【大公報訊】候任立法會議員梁國雄去年在當時任房屋及規劃地政局局長孫明揚住所外請願時，與在場警員發生衝突，非法集結罪成，東區法院裁判官昨日判決時指出，梁國雄須為事件負上最大責任，遂判處他及其助手區國權各六十小時社會服務令，其餘四名被告則准以自簽二千元及守行為十八個月。
梁國雄與捍衛基層住屋權益聯盟成員，在去年六月三日，到當時任房屋及規劃地政局局長外孫明揚位於跑馬地住所請願，期間與在場警員發生衝突，被控非法集結，經審訊罪名成立。
六名被告依次為區國權、李世鴻、張文慧、梁國雄、鄭駿唯及洪啟東，年齡由二十一歲至五十一歲不等。六人被裁定一項非法集結罪名成立，首、次被告原另被控三項襲警罪，但經審訊後獲裁定罪名不成立。據控方資料顯示，除梁國雄有十一次案底外，身為梁國雄議員助理的首被告區國權一九九五年有非禮案底。
裁判官林嘉欣在判刑時指出，議員梁國雄帶領其他人衝擊警方防線，事發地點為屋苑的行車通道和停車場，屬私人住宅一部分，事件終演變成非法集結，法庭不會容許市民以任何方式意圖超越警方的防線，或對其他市民造成滋擾，破壞社會秩序。不過，林嘉欣說，在聽取辯方陳詞後，認為毋須對六人作出監禁式刑罰，但必須有合適的判刑。
林官表示，明白六名被告並非常見的罪犯，他們有正當職業，事發時只是進行示威請願，從錄影片段可看到，梁國雄是衝突的始作俑者，首被告區國權以打欖球方式衝擊警方防線，行動最激烈，所以兩人刑責最大，遂判處兩人各六十小時社會服務令，其餘四名被告則准以自簽二千元及守行為十八個月。
裁判官宣讀判詞後，在庭上講出自己的感想，表示經過二十多日審訊，認為社會要有人走在前線爭取權利，但大原則是不要犯法。林官並指出，抗爭要有理智，有時要力敵有時亦要智取。他引述電影《暴雨驕陽》，認為戲中教師教導學生，不應受到傳統教條約束。
案發去年六月三日早上約十一時，六名被告與一批示威者就基層住屋問題，在孫明揚位於跑馬地箕璉坊的住所外示威，期間更擅自衝入屋苑，當中有三名警員遇襲受傷。
HONG
KONG SPECIAL ADMINISTRATIVE REGION
COURT OF
FIRST INSTANCE
MAGISTRACY
APPEAL NO 948 OF 2008
(ON
APPEAL FROM ESCC 3707/2007)
____________
BETWEEN
HKSAR Respondent
and
AU KWOK KUEN（區國權） 1st Appellant
LI SAI HUNG（李世鴻） 2nd Appellant
CHEUNG MAN WAI FLORENCE（張文慧） 3rd Appellant
LEUNG KWOK HUNG（梁國雄） 4th Appellant
CHENG CHUN WAI（鄭駿唯） 5th Appellant
HUNG KAI TUNG（洪啟東） 6th Appellant
____________
Before:
Hon Andrew Cheung J in Court
Dates of
Hearing: 3 – 6 May 2010
Date of
Judgment: 2 June 2010
_______________
J U D G
M E N T
_______________
1 Introduction
1. These appeals raise the general question of
the limits of the right of assembly and of the right to freedom of expression
when they are sought to be exercised in private residential property without
the permission of its owners or occupiers.
2. The 1st to 6th defendants were jointly
charged with one count of taking part in an unlawful assembly (charge 1),
contrary to section 18(3) of the Public Order Ordinance (Cap 245). In addition, the 1st and 2nd defendants were
respectively charged with two counts and one count of assaulting a police
officer in the due execution of his duty (ie charges 2 and 4, and charge 3
respectively).
