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DCCC 536/2020

C
[2021] HKDC 398 C

D D
IN THE DISTRICT COURT OF THE

E HONG KONG SPECIAL ADMINISTRATIVE REGION E


CRIMINAL CASE NO 536 OF 2020
F F

G ----------------------------- G

HKSAR
H H
v
I LAI CHEE YING (D1) I

LEE CHEUK YAN (D2)


J J
NG NGOI YEE MARGARET (D3)
K LEUNG KWOK HUNG (D4) K

HO SAU LAN CYD (D5)


L L
HO CHUN YAN (D6)
M LEE CHU MING MARTIN (D8) M

-----------------------------
N N

O Before: Her Honour Judge A J Woodcock in Court O

Date: 1 April 2021


P P
Present: Mr Benjamin Yu, S C leading Ms Priscilia T Y Lam,
Q Counsel on Fiat, Mr William Liu, Senior Assistant Law Q

Officer (Civil Law), Ms Karen Ng, Senior Public Prosecutor


R R
(Ag) and Mr Edward Lau, Public Prosecutor, for
S HKSAR/Director of Public Prosecutions S

T T

U U

V V
A A

B B
Ms Audrey Eu, S C and Mr Edwin W B Choy, S C leading

C
Mr Jeffrey C K Tam and Mr Ernie Tung instructed by C
st
Robertsons for the 1 defendant
D D
Mr Philip J Dykes, S C leading Mr Chris C L Ng, Mr

E Christopher P H Kan and Mr Timothy R Wong instructed by E


nd th
JCC Cheung & Co for the 2 & 5 defendants
F F
Mr Ambrose Ho, S C leading Mr Isaac C K Chan instructed
G by Ho Tse Wai & Partners for the 3rd defendant G

Mr Hectar H Pun, S C leading Mr Anson Wong Yu Yat


H H
instructed by Kenneth Lam Solicitors, assigned by the
I Director of Legal Aid, for the 4th defendant I

Mr Lawrence Lok, S C leading Ms Po Wing Kay, Mr


J J
Geoffrey Yeung and Mr Simon Kwok instructed by Ho Tse
K Wai & Partners for the 6th & 8th defendants K

Offence: [1] Organizing an unauthorized assembly (組織一個未經


L L
批准集結)
M [2] Knowingly taking part in an unauthorized assembly(明 M

知而參與未經批准集結)
N N

O O
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P
REASONS FOR VERDICT P
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Q Q

R 1. The defendants are all jointly charged with organising an R


unauthorised assembly, contrary to section 17A(3)(b)(i) of the Public
S S
Order Ordinance, Charge 1 and knowingly taking part in an unauthorised
T assembly, contrary to section 17A(3)(a) of the same Ordinance, Charge 2. T
The 7th and 9th defendant pleaded guilty before trial.
U U

V V
A A

B B

C
2. The particulars of Charge 1 are that all defendants on 18 C
August 2019 organised a public procession which took place in
D D
contravention of section 13 of the Public Order Ordinance, which was an

E unauthorised assembly by virtue of section 17A(2)(a) of the same E


Ordinance.
F F

G 3. The particulars of Charge 2 are that all the defendants on 18 G

August 2019 without lawful authority or reasonable excuse, knowingly


H H
took part in a public procession which took place in contravention of
I section 13 of the Public Order Ordinance, which was an unauthorised I

assembly by virtue of section 17A(2)(a) of the same Ordinance.


J J

K BACKGROUND K

L L
4. On 12 August 2019 the Civil Human Rights Front,
M hereinafter known as “CHRF” submitted a notification of intention to M

hold a public meeting and procession, “the notification”, informing the


N N
police of the intention to hold on 18 August 2019;
O O

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


P P
6pm;
Q Q

(2) a public procession starting from Victoria Park and


R R
ending at Chater Road Central between 3pm and 7pm,
S and S

T T

U U

V V
A A

B B
(3) a 2nd public assembly at Chater Road itself between 5pm

C
and 11:59pm (Exh P2). C

D D
5. There was a liaison meeting between CHRF and the police

E on 14 August 2019. (transcript/translation P3 & P3A) After it and on the E


same day the CHRF submitted an amended notification to the police
F F
specifying the proposed route of the public procession from Victoria Park
G to Chater Road. (Exh P4) G

H H
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

holding of the public assembly in Victoria Park on 18 August 2019.


J J
However, having regard to the interests of public order and public safety
K and for the protection of the rights and freedoms of others, the police K

objected to both the public procession from the Park to Chater Road and
L L
the 2nd public assembly to be held there upon arrival. (Exh P5 & 5A)
M M

7. The CHRF appealed against the police decision and after an


N N
appeal hearing convened by the Appeal Board on 16 August 2019, the
O Board upheld the police decision and dismissed the appeal lodged by O

CHRF.
P P

Q 8. The CHRF held several press conference and interviews Q

after that. On 17 August 2019 they said the police had not arranged for
R R
the dispersal of crowds from Victoria Park therefore, pro-democracy
S legislators and influential people would be assisting the crowds to S

disperse safely. They urged as many people to come to fill up Victoria


T T
Park the following day.
U U

V V
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
D D
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
F F
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.
H H

I THE ISSUES I

J J
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?
L L
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

procession? The defendants submitted they can avail themselves of the


N N
defence of necessity.
O O

11. What is not in issue is the merits of the decision of the


P P
Commissioner of Police to ban the public procession and 2nd public
Q assembly. What is not in issue is the identity of all the defendants either Q

carrying the banner or walking in front of the banner shouting slogans


R R
through a megaphone. What is not in issue is that the defendants led
S people from Victoria Park to Central; essentially along the same route S

and at the same time as proposed for the banned public procession.
T T

U U

V V
A A

B B
12. There are constitutional challenges from all defendants on a

C
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
D D
reasonable doubt.

E E
13. Simply put, the defence submits these offences should not
F F
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
H H
sanctions is to ensure the compliance with the notification system and
I therefore the restrictions arising from section 17A (3) are not rationally I

connected with or are disproportionate to the legitimate aim if it were to


J J
be subject to a 4-step proportionality test.
K K

14. On an operational level, the defendants, taking into account


L L
the police action or inaction on 18 August 2019, should not have been
M arrested 8 months later nor prosecuted nor subject to a conviction for M

what turned out to be a peaceful assembly.


