution that the decision to uphold that
C
scheme under the POO as constitutional included all aspects of the C
scheme, even s17A. There is no direct reference to s17A in the ratio
D D
decidendi but it can be read that the court took into account the
G 244. It was certainly a live matter during the appeal as seen from G
the penalty therefore, that penalty section has not been subject to any
J J
authoritative scrutiny.
K K
though on the facts of the case that conviction was due to the failure to
N N
give notification, the Court of Final Appeal examined the discretionary
O powers that the Commissioner and the police could exercise in restricting O
V V
A A
B B
more, and found all sections relating to the notification scheme
C
constitutional. If they did not, then they would have commented on it. C
D D
247. Therefore, no specific reference to s17A in the Court of
E Final Appeal decision in Leung Kwok Hung 2005 is neither here nor E
there. As an integral part of the notification scheme, that is the offence
F F
creating section, it has been included in the decision and is binding under
G the doctrine of stare decisis. G
H H
248. The Court of Appeal in Leung Kwok Hung (No 2) 2020 goes
I on to state in paragraph 208 when it finds that there are valid and serious I
and did not strike it down for being disproportionate, see para 214-5.
P P
That comes after his observation that s17A arms each scheme with a
Q “formidable set of teeth capable of biting down with a maximum force of Q
T T
U U
V V
A A
B B
250. The prosecution has referred me to a 1988 article by the Hon
C
Sir Anthony Mason entitled “The use and abuse of precedent” for the C
Australian Bar Review. In particular, the last paragraph of page 103 and I
D D
quote;
E E
“every decision has its ratio decidendi, even the decision for
F which no reasons are given. Then the case is only authority for F
what it actually decides, that is, for the proposition of law to be
derived from the order of the court and the material facts.”
G G
251. Clearly in Leung Kwok Hung 2005 the order of the court
H H
was to uphold the convictions and the material facts included the entire
I notification scheme; the sentence and sanction were part of the material I
J
facts as discussed in the body of the judgement.
J
K K
252. The doctrine of stare decisis is the doctrine of precedent and
L
means “to stand by things decided”. I am of the view that through this L
doctrine, the principle of law that is established by the Court of Final
M M
Appeal in Leung Kwok Hung 2005 is binding on lower courts.
N N
253. This court cannot now reconsider the constitutionality and
O O
proportionality of that section alone just because the defence again raise a
P systemic challenge to it and focus specifically on the statutory purpose of P
that section. I agree with the prosecution that this challenge is precluded
Q Q
by that Court of Final Appeal decision in 2005.
R R
254. The defence did rely on what Poon CJHC said in his
S S
judgement in the Matter of the Application of Mr David Perry, QC, to be
T approved, admitted and enrolled as a barrister of the High Court of the T
V V
A A
B B
(2021) HKCFI 113, the defence referred me to particularly paragraphs
C
11-13. C
D D
255. The submission was that Poon CJHC indicated Leung Kwok
E Hung 2005 was not binding because there the Court of Final Appeal dealt E
with a “much narrower challenge than the wholesale attacks now sought
F F
to be launched against the constitutionality of s17A as an offence
G creating provision, the scheme of objection and the appeal mechanism.” G
H H
256. However, the legal issues identified in that application (in
I paragraph 6) were not in fact raised in this trial. The only issue identified I
that was raised in this trial was whether criminalising the organisation or
J J
participation of a peaceful assembly or procession under s17A of the
K POO amounts to a disproportionate restriction on the freedom of peaceful K
assembly or processions. Even then, not by all and not with much vigour
L L
or substantive submission.
M M
257. The court was told the constitutional issues to be raised had
N N
not been fully addressed or canvassed by the Court of Final Appeal in
O 2005. However, the wholesale attack Poon CJHC was told was to be O
Q Q
258. Mr Jonathan Chang SC for the bar, opposing the application
R
to admit Mr David Perry QC, submitted that the constitutional issues R
identified had previously been addressed in 2005. He submitted that
S S
decision was binding if a constitutional challenge was launched on the
U U
V V
A A
B B
259. In my view, the defence cannot rely on this submission
C
because what the Court of First Instance was told was materially different C
to the challenge raised before this court and in any event, I do not agree
D D
what was said in the judgment indicated that the 2005 decision would not
E be binding. E
F F
260. The defence also unanimously submitted that this systemic
G challenge is in the context of an ultimately peaceful assembly. Much was G
261. However, a short answer would have been that the majority
L L
of that Court of Final Appeal upheld the convictions when that
M unauthorised procession was peaceful. If I were to have undertaken a M
just outbreaks of violence but also serious traffic disruption as arose here.