3. All six defendants pleaded not guilty to
the charges. After the close of the
prosecution case, the prosecution accepted that the 1st defendant had no case
to answer in respect of charge 4. After
hearing submissions, the Magistrate (Mr Gary Lam) ruled that the 1st to 6th
defendants had a case to answer in respect of charge 1, and the 1st and 2nd
defendants had a case to answer in respect of charges 2 and 3 respectively.
4. The defendants elected not to give
evidence. However, the 2nd defendant
called a total of 7 defence witnesses.
The other five defendants also relied on their evidence.
5. During the trial, the defence also made
four applications to the Court for the issue of a witness summons to Mr Michael
Suen Ming-yeung (Mr Suen), the then Secretary for Housing, Planning and Lands,
to testify for the defence. The
Magistrate refused all four applications.
6. The Magistrate found all six defendants
guilty of charge 1, but he acquitted the 1st and 2nd defendants of charge 2 and
charge 3 respectively. On charge 1, the
1st and 4th defendants were each sentenced to a community service order for 60
hours, while the 2nd, 3rd, 5th and 6th defendants were each bound over to be of
good behaviour (in the sum of $2,000 for a period of 18 months).
7. All defendants appeal from their
convictions of charge 1 to the Court of First Instance.
2 Facts and issues
8. The facts and issues may be briefly
stated. On Sunday, 3 June 2007 at around
11:40 am, a group of about 26 persons arrived at the outside of the entrance of
Shuk Yuen Building, No 2 Green Lane, to present a petition and hold a
demonstration. It was organised by a
housing concern group. Shuk Yuen
Building is a private residential development.
It comprises 6 blocks of low-rise multi-storey buildings (Blocks A to
F). There is only one entrance to the
development, which is used both by the residents/visitors as well as
vehicles. A pair of metal gates which
open inwards are installed at the entrance.
The metal gates are operated electrically by the caretaker whose booth
is located immediately behind the gates, which lead onto a private
driveway. The driveway leads to a common
open space round a corner several hundred metres away, where residents park
their cars. On one side of the open
space are Blocks C and D. Mr Suen, to
whom the concern group planned to make the petition on some housing matter, resided
at a flat in Block D at the time.
9. The metal gates were closed at the time
when the group of “petitioners” (as they have been called) arrived at the
entrance to the development. They
remained closed until around 12:05 pm when a resident’s vehicle returned to the
development. The caretaker opened the
metal gates to allow the vehicle in.
Seizing upon the opportunity, the petitioners went inside the
development through the gates at the same time.
The several policemen who were at the scene to maintain order were
unable to prevent the petitioners from entering the gates. But they immediately formed a “human chain”
on the driveway to keep the petitioners from approaching the common open
space. In those circumstances, the
petitioners assembled at that part of the driveway near the entrance. Using loudhailers, they shouted slogans and
demanded to see Mr Suen.
10. At around 12:20 pm, the 4th defendant (a
legislative counsellor who is widely known as “Long Hair”) arrived at the scene
by taxi to support the petitioners. He
entered the development through the entrance (the gates had remained open after
the petitioners’ entry) and it is plain from the evidence that he took an
active part in assisting the petitioners in their cause that day.
11. The evidence also shows that the police
officers present had been asking the petitioners to stay where they were,
whilst they would, so they said, find out for the petitioners what Mr Suen’s
attitude towards the petitioners was.
12. However, by around 12:51 pm, some of the
petitioners had run out of their patience and, led by the 4th defendant, they
charged the police cordon. Some of them
managed to break through the police line.
The police officers withdrew down the driveway and eventually the
petitioners reached the common space at the end of the driveway and assembled
at the ground floor (common) entrance to Blocks C and D.
13. The prosecution’s case was that the assembly
which the six defendants participated in turned into an unlawful one when they
took part in charging the police cordon.
The events were video-recorded and the recordings were produced and
played by consent at trial.
14. In convicting the defendants of charge 1, the
Magistrate mainly relied on the recordings produced by the parties, as well as
the evidence of the civilian witnesses, namely PW7 (Madam Poon), a resident in
the development, and PW1 (Mr Chan), the caretaker. Little weight was placed on the evidence of
the police officers called by the prosecution and by the defence.