N N

O THE PROSECUTION’S CASE O

P P
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

organising and also taking part in an unauthorized public procession that


R R
started from Victoria Park and ended at Chater Road that day. The
S S
defendants formed the head of a public procession by carrying a long

T
banner leading thousands of participants who were told to follow them to
T
leave Victoria Park at about 3:09pm. The proposed banned public
U U

V V
A A

B B
procession by CHRF was originally earmarked to start at 3pm. The

C
banner group arrived at Chater Road at about 4:38pm. C

D D
16. The prosecution say the defendants had knowledge that the

E public procession had been objected to by the Commissioner of Police E


and the CHRF’s appeal against that decision had been dismissed. They
F F
nevertheless assisted CHRF by organising one in defiance. They did it in
G the name of a dispersal plan. G

H H
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

MTR stations safely and in an orderly manner. In short, the defendants


J J
knew that the public procession they organised and took part in was an
K unauthorised public procession. K

L L
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

plunging Hong Kong into chaos, implement the 5 demands” printed on


N N
the banner with the caricature of a female with a wounded bloody eye
O promoted the common purpose required to constitute a public procession. O

Those words coincided with the purpose of the public assembly that was
P P
allowed at Victoria Park; to protest against the abuse of their powers by
Q the police. Q

R R
19. There is much video footage of the public assembly in
S S
Victoria Park and the procession leaving from Gate 17 in Victoria Park to

T
Chater Road. There is much video footage of the banner party comprising
T
of all the defendants walking at the head of that procession to Chater
U U

V V
A A

B B
Road. This includes what they did, who said what, which route they took

C
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.
D D
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
F F
and some press conferences. None of this evidence was challenged.
G G

20. In the admitted facts, P1, all parties agreed that between 10
H H
June and 11 August 2019, violence erupted during some protest events
I including confrontation between civilians and police officers. The I

chronology of events from the submission of the notification, P2 to the


J J
banner party leaving Victoria Park and arriving in Central was in the
K main agreed. Those included press conferences, interviews and various K

video footage of 18 August.


L L

M 21. In the LONO there are the details of the event allowed and M

all the terms and conditions imposed by the police. Of particular


N N
significance to this trial are the conditions that CHRF had 200 marshalls
O to facilitate the event and that the organisers adhered to any instructions O

given to them by the police on the day. In a second letter to CHRF after
P P
the appeal hearing, P23 & P23A, the police stressed these conditions.
Q Q

THE DEFENCE CASE


R R

S 22. The CHRF were angry; publicly and vocally disappointed S

their public procession to Central and the 2 nd public meeting was banned.
T T
They stressed to the police that the public procession was necessary to
U U

V V
A A

B B
ensure there was no danger of overcrowding in Victoria Park. They

C
estimated 300,000 people would attend the public meeting, more than C
Victoria Park can accommodate.
D D

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
F F
management control and the safety of participants. It was publicly
G declared during the press conference of 17 August that CHRF had invited G

influential people and ex-democratic legislators to assist CHRF to lead


H H
participants to various MTR stations to disperse the crowds safely and in
I an orderly manner. The participants were urged to participate in a I

peaceful and non-violent manner on the day.


J J

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
L L
intentionally organised or knowingly participated in an unauthorised
M assembly. CHRF had to implement their own dispersal plan because the M

police deliberately did not implement any crowd management control


N N
plan. It was done out of reasonable excuse and necessity. The police
O tacitly consented to the plan that CHRF would arrange the dispersal of the O

crowds; therefore, the defendants had lawful authority to lead the crowds
P P
out to Central. The police left that to CHRF.
Q Q

THE PROSEUCTION’S EVIDENCE


R R

S Prosecution Witnesses S

T T

U U

V V
A A

B B
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
D D
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
F F
unbelievable.
G G

26. An enormous number of issues were covered by witnesses


H H
during the course of this trial.  It is simply not practical in the course of
I these reasons for verdict for me to attempt to cover every aspect of events I

covered by every witness; to identify individually and discuss every


J J
argument or submission made by counsel for the prosecution and the
K defence. The defendants in the main adopted each other’s final K

submissions. That I do not mention a particular piece of evidence,


L L
transcript, video recording or submission does not mean that I have not
M considered it or factored it into my decision making.  M

N N
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
P P
meeting and the decision to ban the proposed procession and 2nd meeting.
Q No organiser of the public meeting is amongst the defendants. Q

R R
28. PW1, Superintendent Simon Cheung Wing Kan was the
S Commander of North Point Division at the time. Victoria Park was within S

the boundaries of North Point and their responsibility. When he received


T T
the notification from CHRF he delegated the responsibility of compiling
U U

V V
A A

B B
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
D D
public event. PW2 was also appointed as an assessor to complete a public

E event risk assessment form, as well as risk control measures. These 3 E


documents were reviewed by PW1.
F F

G 29. All 3 documents were annexed to an operational order G

number 14/2019 issued by PW1 on 16 August 2019, P49. By the time he


H H
issued this he knew the decision of the Commissioner of police and the
I result of the appeal board. The purpose of P49, an internal document, was I

to notify all participating colleagues of the details in this action.


J J

K 30. Paragraph 11 of P49 deals with Police Community Relations K

Officers who would on the day liaise with and contact the organisers,
L L
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

the day in Victoria Park.


N N

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
P P
of the day (para 22 of P49).
Q Q

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

deliberately neglected or ignored. He disagreed.


T T

U U

V V
A A

B B
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
D D
accordance with their directions. This part of his evidence was quoted in

E MFI-5, the 1st defendant’s final submissions at page 30. E

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

event management office of North Point Division. He identified 6


H H
hazards, gave them risk ratings and set out risk control measures for
I review. I

J J
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

MTR were located. In his experience in organising similar events in


L L
Victoria Park, he would request organisers first fill up all the 6 football
M pitches with participants and if more space was then required, the M

participants were to be directed by the organisers to the Central lawn


N N
which would have been cleared in advance. If there was still not enough
O room in Victoria Park, then the field commander of the day would O

consider the necessity of implementing the tactics of the tidal flow


P P
method to deal with the ingress and egress of participants.
Q Q

36. To implement the tactics of the tidal flow method used by


R R
the police, the Tin Hau Public Transport Interchange and Hing Fat Road
S Car Park at the east side of Victoria Park would be closed in advance to S

create a queueing zone for people to safely enter Victoria Park from the
T T
East. In his experience, the North side, South side and higher hill part of
U U

V V
A A

B B
the park would be used for dispersal. If necessary, the police would ask

C
the traffic unit to facilitate dispersal. C

D D
37. In cross examination he gave evidence that he did not know

E of the details of the CHRF press conference held on 17 August. He E


denied that the police knew organisers would use their own water flow
F F
measures to disperse the crowds themselves. He himself had not heard
G that the organisers had asked ex-legislators to lead the crowd away from G

the park to various MTR stations. It was suggested to him that the police
H H
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
J J
station. He agreed that the park was already becoming crowded between
K 1 and 2pm. K

L L
38. PW3 was Chief Inspector Sin Pui Man who was then the
M Senior Inspector of Operation Wing HKQ. She attended the liaison M

meeting between the police and the organisers on 14 August chaired by


N N
Chief Inspector Ku, PW8. She did not recall Figo Chan of CHRF
O specifically refer to water flow measures even though he mentioned it a O

few times. She knew that in the past CHRF had asked crowds at public
P P
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.
R R
PW3 was instructed to prepare the LONO, P5.
S S

39. She was mainly asked by PW4 if CHRF had any measures
T T
in place to prevent violence erupting or stopping trouble makers in the
U U

V V
A A

B B
crowds. PW4 confirmed in her evidence that that was her main concern

C
because of recent violent outbreaks after public events. C

D D
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
F F
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

H H
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

in cross-examination she had no recollection of the CHRF press


J J
conferences and had not heard of the plan to ask legislators to lead the
K crowd out of Victoria Park to disperse. K

L L
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
N N
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

P P
43. PW4, Superintendent Chow Wing Yee was in August 2019
Q Q
the Acting Senior Superintendent OPS HKI region. It was her decision to

R
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.
U U

V V
A A

B B

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.
D D
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

meeting to safeguard police buildings.