P P
T
here would be disproportionate because the unauthorised acts were
T
without violence.
U U
V V
A A
B B
J J
264. In Ziegler, the case concerned an obstruction of the highway
K by the defendant. In Yeung May Wan, the defendant held a sit in protest K
N N
265. In view of my finding that I am bound by precedent and
O there are no grounds for a constitutional systemic challenge here, then O
R R
266. There are no authorities that suggest an offender may rely on
S S
a defence of reasonable excuse when he has knowingly participated in a
T
banned public assembly because it was ultimately peaceful.
T
U U
V V
A A
B B
267. Equally, it cannot be right that to arrest and prosecute is
C
disproportionate in this case because no actual violence broke out. That C
would give the law no teeth and make a mockery of it. It cannot be right
D D
for an offender to argue that although his act was unauthorised,
268. This leads me to the defence submission that the purpose for
H H
imposing criminal sanctions against a peaceful assembly procession is to
I maintain, uphold, enforce or ensure the compliance with the notification I
system. This was in the context of what would be the legitimate aim for
J J
imposing sanctions against peaceful processions. It was suggested that
K the purpose behind Charges 1 and 2 is limited only to maintaining and K
N N
269. The submission here was that this very narrow interpretation
O of the legitimate aim behind those offences would mean that the O
restrictions are not rationally connected with the legitimate aim for the
P P
purposes of analysing proportionality. It would follow that the
Q restrictions are not proportionate to achieve the legitimate aim. It would Q
also follow that the imposition of criminal sanctions failed to strike a fair
R R
balance between the societal benefits and the protected rights of an
S individual. S
T T
U U
V V
A A
B B
270. It is not necessary for me to analyse the validity of s17A (3)
C
by going through the four step proportionality test from the Hysan C
Development authority because I am bound by the Leung Kwok Hung
D D
2005 decision but if I had, I would have found that that authority made it
E clear that the legitimate purpose or aim was identified as public order. It E
cannot be right that the purpose is only to ensure compliance with the
F F
notification system. That is one of the purposes but not the only purpose.
G G
271. The Court of Final Appeal in that authority made it clear that
H H
the legitimate aims of criminalising the participation in or the
I organisation of an unauthorised assembly are to maintain public order I
and public safety, and to protect the rights and freedom of others,
J J
irrespective of whether it was peaceful in the end.
K K
272. I would have found that the subject offences are rationally
L L
connected with those legitimate aims identified. If not, then the whole
M notification scheme would be pointless if criminal sanctions are not M
justified. These would have been the first 2 steps of the four step
N N
proportionality test if I had analysed the validity of section 17(A).
O O
R
criminality, the subject offences would satisfy the proportionality test R
under both the “no more than necessary” and “manifestly without
S S
reasonable foundation” thresholds.
T T
U U
V V
A A
B B
274. I would have rejected the submission above that the
C
imposition of criminal sanctions failed to strike a fair balance between C
th
the societal benefits and the protected rights of an individual, the 4 step.
D D
I would have weighed up the societal benefits of effectively
E implementing the notification scheme against the fact that the sanctions E
are not mandatory and sentences are more often than not financial
F F
penalties.
G G
275. I will add here that the prosecution did submit that if I did
H H
not accept their submission that the systemic challenge was precluded by
I the Court of Final Appeal decision in 2005, then an examination of the I
validity of s17A (3) through the four step proportionality test would
J J
conclude it was proportionate. I was taken through it in submissions to
K demonstrate that the constitutional challenge would still fail. I would K
to scrutiny in an appeal.
R R
S S
277. I would have reviewed and been entitled to take into account
T
the many legislative debates in the 1990s on the provisions of the POO in
T
the Legislative Council’s Official Record of Proceedings. Particularly in
U U
V V
A A
B B
a debate in December 2000 where sanctions were debated, the severity of
C
the sanctions were debated and even sanctions in similar provisions in C
overseas jurisdictions were debated.