15. In essence, the Magistrate rejected the
defence’s argument that at the material time, the defendants were lawfully
exercising their constitutional right of assembly and right to freedom of
expression (whilst inside the residential development). The Magistrate found that the defendants were
trespassers and as such they did not enjoy any of the constitutional rights in
question whilst within the private residential premises of others. The Magistrate therefore rejected as
irrelevant arguments that the police had breached its positive duty to assist
the petitioners in the exercise of their rights and that the police was
obstructing or interfering with the petitioners’ exercise of their rights. The Magistrate further rejected as immaterial
the argument that the police had misled the petitioners into believing that it
was contacting Mr Suen for his response.
16. As to the defendants’ commission of the
offence, relying on the video recordings, the Magistrate found that each of
them took part in charging the police cordon, which was lawfully formed by the
police on the driveway. He found that
all defendants had the necessary mens rea for the commission of the offence.
17. In these appeals, various perfected grounds
are relied on by counsel to challenge the convictions and some of them overlap
with each other. The grounds raised by
the 4th defendant are covered by the perfected grounds. The perfected grounds, as they have been
developed in argument, are dealt with under different headings below.
3 Limits of freedom of assembly and of
expression – grounds 1(a), (c), (d), (e) & (j) and 2
3.1 Defendants’
arguments
18. It is plain that central to the defendants’
arguments is the contention that their constitutional right of assembly and
right to freedom of expression did not stop at the entrance to the private
residential development, regardless of whether they were permitted to enter the
same or not. In other words, whilst they
maintain that they were not trespassers at the material time (by reason of some
implied permission to enter and remain), but even if they were, that would not
have put to an end their constitutional rights in question. That being the case, it is necessary, the
defendants argue, to examine whether the police has breached its positive duty
to assist the petitioners in the exercise of their constitutional rights,
whether it has unlawfully obstructed or interfered with their exercise of those
rights, and therefore whether the defendants are guilty of unlawful assembly
under section 18 of the Public Order Ordinance which reads:
“(1) When 3 or more persons, assembled together, conduct
themselves in a disorderly, intimidating, insulting or provocative manner
intended or likely to cause any person reasonably to fear that the persons so
assembled will commit a breach of the peace, or will by such conduct provoke
other persons to commit a breach of the peace, they are an unlawful assembly.
(2) It is immaterial that the original assembly
was lawful if being assembled, they conduct themselves in such a manner as
aforesaid.
(3) Any person who takes part in an assembly
which is an unlawful assembly by virtue of subsection (1) shall be guilty of
the offence of unlawful assembly and shall be liable –
(a) on conviction on indictment, to imprisonment
for 5 years; and
(b) on summary conviction, to a fine of $5,000
and to imprisonment for 3 years.”
19. Plainly, whether the police was duly
executing its duty, or was wrongfully obstructing or interfering with the
petitioners’ lawful exercise of their constitutional rights, would greatly
affect the question of whether there was, or was likely to be, a “breach of the
peace”.
20. Mr Hectar Pun for the 1st, 3rd and 6th
defendants, Miss Annie Leung appearing for the 2nd and 5th defendants, and the
4th defendant acting in person, all argue that the right of assembly and the
right to freedom of expression do not stop at the boundary of a privately owned
property, even if no permission is given by the owner of the property for the
individuals in question exercising those rights to enter or remain in the
property. They argue that when those
rights conflict with the owner’s right to his private property, a sort of
“proportionality test” or “balancing exercise” has to be conducted in order to
determine the extent or limits of the individuals’ right of assembly and right
to freedom of expression whilst within the owner’s private property. They argue that this is a fact-sensitive
exercise, which must depend on the entire circumstances of each individual
case. No hard and fast rule can be laid
down. Indeed, even in respect of this
case, Mr Pun is unable or reluctant to tell the Court what exactly constitute
the limits of the petitioners’ rights whilst within the private residential
development in question, or, put another way, where, physically within the
private residential development in question, must the petitioners stop, in
order not to overstep the legal boundary and render the exercise of their
constitutional rights unlawful.