H H

I 45. It was her decision to not deploy police officers in the I

vicinity of Victoria Park and subsequently along the route of the


J J
unauthorised public procession led by the defendants at around 3pm. She
K knew there were 3 Police Community Relations Officers, PCRO officers, K

inside Victoria Park liaising with the organisers, PW6 and 2 others
L L
outside the park, PW7.
M M

46. She gave a full reason as to why she had decided not to
N N
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

freedoms of others. The atmosphere in society was bad, especially


P P
between the police and certain sections of the public because of the many
Q violent incidents that took place between June and August 2019. Q

R R
47. She decided that if the police gave warnings to the
S organisers and participants for this unauthorised public procession or took S

enforcement actions there would be a real chance of radical protesters


T T
within the crowds taking advantage of the police presence to behave
U U

V V
A A

B B
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
D D
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
P P
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
R R
police were deliberately deployed out of sight.

S S
50. In cross examination she said one of the reasons she refused
T T
the public procession to and the public meeting in Central was that the
U U

V V
A A

B B
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
D D
broken out in Hong Kong in recent months.

E E
51. She was cross-examined at length about the manpower
F F
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
H H
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
J J
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.
L L

M 52. PW4 explained that the police always required the help of M

marshals to facilitate the conduct of a public meeting. Crowds would


N N
often respond more positively to marshals than the police. She reiterated
O that under normal circumstances the police are there to try their best to O

facilitate but as with all decisions made by the police, it will depend on
P P
risk assessment of the day in question.
Q Q

53. Normally police would assist in crowd management but on


R R
that day it was also up to the Command of North Point Division to
S S
manage it. She herself saw no problem that day which required

T
rectification such as more manpower for crowd control management; no
T

U U

V V
A A

B B
report was made by the organisers for assistance nor was any report made

C
to the police. C

D D
54. She did not agree in cross examination that the hazard of

E overcrowding in Victoria Park had materialised by 2pm. She said there E


were a lot of people there and that Chief Inspector Raymond Chan had
F F
told her that the sentiment of the crowd was running high and emotions
G against the police were very negative. She said Victoria Park was not full G

by the time the defendants had organised an unauthorised public


H H
assembly and left the park.
I I

55. In cross examination she said she had not heard CHRF
J J
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
L L
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

decision not to take any enforcement action aided by an element of luck.


N N

O 56. It was put to her that the defendants leading people out of O

Victoria Park were part of the measures implemented by CHRF to help


P P
disperse crowds. The police trusted CHRF to take up the task of dispersal.
Q She disagreed because she knew that PW6, the PCRO liaising with the Q

officers gave CHRF specific instructions about dispersal of the crowds


R R
which were deliberately ignored. She did not agree the dispersal was
S orderly because of what CHRF called water flow measures implemented. S

She said the lack of violence was not due to this but because their
T T

U U

V V
A A

B B
decision not to deploy visible police officers at all was the correct

C
decision. C

D D
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

platoons to Victoria Park on 18 August. All were in uniform. Each


J J
platoon consisted of about 30 officers. 2 platoons were stationed at the
K East entrance of Victoria Park near Tin Hau MTR whereas the 3 rd platoon K

was stationed at the West entrance closest to Causeway Bay MTR. It was
L L
in these 2 directions that participants normally entered Victoria Park for
M public events. M

N N
59. To facilitate those entering from the East, the police closed
O off and reserved the Hing Fat Carpark and the Public Transport O

Interchange. These would be used for queueing zones if required. When


P P
they arrived at around 11am the officers of the platoons were on duty to
Q assist people to enter the park from both the East and West. Q

R R
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
T T
crowds and exercise restraint. At about 1pm when even more people
U U

V V
A A

B B
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

D D
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
H H
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

work and return to police stations. He informed HICOM of his decision


J J
and it was acknowledged.
K K

62. He agrees that paragraph 20 of the Operational Order P49


L L
had made provisions for the 3 platoons to be redeployed at the
M commencement of the meeting. However, he said he had made a decision M

to leave before he was given instructions to act on that deployment.


N N

O 63. It was suggested to him in cross examination that his O

recollection of the severity of the abuse was mistaken because he must


P P
have been abused so much more later in the year. It was put to him that
Q he did not leave with the 3 platoons because of incessant abuse and Q

insults. He disagreed and said he had a deep impression of it because he


R R
was personally abused that day by the crowd. He had never been in that
S position nor had ever had to retreat for this reason. S

T T

U U

V V
A A

B B
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.
D D

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
H H
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
L L
of abuse and insults.
M M

67. PW6 was Senior Inspector Cheung Ka Man, and on 18


N N
August 2019 the Assistant Police Community Relations Officer, APCRO
O of Eastern District. She had attended the liaison meeting with the O

organisers on 14 August. Her superior was PW7, Chief Inspector Wu


P P
Man Yee. She attended the briefing in the morning at North Point station
Q and was instructed to do the direct liaison work inside Victoria Park with Q

the organisers that day. She had 2 sergeants with her, mainly for her own
R R
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
T T
organisers.
U U

V V
A A

B B

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,
D D
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

H H
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
J J
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.
L L

M 70. It is not challenged and it is captured on video footage that M

just after 3pm all the defendants except D3 left Victoria Park through
N N
Gate 17 carrying a long white banner and headed westward towards
O Causeway Bay. D3 joined the banner party minutes later on Causeway O

Road and also helped carry the banner.


P P

Q 71. That afternoon, on 3 separate occasions PW6 gave Figo Q

Chan what she called “advice” but in reality, it was instructions or


R R
directions to CHRF. To describe, as suggested, what she told him as the
S S
liaison officer to tell the crowd was only advice that can be ignored is

T
senseless. It was suggested to her that her advice was not mandatory.
T
However, it is clear the content of her advice can leave no one in doubt
U U

V V
A A

B B
she meant it as a direction. She said she used that description as that is the

C
practice of the police. C

D D
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

leaving, to leave by heading to Tin Hau and Causeway Bay MTR


H H
stations. Her evidence was that these instructions were well known to
I CHRF from many previous public meetings held in Victoria Park. I

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
L L
Stations she specified to leave the park.
M M

74. At about 3pm she saw D1 and D2 with some marshalls leave
N N
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
P P
attention because by then the speeches were mainly about the abuse of
Q powers by the police. Q

R R
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
T T
leave from Wanchai, then they should leave from Admiralty. If they
U U

V V
A A

B B
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
D D
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
H H
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
J J
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

L L
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
N N
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
P P
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
R R
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
T T
see on football pitches Nos. 4 and 5 near her were queueing up to leave
U U

V V
A A

B B
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

D D
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

There were no crowd management issues such as overcrowding that were


L L
brought to her attention before crowds left from Gate 17. She knew that
M the lawn was not yet full before that time. M

N N
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

police refused to close Causeway Road. They refused to tell the


P P
organisers their dispersal plan. She agreed that that is what the organisers
Q said onstage but she did not correct Figo Chan as he made similar Q

disparaging statements all day long. In fact, after 3:40pm she could not
R R
get him down off the stage to talk to her. He just ignored her.
S S

82. PW6 did consider giving Figo Chan a warning as he was


T T
failing to follow police instructions but since there was a question of her
U U

V V
A A

B B
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.
D D
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

G 83. She also disagreed in cross examination that it was G

potentially dangerous to tell the crowds to leave by those 2 MTR stations.