D D
to decide after consideration of relevant factors but also after taking into
H H
account the rights of individuals as well as the interests of the society as
I is evident from various Official Records of Proceedings of the Hong I
P P
280. The “chilling effect” of harsh sanctions submission would
Q have had little traction if I had analysed the validity of s17(A). Exhibit Q
P57 is a table compiled from police records relating to the figures for
R R
public order events annually, between 2000 and 2020. It sets out the
S S
number of notified public meetings held with a Letter of No Objection as
T
well as the number of notified public processions held with a Letter of
T
No Objection. It shows how many meetings have been prohibited and
U U
V V
A A
B B
how many processions have been objected to by the Commissioner of
C
Police. Even in 2019, there were a total of 884 authorised public C
meetings and processions. Without evidence to the contrary, this
D D
submission would have failed.
E E
F F
CONCLUSION
G G
281. After careful consideration of the submissions, I am unable
H H
to consider the systemic challenge to the constitutionality of ss. 17A(3)
I
(a) and 17A(3)(b)(i) on the ground that this challenge is precluded by the I
Court of Final Appeal decision in Leung Kwok Hung 2005. That decision
J J
upheld the constitutionality of the scheme under the POO including
K s17A. That offence creating section must have been in the purview of the K
Court of Final Appeal therefore, I am bound it.
L L
N N
OPERATIONAL PROPORTIONALITY CHALLENGE
O O
P
283. All but the 4th defendant submits the decision to later arrest P
those defendants, the decision to prosecute and the subsequent conviction
Q Q
is in violation of and disproportionate to the constitutional guarantees and
U U
V V
A A
B B
284. It was submitted as relevant to this challenge the fact that
C
there was on the day no warning from the police nor any enforcement C
action to stop the procession. Also, there was no disruption to traffic or
D D
public transport which was due to the defendants themselves; it stemmed
being because, as the Court of Appeal observed “since June 2019, Hong
N N
Kong has experienced serious social unrests and public disorders marked
O by protests, escalating violence, vandalisms and arson across the O
territory. It is a dire situation that has not been seen in the last 50 years.”
P P
para 1.
Q Q
287. The Court of Appeal made it clear when either measures that
R R
interfered with freedom of assembly or enforcement action taken by
S authorities were to be subject to a proportionality requirement then, that S
V V
A A
B B
O O
288. The operational challenge is explained at para 182(2). What
P P
is to be operationally proportional is the actual implementation or
Q
enforcement if there is any, on the facts and specific circumstances of a Q
case. This must be read in conjunction with paragraph 181 and the Court
R R
of Appeal references to Kudrevicius v Lithuania (2016) 62 EHRR 34.
S S
T T
U U
V V
A A
B B
289. In para 181, it refers to a scenario when a demonstration has
C
not been authorised. It summarises some general observations from C
Kudrevicius;
D D
I I
290. In my view, the Court of Appeal is referring to enforcement
J action against a demonstration on the day, here with specific reference in J
the last line to crowd dispersal. Public authorities have to show a degree
K K
of tolerance in what action they decide to take at the time. Some level of
L disruption can be inevitable in any demonstration so just that fact alone L
M
does not justify an interference with the right to freedom of assembly
M
hence, a tolerant approach is required.
N N
O
291. Indisputably, on 18 August 2019 the police took no O
enforcement action. I am sure for the reasons given by PW4 which meant
P P
there was no restriction upon the exercise by the defendants of their
T T
U U
V V
A A
B B
292. As an illustration, if the police had taken any enforcement
C
action on 18 August 2019 such as warnings followed by more drastic C
enforcement action such as making arrests, dispersing the crowds,
D D
containing the crowds, using pepper spray, teargas or diverting or
H H
293. Paragraph 193 considers this principle of tolerance and
I proportionality on the operational level as discussed in the Kudrevicius I
case and refers to paragraphs 182-184 quoted above. The Court takes as
J J
an example a s17A(2)(a) offence where a public meeting or procession
K which takes place in contravention of s 7 or s 13 would be an K
Q 294. This again can only mean with a plain reading that the Court Q
V V
A A
B B
paragraph 194. Again, it does not follow that there will be no action
C
taken by the authorities later if there was unlawful activity. C
D D
295. In the Kudrevicius case, the demonstration was initially
E authorised but the farmers protesting about subsidies for the agricultural E
sector moved their demonstration to a major highway which was not
F F
within the specified limits of the permit issued. They intended to cause
G major disruption. They did cause significant traffic disruption for 2 days. G
L L
296. The ECHR found that despite the serious traffic disruption
M caused, the public authorities displayed a high degree of tolerance. The M
police did not disperse the farmers and only ordered them to remove the
N N
roadblocks and gave them warnings. Clearly they had attempted to
O balance the interests of the demonstrators with those of the highway users O
S S
297. Those farmers in Lithuania had authorisation to protest but
T
in this case there was notification followed by a ban. In this case I can
T
take into account there was also traffic disruption, public transport
U U
V V
A A
B B
affected with significant road closures caused by the unauthorised
C
procession, certainly in Wanchai, Admiralty and Central area and even C
other areas of the territory. This must be relevant in a city as crowded as
D D
Hong Kong. These are relevant distinguishing features.