3.2 Preliminary observations
21. Counsel rely on some authorities to support
their arguments. I will presently return
to these authorities. However, I do not
believe that the law is as uncertain and the result as unpredictable as
counsel’s arguments would suggest. Such
a result is not only unsatisfactory from the perspective of a private
residential owner, who would not be able to tell in advance which part of his
property is free from intrusion by others in the exercise of their “lawful”
constitutional right of assembly and right to freedom of expression, but it is
also unsatisfactory to those seeking to exercise their constitutional
rights. For they would be in danger of
exceeding the legal limits of their constitutional rights once they enter into
private residential premises.
22. I do not believe that this represents the
state of the law.
3.3 Relevant constitutional provisions
23. Some provisions in the Basic Law are highly
relevant:
“Article 5
The
socialist system and policies shall not be practised in the Hong Kong Special
Administrative Region, and the previous capitalist system and way of life shall
remain unchanged for 50 years.
Article
6
The Hong
Kong Special Administrative Region shall protect the right of private ownership
of property in accordance with law.
…
Article
27
Hong
Kong residents shall have freedom of speech, of the press and of publication;
freedom of association, of assembly, of procession and of demonstration; and
the right and freedom to form and join trade unions, and to strike.
…
Article
29
The
homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion
into, a resident’s home or other premises shall be prohibited.
…
Article
39
The
provisions of the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, and
international labour conventions as applied to Hong Kong shall remain in force
and shall be implemented through the laws of the Hong Kong Special
Administrative Region.
The
rights and freedoms enjoyed by Hong Kong residents shall not be restricted
unless as prescribed by law. Such
restrictions shall not contravene the provisions of the preceding paragraph of
this Article.
…
Article
105
The Hong
Kong Special Administrative Region shall, in accordance with law, protect the
right of individuals and legal persons to the acquisition, use, disposal and
inheritance of property and their right to compensation for lawful deprivation
of their property.
…”
24. Likewise, it is important to consider some of
the provisions in the Hong Kong Bill of Rights, which is constitutionally
entrenched by article 39 of the Basic Law:
“ Article
14
Protection
of privacy, family, home,
correspondence,
honour and reputation
(1) No one shall be subjected to arbitrary or
unlawful interference with his privacy, family, home or correspondence, nor to
unlawful attacks on his honour and reputation.
(2) Everyone has the right to the protection of
the law against such interference or attacks.
…
Article
16
Freedom
of opinion and expression
(1) Everyone shall have the right to hold
opinions without interference.
(2) Everyone shall have the right to freedom of
expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in
writing or in print, in the form of art, or through any other media of his
choice.
(3) The exercise of the rights provided for in
paragraph (2) of this article carries with it special duties and responsibilities.
It may therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary -
(a) for respect of the rights or reputations of
others; or
(b) for the protection of national security or of
public order (ordre public), or of public health or morals.
Article
17
Right of
peaceful assembly
The right of peaceful assembly shall be
recognized. No restrictions may be
placed on the exercise of this right other than those imposed in conformity
with the law and which are necessary in a democratic society in the interests
of national security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the rights and
freedoms of others.”
3.4 Protection and respect of the rights of
others
25. The right of assembly and the right to
freedom of expression are not absolute.
Article 17 of the Hong Kong Bill of Rights which is based on article 21
of the International Covenant on Civil and Political Rights (ICCPR) which
guarantees the right of peaceful assembly, specifically provides that
restrictions on the exercise of the right may be imposed in conformity with the
law, provided that they are “necessary in a democratic society in the interests
of … the protection of the rights and freedoms of others”. Likewise, article 16(2) of the Bill
guarantees the right to freedom of expression.
However, article 16(3)(a) expressly provides that the right is subject
to restrictions that are provided by law and are necessary “for respect of the
rights… of others”.