H H
The stations were operating, not closed and the lawn and Park were not
I yet full at that stage. I

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.
L L
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

meeting at the park. A reading of the transcript does confirm that


N N
recollection.
O O

85. She did not recall the term “water flow meeting” being used
P P
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

organisers instructions to use the water flow method to leave Victoria


R R
Park nor was she aware that they had earlier told the press that the police
S had advised them to use this method to leave. She said, in any event, the S

police don’t have or use a water flow manner method in their practices or
T T
operations. They implement tidal flow measures if necessary.
U U

V V
A A

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
D D
the organisers for the day. PW7 herself was outside Victoria Park to

E oversee the communication that day. E

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

L L
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.
N N
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
P P
Victoria Park would still proceed.
Q Q

89. It was suggested to her that she could have warned the
R R
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
T T
post to decide if any action would be taken having assessed the situation.
U U

V V
A A

B B

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

G 91. He does recall the person in charge, Figo Chan informing G

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

L L
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

reflected that the organisers objected to only a public meeting; several


N N
made long objections. He agrees that he did tell the organisers that he
O would reflect their views to his senior. O

P P
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
R R
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

measures could include implementing tidal wave measures. That is those


P P
moving in one direction would be divided into different batches to
Q proceed as a way of controlling the crowd. The organiser would normally Q

make announcements to the crowd to that effect and as directed.


R R

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

transport department documents annexed to his statement was what he


L L
relied on to make his statement. He set out what roads were temporarily
M closed and when as well as what public transport routes were affected on M

18 August 2019.
N N

O 100. The prosecution also relied on various news footage of O

police interviews, of broadcasted police statements, of CHRF press


P P
conferences and interviews from 16 August to 18 August 2019 to prove
Q the knowledge of all defendants and to prove a plan to flout the law and Q

ban.
R R

S Police Press Conference and Announcements S

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

at 4pm on 16 August; video P7(1), transcript and translation P8 & P8A.


L L
In it, he referred to the CHRF public meeting of 18 August and why the
M public procession was banned by the police. He referred to how many M

public activities rapidly became violent events recently so they objected


N N
to some rallies planned on Sunday (18 August) after risk assessment.
O Statistics were given with details of how on 18 dates during or after O

demonstrations there was wide scale violence, even those organised by


P P
CHRF.
Q Q

104. The ban of the public procession to Chater Road was


R R
referred to several times before the question and answer session and
S during it. It was specifically said several times that if the Appeal Board S

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

E roads may be closed if necessary. E

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

crowd management by adopting tidal flow arrangements when crowded


H H
conditions arose. Questions were answered about crowd management
I measures for that public meeting. Questions were answered about I

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

participating in an unauthorised assembly. It would all depend on the


L L
circumstances and the police would not be drawn into answering
M hypothetical questions. M

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

2019; 17 different media outlets circulated that conference.


P P

Q 108. After the Appeal Board determination SP Liauw Ka-kei Q

addressed the press at 8:15pm on 16 August; Exh P25(1) broadcast from


R R
TMHK, transcript and translation P26 & P26A. He appealed to the
S organisers to respect the decision made by the appeal board. The decision S

to ban the public procession was based on public safety and public order
T T
considerations.
U U

V V
A A

B B

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


C C

D 109. Immediately after the Appeal Board decision to dismiss the D

organisers appeal, CHRF held a press conference at the doorstep of the


E E
board; transcript and translation P27 & P27A. The person in charge from
F CHRF of the public meeting, Figo Chan spoke first and expressed their F

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

O not allowing a public procession in view of the anticipated turnout. O

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

Liauw Ka-kei on 16 August 2019;10 different media outlets circulated


R R
that interview and statement.
S S

CHRF Press Conference - 17 August 2019


T T

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

disperse. They saw it as a deliberate plan by the police or others to cause


H H
difficulties to their public meeting. They appealed to everyone to jam
I pack Victoria Park and to be peaceful, rational and nonviolent so as not to I

fall into this trap.


J J

K 115. CHRF would arrange for dispersal in an orderly manner by K

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

be responsible for leading out participants from Victoria Park in an


N N
orderly manner to get to MTR stations to leave.
O O

116. The 2nd defendant appealed for participants to enter Victoria


P P
Park to stay for a short while and then leave by Causeway Road to
Q Admiralty and to Central. He said the police had created a problem for Q

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,

E “be water”. He expressed hope that pro-democracy legislators and E


influential people in Hong Kong society will come out and walk together
F F
with the people. He appealed to people to come out and walk with him.
G He said the Hong Kong government were wrong to believe they could G

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

118. The 9th defendant said that some pan-democrat leaders or


J J
legislators will “try to lead them (the participants) out of Victoria Park
K and go to the designated area, especially MTR stations to leave our K

assembly.”
L L

M 119. Annex 1(C) of the Prosecution’s Amended Opening sets out M

the wide circulation of this CHRF press interview on 17 August 2019; 8


N N
different media outlets circulated it.
O O

CHRF Press Conference - 18 August 2019


P P

Q 120. On the day, CHRF held a press conference in Victoria Park Q

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

Videos of the Procession from Victoria Park


H H

I 122. Exhibit P46 is a continuous news broadcast from NOW TV I

from 1:40pm to just past midnight on 18 August. It covers Victoria Park


J J
and the speeches made by the organisers on the stage to the banner
K procession to Chater Road and more. Parts of the day’s proceedings; the K

commentary and speeches from the organisers from 1:41pm to 3:58pm


L L
have been transcribed and exhibited at P46A & P46B.
M M

123. P40 is a continuous news broadcast from RTHK News from


N N
2:52pm to 4:52pm on 18 August. It too covers Victoria Park, organisers
O speeches and the banner procession to Chater Road. In MFI-3 in section 5 O

entitled “public procession on 18 August 2019”, it lists all the video


P P
footage exhibits covering the public meeting and the procession from
Q Victoria Park to Chater Road. Q

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

defendants with marshals carrying a long rolled up banner go towards


L L
Gate 17. After this announcement and instruction was given she then saw
M people on football pitches Nos. 4 and 5 lining up to leave by Gate 17. P47 M

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

left, there was a heavy downpour of rain.