E E
298. The prosecution in their final submissions MFI-4 submit
F F
none of the matters relied on by the defendants can constitute arguable
G ground for an operational proportionality challenge. Specifically, the G
J J
299. In effect, the defence are submitting that the decision to later
K arrest defendants and the decision to prosecute as well as a conviction K
should be subject to a proportionality analysis, the four step test as set out
L L
in the Hysan Development case. The prosecution reply to this is that if the
M systemic challenge has failed and the criminalisation and sanctions of M
300. I do not agree with Ms Po’s submission for the 6 th and 8th
P P
defendants that the last few words of paragraph 183 I have quoted above,
Q particularly the words “in a particular case if a charge is brought against a Q
person is charged and if there is a challenge, the court can assess the
T T
U U
V V
A A
B B
proportionality by reference to the actual implementation or enforcement
C
taken that day on the facts and specific circumstances of that case. C
D D
301. In the submissions from counsel to support their operational
J J
The Arrest and Decision to Prosecute
K K
302. I do not agree with the defence that these actions should be
L L
subject to a proportionality analysis. The systemic challenge has failed
M and the relevant sections constitutional. The arrest was therefore lawful. M
P P
303. Only if there have been restrictions limiting some
Q constitutional rights on an operational level would the court determine Q
T
304. With respect, I reject the submission that any subsequent
T
arrest is a restriction on a fundamental right. It is suggested the whole
U U
V V
A A
B B
essence of an operational challenge means when a man is charged and
C
brought to court, the court looks at all the facts and applies the four step C
test. I do not agree that that is what the Court of Appeal meant or decided
D D
in Leung Kwok Hung (No 2) 2020.
E E
305. In Hong Kong the decision to prosecute is governed by
F F
Article 63 of the Basic Law. The Department of Justice shall control
G criminal prosecutions, free from any interference. There are very few G
J J
306. I refer to the decision of Hartmann J (as he then was) in RV
K v Director of Immigration (2008) 4 HKLRD 529 who considered in- K
P P
307. Hartmann J only mentioned 3 particular situations where the
Q Secretary would be regarded as having acted outside the constitutional Q
V V
A A
B B
unconstitutional. Otherwise, the court should not encroach on the right
C
set out in Article 63. C
D D
308. I have been referred to James v DPP (2016) 1 WLR 2118 by
E the prosecution. There it was held by the Appeal Court that it is no part of E
the function of a criminal trial court to rule upon a contention by
F F
reference to Articles 10 and 11 of the European Convention on Human
G Rights that the decision to prosecute was disproportionate, unless it was G
309. The facts of that case are similar to the facts of this case.
L L
The defence submits the decision to prosecute in relation to Articles
M guaranteeing similar freedoms here should be subject to proportionality M
P P
310. Therefore, unless the defendants are suggesting that the
Q decision to prosecute was an abuse of the court’s process then it is not the Q
T T
CONCLUSION
U U
V V
A A
B B
C
311. After a careful consideration of the submissions, I find no C
matters raised by any of the defendants that can constitute arguable
D D
grounds for an operational proportionality challenge. Accordingly, the
G IN SUMMARY G
H H
312. I have found after trial the prosecution able to prove beyond
I reasonable doubt that all of the defendants together organised what I
L L
313. Accordingly, and despite the clear records of all bar the 4 th
M defendant, I find the 1st, 2nd, 3rd, 4th, 5th, 6th and 8th defendants guilty of M
systemic challenge fails for the sole reason that this court is bound by the
P P
decision made by the Court of Final Appeal in Leung Kwok Hung 2005.
Q The constitutionality of s17A was decided in that authority and a binding Q
precedent.
R R
S 315. The operational challenge fails for the sole reason that there S
were no matters relied upon by the defendants that could constitute good
T T
U U
V V
A A
B B
and arguable grounds for an operational proportionality analysis as
C
envisaged by the Court of Appeal in Leung Kwok Hung (No 2) 2020. C
D D
316. The decision to prosecute remains the sole authority of the
G G
H H
I I
( A J Woodcock )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V