T T

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

E respond appropriately, for example, if he shouted “5 demands”, the E


rd th th th
response would be “not one less”. At times, the 3 , 4 , 5 and 9
F F
defendants can be seen and heard responding.
G G

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

well over the width of a carriageway. Screenshots from video footage at


J J
P33C, P35C, P36C, P37C, P39C, P40C, 42C and 44C identified all the
K defendants and show close-ups of them carrying the banner. It shows how K

big the banner party was with a black cordon around them.
L L

M 130. Thousands of people can be seen following the banner party M

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

131. There is no dispute by the defence and it is clear from the


R R
video footage that the banner party lead participants along Causeway
S Road, Yee Wo Street, Hennessy Road, Queensway, Des Voeux Road S

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

on Ice House Street were many foreign domestic helpers sitting on


J J
cardboard trying to stay dry. When the banner party arrived the
K procession had to stop for some defendants and others to ask the domestic K

helpers to leave the carriageway and help them move all their cardboard.
L L

M 134. The prosecution rely on what was said upon arrival in M

Central by some defendants standing with all the other defendants


N N
together to prove the intention behind this procession was in fact to flout
O the law and thwart the ban. An intention that included all of them, to O

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

on 18 April 2020. PW4, SP Chow explained many times why no


N N
enforcement action was taken on the day; the main reason was because in
O light of recent violent events, the police did not want to provoke the O

emotions of the crowds in case it led to violence and serious disorder


P P
endangering public safety and public order.
Q Q

Disruption as a Result of the Procession


R R

S 138. The prosecution submit the procession led by the defendants S

caused serious disruption to traffic and public transport way past


T T
Causeway Bay and Wanchai. The procession and the participants covered
U U

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

Hennessy Road at about 4:16pm. It is not disputed there was graffiti


L L
painted or sprayed onto water barriers surrounding the Central
M Government Offices, seen on NOW TV footage P46 at about 8:30pm. M

Chanting can be heard.


N N

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

E situation was very volatile; he was cornered and abused. He is then E


filmed being followed, abused, jeered at and had laser lights shone in his
F F
face. At about 11pm a man in a white shirt is targeted and surrounded,
G obviously assaulted because blood is seen pouring from his head. G

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

explained in detail that a procession was required for dispersal in view of


R R
the large crowd anticipated. People had to disperse in a water flow
S manner, that is when more than capacity allows a flow into Victoria Park, S

there must be a flow out to avoid overcrowding and danger.


T T

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

G 146. Despite this knowledge, the police must have deliberately G

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 highlighted the lack of action to counter such a likelihood as


N N
evidence the police tolerated or consented to the procession. The
O defendants not only had a reasonable excuse but lawful authority. They O

were not the head of an unauthorised procession but part of a necessary


P P
dispersal plan.
Q Q

148. Once the 3 platoons were withdrawn from Victoria Park


R R
there were no officers there to carry out the police duty to facilitate the
S public meeting and assist with crowd control to ensure public safety. The S

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

G 150. The defence submit there was insufficient evidence to show G

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

were invited to assist with dispersal and they responded to directions


J J
from those on the stage on the day.
K K
st
151. The 1 defendant like some of the other defendants were not
L L
personally involved in the application for a LONO, not a member or an

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

procession without lawful authority or reasonable excuse.


H H

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

155. I have taken into account that as of 18 August 2019, all


N N
defendants on trial except the 4th defendant had clear records. I have
O considered the good character directions in relation to both credibility and O

propensity.
P P

Q 156. The burden of proof is on the prosecution. The defendants Q

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

157. The defendants elected not to give evidence. That is their


T T
right and no adverse inference can be drawn against them. The fact that
U U

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

E (2002) 5 HKCFAR 320. E

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

authority submitted does not mean that I have not considered it or


L L
factored it into my decision making. 
M M

159. I am sure after considering the evidence and submissions


N N
that there was an unauthorised public assembly from Victoria Park to
O Chater Road despite an objection to it by the Commissioner of Police. I O

am satisfied it consisted of more than 30 persons and was organised for a


P P
common purpose, a purpose set out in writing on the banner at the head
Q of the procession. I am sure it was a public assembly that took place in Q

contravention of section 13 of the POO.


R R

S 160. I am sure it was not a dispersal plan born out of necessity but S

an unauthorised public procession as defined by the POO. I am sure the


T T
prosecution can prove beyond reasonable doubt that there was a
U U

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

problematic before 3pm.


L L

M 162. In fact, there was evidence from PW6 that she had given M

express instructions to the person in charge, Figo Chan that were


N N
deliberately ignored. One of the conditions of the LONO was that the
O organisers had to adhere to instructions from the police. I am sure she was O

deliberately ignored because there was a pre-planned procession


P P
organised to start at 3pm despite the ban.
Q Q

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

admission. Moreover, it was also declared that the procession ended at


J J
Chater Road when the banner was laid down by all holding it, another
K indication it was not a dispersal plan but a procession with a start and K

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

intentionally defying it in the name of dispersal.


P P

Q 166. Without repeating again what was said in various interviews, Q

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

rather than an explanation behind a dispersal plan and overriding concern


H H
for safety.
I I

168. If the defendants were only there to assist with dispersal to


J J
ensure public safety and avoid overcrowding, then it does beggar belief
K they needed such a large banner that took so many of them to carry it. In K

addition, it appeared necessary for a cordon to go around the entire


L L
banner which meant this banner party took up well over the width of a
M carriageway. M

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

of logic and credibility.


T T

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

E was a planned unauthorized assembly. E

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

procession; it was no coincidence that this dispersal plan mirrored the


H H
banned procession.
I I

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

O conference on 16 August with the police offering an explanation for the O


objection. It was also specifically mentioned that anyone participating in
P P
an unauthorised procession in defiance of that objection would be
Q committing a criminal offence. Q

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

known for their pro-democratic stance. 3 of the defendants are legally


T T
trained and very experienced lawyers undoubtedly familiar with the POO.
U U

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

E lead a procession to defy the ban. I am sure this was deliberate. E

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

with the announcement of an invitation for them to assist CHRF on the


H H
day meant all the defendants were well aware that the police had objected
I to the public procession but in spite of that, CHRF nonetheless planned I

for it to proceed.
J J

K 176. I am in no doubt they knowingly participating in an K

unauthorised procession but has the prosecution proved they are


L L
organisers; that they organised that unauthorised assembly. A
M commonsense approach must be taken in defining the word “Organise”. M

The prosecution has relied on the facts of the case and also Flockhart v
N N
Robinson (1950) 2 KB 498.
O O

177. The prosecution relies on the evidence of the acceptance of


P P
the defendants of the invitation by CHRF to join a “water flow meeting”
Q from Victoria Park on 18 August. They rely on what can only be Q

described as an orderly and organised public procession from the video


R R
footage to show it proceeded under the direction and leadership of the
S defendants. S

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

G 179. Here, without the defendants forming the banner party it is G

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

directions where to go does not preclude them from being an organiser.


J J
They acted as one. They acted together; all are equally culpable.
K K

180. There of course, can be more than one organiser and an


L L
organiser does not have to ultimately participate or take part in the
M procession. M

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

184. The 1st defendant sought to distinguish Flockhart because


J J
the route was not planned by him. He seeks to rely on the footage of
K marshals holding the black cordon around the defendants and banner to K

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

no direct evidence of what he or any of the other defendants heard,


P P
believed, knew or intended despite many suggestions to that effect in
Q submissions. Q

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

public meeting, their deployment of officers to facilitate it or lack of, their


T T
lack of responsible planning to ensure public safety and public order,
U U

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

their water flow meeting to deal with that hazard.


N N

O 189. In her submissions she submits the police deliberately O

ignored the likely hazards by not deploying sufficient manpower. The


P P
evidence that they did not know of or consider the CHRF water flow
Q meeting procession a possibility is not credible. It is not credible they Q

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

necessary when the public procession started.


T T

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

191. I have considered all submissions relating to the credibility


H H
of the witnesses and the police operation that day. I have considered and
I accepted the evidence of particularly PW4 in explaining the lack of police I

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

192. I believe PW5’s evidence as to why he withdrew the 3


N N
platoons stationed at the West and East side of Victoria Park; it was
O prudent. I believe he did weigh up the pros and cons of remaining to O

facilitate crowd control versus withdrawing those 90 officers. It


P P
confirmed PW4’s fears were realistic and her plans to deploy police out
Q of sight but near enough if needed were appropriate for that day and in Q

those circumstances.
R R

S 193. In any event, the police plans, actions, inactions or as S

described during the trial as “their planlessness” are not relevant to


T T

U U

V V
A A

B B
whether the defendants intended to organise and participate in an

C
unauthorised assembly. C

D 194. Even if the police made mistakes, neglected their duties, D

ignored the CHRF press interviews and conferences or as Ms Po


E E
suggested, the police handling contained a “litany of errors” from the
F start, it does not make the public procession a dispersal plan. F

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

That is because I am sure an unauthorised procession was planned in


I I
advance to mirror the banned procession and flout the law. That is why
J J
Figo Chan did not even pay lip service to instructions given to him by

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

E was no lawful authority or reasonable excuse for the defendants to E


knowingly take part in an unauthorised assembly. These defences are not
F F
available to any of the defendants. I’m satisfied the prosecution evidence
G does not support these defences. G

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

authority or reasonable excuse in an unauthorised assembly, I should


J J
nevertheless go on to acquit him on the basis that the procession was “a
K reasonable and proportionate contravention of the law, having regard to K

the evil of a risk of serious injuries which could be caused by a potential


L L
stampede when a downpour descended on the crowd.”. I was referred to
M the law on the defence of necessity. Mr Dykes SC for the 2 nd and 5th M

defendants similarly referred to it and expanded on it in his submissions.


N N

O 200. It was submitted that because of the very real risk of serious O

injuries due to a potential stampede when and if it rained hard as well as


P P
the abdication by the police of their responsibility to facilitate the
Q dispersal of the large crowds inside the park, there was a necessity for Q

someone to organise and to participate in an orderly dispersal of this


R R
crowds.
S S

201. The defence of necessity is not common and usually only


T T
pleaded in extreme circumstances. The prosecution has referred me to the
U U

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

E 202. As it has been raised by the defence, it is for the prosecution E


to prove that whilst the defendants had the mens rea required when
F F
committing the offence, they were not acting out of compulsion. The
G prosecution needs to show the defendants did not act as they did because G

as a result of what they reasonably believed to be the situation, they had


H H
good cause to fear that otherwise death or serious physical injury would
I result or as Mr Dykes suggested, “could” result. The prosecution needs to I

show the commission of the offence, viewed objectively, was not


J J
reasonable and not proportionate having regard to the evil to be avoided
K or prevented. K

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

Defences read into Charge 1 – the 3rd Defendant


P P

Q 204. Mr Ho SC leading Mr Isaac Chan for the 3rd defendant Q

submits the defences of “lawful authority or reasonable excuse” should be


R R
read into Charge 1 and should operate in the same way as it does for
S Charge 2. He argues that the court has an equal duty to give effect to the S

right of freedom of assembly under both subsections; that right is


T T
engaged in both the offences of organising and knowingly participating
U U

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

not the other. The person who participates in an unauthorised assembly


H H
may have a reasonable excuse but it is difficult to conceive of the same
I when someone actually organises it. I

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

transcripts have been of enormous assistance when read in their entirety. I


N N
have considered all submissions.
O O

207. I am sure I can draw an irresistible inference from the


P P
evidence when considered together that the defendants with others
Q organised and participated in it themselves, an assembly that was subject Q

to an objection by the Commissioner of Police and therefore


R R
unauthorised.
S S

208. In conclusion, I find the prosecution has proved beyond


T T
reasonable doubt that all the defendants organised a public procession
U U

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

E 209. Similarly, I find the prosecution has proved beyond E


reasonable doubt that all the defendants without lawful authority or
F F
reasonable excuse, knowingly took part in a public procession which took
G place in contravention of the same section, which was an unauthorised G

assembly. All the elements of Charge 2 have been proved.


H H

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

operational level. It is submitted the sections should be struck down as


L L
unconstitutional as they failed to satisfy the proportionality analysis on
M both levels. M

N N
Systemic Proportionality Challenge
O O

211. The systematic constitutional challenge centres on whether


P P
criminalising the organisation and participation in an unauthorised
Q assembly amounts to a disproportionate restriction on the right to freedom Q

of assembly and procession protected under Article 27 of the Basic Law


R R
and Article 17 of the Hong Kong Bills of Rights Ordinance, Cap 383
S (“BORO)” which mirrors Article 21 of the International Covenant on S

Civil and Political Rights (“ICCPR”).


T T

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

that the imposition of criminal sanctions had no legitimate societal


I I
benefits, failing to strike a fair balance between the societal benefits and
J J
the protected rights of the defendants. This sanction creating offence was

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

E as prescribed by law. Those restrictions must be consistent with the E


provisions of the specified international conventions.
F F

G 217. Article 27 of the Basic Law provides; G

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

P 219. Article 17 recognises the right to peaceful assembly but P

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

unhealthy wind has been blowing in Hong Kong…”. It appears to have


L L
continued into 2019 and escalated from June that year. That was when
M this city experienced serious social unrest, public disorder, vandalism and M

escalating violence for months.


N N

O 222. The prosecution’s response to this constitutional challenge O

raised by all the defendants is that it is precluded by the Court of Final


P P
Appeal decision in Leung Kwok Hung & Others v HKSAR (2005) 8
Q HKCFAR 229. A systemic challenge cannot be launched on either Q

S17A(3)(b)(i) and S17A(3)(a) of the POO because it was held in that


R R
authority that the statutory notification scheme under the POO was
S constitutional. That decision includes sanctions and is binding on this S

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

E offence arose from a peaceful procession of between 40 and 96 people E


which was therefore unauthorised. At issue was whether the statutory
F F
scheme for regulating public processions was contrary to the right to
G freedom of peaceful assembly guaranteed by the Basic Law and Hong G

Kong Bill of Rights.


H H

I 224. Although the majority of the Court of Final Appeal in 2005 I

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

severed and the remaining concept of public order is sufficiently certain.


L L
It was decided the notification scheme was constitutional and the
M convictions were upheld. M

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

police could exercise in restricting the freedom of assembly and


P P
procession.
Q Q

226. This authority is 15 years old but despite a submission


R R
otherwise, it is still without doubt good law and binding on lower courts.
S It has been referred to since as good law and not least, most recently in S

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

should be analysed through a four step proportionality test. It would be


H H
subject to a proportionality analysis as set out in Hysan Development Co
I Ltd v Town Planning Board (2016) 19 HKCFAR 372. I

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

1 here. Both unauthorised public processions were peaceful, in that there


L L
was no violence. However, in this case I find there was the major traffic
M disruption on Hong Kong Island caused by the unauthorised public M

procession held on 18 August 2019; during and after it. It is


N N
distinguishing and is relevant to the submission the procession was
O peaceful. O

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

these facts more serious.


T T

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

of Rights and Articles 27 and 39 of the Basic Law” (see Tab


H H
41/Prosecution’s supplemental authorities bundle (B))
I I

231. In that same bundle at Tab 42, the Determination of the


J J
Court of Final Appeal dated 6 January 2005 decided that the 3 questions
K certified by the Court of Appeal boiled down to one and the same K

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

Magistrate, Mr Patrick Li, as he then was, is reported in (2003) 1


R R
HKLRD 468. It is useful for this chronology to highlight the defendant’s
S argument set out in the headnote. Leung Kwok Hung and the other S

defendants argued that:


T T

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

I (c) organising an unauthorised public procession amounted I

to a criminal offence, and the penalty imposed for that


J J
offence was disproportionate.
K K

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

simply prescribes maximum penalties. He found that the section, that is


R R
s17A(3), did not violate the standard provided in the BORO.
S S

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

E 236. S17A(3) is set out in its entirety in para 34 of the judgement. E


In para 38, the Court of Appeal refers to the specific challenge by the
F F
appellants to the offence creating provisions of s17A. In para 39, it is
G apparent no separate submissions were made by the defence with regard G

to this section. Ma CJHC said the issue of the constitutionality of s17A


H H
depended on the determination of the constitutionality of the notification
I provisions of the Ordinance. I

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

convictions upheld. As Ma CJHC said at para 61;


L L

M “Accordingly, I am of the view that the notification scheme for M


public processions contained in ss.13 to 15 of the POO is
constitutional, whichever test is adopted (see paras 20 to 22
N above). It follows from this that s17A is constitutional as well” N

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

E in the deliberation of the Court of Final Appeal. E

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

appellant in that appeal.


J J

K 241. The prosecution has exhibited the submissions dated 5 May K

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

O 242. Mr Lee submitted there were many objectionable provisions O

in the POO which were unconstitutional including the maximum penalty


P P
of 5 years’ imprisonment for holding and taking part in an unauthorised
Q assembly. At page 6 of those submissions Mr Lee suggested that in a new Q

scheme that should be enacted by the Legislative Council, there should


R R
be no criminal sanction in the notification system for merely failing to
S notify the police or alternatively, if there was a penalty then it should S

only be a financial penalty.


T T

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

E criminalisation and penalty in coming to its decision to uphold the E


convictions.
F F

G 244. It was certainly a live matter during the appeal as seen from G

Mr Lee’s written submissions and the reference to the actual provisions


H H
of that section in the judgement. I do not agree with the submission that
I because the Court of Final Appeal did not focus on the proportionality of I

the penalty therefore, that penalty section has not been subject to any
J J
authoritative scrutiny.
K K

245. The Court of Appeal in Leung Kwok Hung (No.2) 2020,


L L
clearly thought it had been subject to scrutiny and a proportionality
M analysis. In para 206 the court noted that in Leung Kwok Hung 2005 even M

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

the freedom of assembly procession. The court goes on and I quote;


P P

Q “…In light of that, it would be surprising if after the severance Q


of ordre public from the relevant provisions, the majority of
the Court of Final Appeal still regarded some aspects of the
R R
statutory discretion concerning unauthorised assembly other
than the requirement to give notification to be unconstitutional
S and made no comment on the same.” S

T 246. This means the Court of Final Appeal in 2005 considered T

the constitutionality of not just the notification requirement but so much


U U

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

public order concerns for an unauthorised assembly in their appeal;


J J

K “208.…(1) for those gatherings held without complying with K


the requisite notification requirement, the justification for
imposing criminal sanctions against the same has been
L explained by the majority in Leung Kwok Hung & Ors v L
HKSAR;…”
M M

249. It is clear from that confirmation that S17A was also


N N
considered in 2005 to be constitutional. It is worthy of note that even
O Bokhary PJ, dissenting in 2005, considered the constitutionality of s17A O

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

5 years’ imprisonment”, para 115. Despite the severity of that penalty


R R
being a live issue in that appeal, he said no more and did not go on to
S strike it down for that reason. S

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

HKSAR for the purposes of prosecuting this trial. In that judgement,


U U

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

launched in this trial did not materialise.


P P

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

T notification scheme provisions. T

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

made of the difference in approach when the unauthorised assembly was


H H
peaceful. It is unnecessary for me to refer to all the submissions and the
I authorities including many from the European Court of Human Rights I

because of my finding that I am bound by the Leung Kwok Hung 2005


J J
authority.
K K

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

closer examination of this submission, firstly, I would have found that


N N
this unauthorised public procession on 18 August 2019 was not without
O reprehensible conduct. Public order considerations are not confined to O

just outbreaks of violence but also serious traffic disruption as arose here.
P P

Q 262. Secondly, there is a distinction in this case in that there was Q

notification but no consent given which is more serious, especially in the


R R
light of my finding that there was a prior plan and intent to thwart that
S S
ban. It would make no sense and make the law illusory if a prosecution

T
here would be disproportionate because the unauthorised acts were
T
without violence.
U U

V V
A A

B B

C 263. I will address the defence submission that the defendants C

were relying on their right of peaceful demonstration as a lawful excuse.


D D
It was submitted that when a defendant says he is acting within the lawful
E exercise of his freedom of peaceful assembly and it was peaceful then, to E

establish if he has any reasonable excuse must require an application of


F F
the four step proportionality test. The authority of Yeung May Wan &
G Ors v HKSAR (2005) 8 HKCFAR 137 and DPP v Ziegler (2019) 1Cr G

App R 454 were cited to support that submission. Ziegler is subject to an


H H
appeal pending. Neither the Ziegler and Yeung May Wan cases were
I concerned with whether a scheme was constitutional. I

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

on the pavement, she was charged with causing nuisance in a public


L L
place. The nature of those charges and their facts are very different to
M these facts and a s17(A) offence. M

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

reasonable excuse as a defence for charge 2 would only have succeeded


P P
if there was any excuse acceptable to a reasonable person to justify
Q ignoring the ban by the Commissioner of Police. Q

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,

E (unauthorised because the legitimate aim behind it is public order) but E


because it was ultimately peaceful and there was no violence he should
F F
not be arrested, prosecuted or convicted.
G G

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

upholding the effectiveness of the notification system. This would be to


L L
enable the police to make appropriate arrangements to facilitate
M processions. M

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

273. I would have agreed with the prosecution that if I had


P P
rd
proceeded to the 3 step, in view of the safeguards built into the
Q Q
notification scheme and the court’s role in sentencing according to the

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

have found favour in their analysis.


L L

M 276. I also do not agree with the submission that a maximum of 5 M

years’ imprisonment is too severe and would have a chilling effect on


N N
those intending to hold or participate in a procession. If I had analysed
O the proportionality of s17A(3), I would have said it is not a mandatory O

sentence but flexible and reserved for the worst-case scenario. It is


P P
always up to the court to decide on a penalty which is commensurate and
Q proportionate to the facts and the mitigation. Any sentence can be subject Q

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

E 278. Many of the defendants before me today were then E

legislators actively involved in the debate against that motion. That


F F
motion was carried by the majority, see Tabs 35-38/Prosecution’s
G supplemental authorities bundle (A). Penalties are for the local legislature G

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

Kong Legislative Council.


J J

K 279. As to the numerous references to overseas jurisdictions and K

authorities to support the submissions, they are persuasive but not


L L
binding on Hong Kong Courts. Where matters of disruption to public
M order are concerned, Hong Kong is unique with its high-density, crowded M

districts, very different locality issues and even cultural considerations


N N
when compared. Not often will situations elsewhere be identical or
O comparable to that in Hong Kong. O

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

M 282. Accordingly, this systemic challenge must fail. M

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

R rights of those defendants. Mr Hector Pun SC for the 4 th defendant R


appears to have no issue with the arrest but submits a decision to
S S
prosecute violates the principle of tolerance and proportionality on an
T operational level. T

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

E from the public meeting in Victoria Park. There was no violence or E


breach of the peace or reprehensible conduct caused directly by the
F F
defendants. The delay of 8 months before arrest is unjustified. The
G defendants were only exercising their constitutional rights peacefully and G

the public procession ended peacefully.


H H

I 285. Ms Eu submits the Court of Appeal in Leung Kwok Hung I

(No 2) 2020 laid down guidelines for an operational challenge. In the


J J
lead up to these guidelines the Court of Appeal first considered relevant
K authorities on the permissible restrictions on the fundamental rights of K

demonstration and expression.


L L

M 286. That Prohibition on Face Covering Regulation came into M

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

proportionality analysis has to be applied on 2 different levels. I quote the


T T
paragraphs identified as the guidelines;
U U

V V
A A

B B

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


C C
different levels:

D (1) examining the systemic proportionality by reference to the D


legislation or rules in question;
E (2) examining the operational proportionality by reference to E
the actual implementation or enforcement of the relevant
F rule on the facts and specific circumstances of a case at the F
operational level.

G 183. In these appeals, it should be emphasised that we are G


only concerned with the first level of challenges. It remains for
H the court to assess the proportionality on the second level on H
the facts and circumstances in a particular case if a charge is
brought against a person.
I I
184. The Strasbourg Court continued at (155) – (157) in
Kudrevicious v Lithuania to identify the need to have measures
J J
to restrict conducts causing disruption to ordinary life to a
degree exceeding that which is inevitable for peaceful
K demonstration and assembly. At (155), the Court alluded to 2 K
important mindsets for striking the balance:
L L
(1) on the one hand, the public authorities have to show a
degree of tolerance;
M M
(2) on the other hand, demonstrators should comply with the
regulations in force.”
N N

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

“181…..Whilst acknowledging that it is essential to have a


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

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

Q rights of freedom of procession and freedom of assembly. There is Q


nothing to subject to an operational proportionality challenge. However,
R R
it does not follow that there will be no action taken by the authorities
S later. S

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

E blocking the procession, then those acts could be subject to an E


operational proportionality challenge according to para182(2). There
F F
cannot be “carte blanche” enforcement action ignoring tolerance and
G proportionality if the procession was peaceful or disruption minor. G

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

unauthorised assembly. Unless there is violence or other reprehensible


L L
conduct on the part of some demonstrators posing serious and imminent
M risk to public order and safety which requires immediate actions on the M

part of the police then, in light of the principle of tolerance and


N N
proportionality, there should be prior warnings and the issuance and
O announcement of an order under s17(3) before more drastic actions like O

arrests and physical dispersal are taken.


P P

Q 294. This again can only mean with a plain reading that the Court Q

of Appeal contemplates what would be subject to an operational


R R
proportionality challenge is any concrete or definitive actions taken on
S the day that imposes a restriction upon the exercise by the defendants of S

their rights of freedom of assembly and procession. The same


T T
consideration is applied to other offences under s17A as discussed in
U U

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

Farmers were arrested, prosecuted and convicted; they were given


H H
suspended sentences. They appealed and the European Court of Human
I Rights, the “ECHR”, held that the criminal convictions were justified as I

being necessary for pursuing the legitimate aims of prevention of


J J
disorder and protection of the rights and freedoms of others and found no
K violation of the freedom of assembly. K

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

to ensure the peaceful conduct of the gathering and safety of everyone


P P
which satisfied any positive obligation they had. The Court ruled the
Q sanctions were not disproportionate in view of the serious disruption of Q

public order and traffic; it was classified as reprehensible acts.


R R

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

subsequent arrest and decision to prosecute are not matters envisaged by


H H
the Court of Appeal in Leung Kwok Hung (No.2) 2020 to be subject to
I the operational proportionality challenge. I agree with that interpretation. I

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

these 2 charges are constitutional then how can it be disproportionate for


N N
defendants to then be arrested and prosecuted.
O O

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.” can be interpreted to mean that that charge or the decision to


R R
prosecute is open to an operational proportionality challenge and the
S decision to prosecute should be examined. It just simply means if a S

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

E challenge on the arrest, decision to prosecute and conviction there was E


reliance on police action or inaction before 18 August and on 18 August.
F F
None of the matters sought to be relied on were relevant to the charges
G themselves when I found the prosecution proved the charges beyond G

reasonable doubt but more importantly none of these matters relied on or


H H
referred to restricted or limited the rights or freedoms of the defendants
I relating to assembly or procession. I

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

If the propriety, necessity and lawfulness of an arrest is questioned, that


N N
will be dealt with on the facts during the course of the criminal trial and
O not by a constitutional challenge. O

P P
303. Only if there have been restrictions limiting some
Q constitutional rights on an operational level would the court determine Q

the permissible extent of those restrictions applying the 4-step


R R
proportionality test.
S S

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

instances where the Judiciary will interfere with a decision to prosecute


H H
unless it can either be demonstrated that the Department of Justice acted
I in bad faith or in obedience to a political instruction. I

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

depth the question of whether it was appropriate to judicial review the


L L
Secretary for Justice’s prosecutorial decisions. He ultimately held that
M that control of criminal prosecutions is amenable to judicial review but M

only to the very limited extent that he described. Therefore, in a judicial


N N
review the court can determine whether the Secretary for Justice has, or
O has not, acted within the limits of their constitutional power. O

P P
307. Hartmann J only mentioned 3 particular situations where the
Q Secretary would be regarded as having acted outside the constitutional Q

limits and that would be if either acting in obedience to a political


R R
instruction, or in bad faith or there was rigid fettering of prosecutorial
S discretion. However, that list was not exhaustive of the circumstances in S

which judicial interference would be justified. It is essentially only in


T T
extremely rare situations would a court find a prosecutorial decision
U U

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

contended by the defendant that the decision to prosecute was an abuse of


H H
the court’s process, itself an exceptional and limited remedy; and that,
I therefore, the district judge had been right to refuse to consider the I

defendant’s submission that the decision to prosecute was


J J
disproportionate.
K K

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

analysis. I disagree, that decision to prosecute is not an issue for this


N N
court to deal with; the task of this court is to try the case on the evidence
O admissible in a criminal trial. O

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

function of the court to decide whether that decision per se is


R R
disproportionate. The same principle must apply to the submission that a
S conviction is disproportionate. S

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

E constitutional challenge of both s17A(3)(b)(i) and s17A(3)(a) of the POO E


on an operational level must fail.
F F

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

amounted to an unauthorised assembly on 18 August 2019. At the same


J J
time, the prosecution has proved beyond reasonable doubt that they all
K knowingly participated in that unauthorised assembly. K

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

both Charges 1 and 2.


N N

O 314. I did go on to consider the constitutional challenges. The O

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

E Department of Justice according to the Basic Law; there were no grounds E


raised to justify an interference with that decision.
F F

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