26. In the present context where one is concerned
with a private residential development, various rights of the co-owners of the
development are involved. They are not
mere common law rights to property. They
are constitutional rights also found in the Hong Kong Bill of Rights as well as
Chapter III of the Basic Law which govern the “fundamental rights” of the
residents of the Hong Kong Special Administrative Region. In particular, article 29 of the Basic Law
specifically provides that “the homes and other premises” of Hong Kong
residents shall be “inviolable”, and “arbitrary or unlawful search of, or
intrusion into, a resident’s home or other premises shall be prohibited”. In the same vein, article 14 of the Hong Kong
Bill of Rights clearly stipulates that no one shall be subjected to unlawful
interference with his privacy or home, and everyone has the right to the
protection of the law against such interference.
27. Furthermore, article 105 under Chapter V of
the Basic Law expressly states that the Hong Kong Special Administrative Region
shall, in accordance with law, protect the right of individuals to, amongst
other things, the use of their property.
28. All this is not surprising because article 5
of the Basic Law, under Chapter I (General Principles), specifically guarantees
that the socialist system and policies shall not be practised in the Hong Kong
Special Administrative Region, whereas “the previous capitalist system and way
of life shall remain unchanged for 50 years”.
It is trite that a hallmark of a capitalist society is its high respect
for personal ownership and property rights.
This finds expression in article 6 of the Basic Law which requires the Special
Administrative Region to protect the right of private ownership of property in
accordance with law.
29. Manfred Nowak, in his classic work, UN
Covenant on Civil and Political Rights CCPR Commentary (2nd revised edition),
explains the “rights and freedoms of others” exception to article 21 of the
ICCPR (on which article 17 of the Hong Kong Bill of Rights is based) as follows
(at pp 493-494):
“e) Rights and Freedoms of Others
This
protected interest can be found in all limitation clauses in the Covenant, but
in contrast to Art. 18(3), it relates not only to fundamental rights. The limits on freedom of assembly which stem
from the protection of the rights of personality of others (in particular,
honour and reputation) are the same as those on freedom of expression and
information. To be taken into
consideration with assemblies are the rights of passers-by, as well as those of
participants, to personal safety and physical integrity, which have been dealt
with in the context of public safety. In
addition, the prohibition of advocacy of hatred set down in Art. 20(2) should
be mentioned in this regard. However,
States parties are under an obligation of protection, and only when this has
failed is the restriction or breaking up of the assembly permissible ultima
ratio. As with freedom of movement,
freedom of assembly is subject to limitations for the protection of private
property of others. Art. 21 protects
assemblies on private property or in private buildings to the same extent as on
public streets, squares or in public assembly rooms. However, the prior approval of the owner is
necessary for all property and buildings not freely accessible to the public,
regardless of a possible requirement of a public license. This also applies to publicly owned buildings
and property. However, the State is
subject here to a certain obligation to fulfil, as results from the character
of freedom of assembly as a political freedom, and, especially, from the
prohibition of discrimination. For
instance, the private owner of a performance hall need not make available his
or her assembly rooms to a political organization with which he or she is
uncomfortable, whereas Art. 2(1) requires States parties to ensure freedom of
assembly without distinction as to political or other opinion, i.e., not to
discriminate for this or any other listed reason in making available public
assembly rooms. As with freedom of
movement, protection of private property must not lead to a complete
undermining of real possibilities for assembling. In such cases, States parties must provide
sufficient public facilities for exercising freedom of assembly.” (emphasis
added)
30. In Hong Kong, the position is an a fortiori
one. This is because unlike the position
under the ICCPR, private property rights are constitutionally protected under
articles 6, 29 and 105 of the Basic Law.
3.5 Cases on activities within privately owned
premises
31. Nowak’s view is echoed by the European Court
of Human Rights in Appleby v United Kingdom (2003) 37 EHRR 38, a case concerning
the rights to freedom of expression and to peaceful assembly. In that case, an environmental group
campaigned against a plan to build on the only public playing field near a town
centre. It set about collecting
signatures for a petition to persuade the local council to reject the
project. It tried to set up stands in a
privately owned shopping mall in the town centre. However, it was prevented from doing so by
security guards employed by the company which owned the shopping mall, as the
company took a strictly neutral stance on all political and religious
issues. Relying on articles 10 and 11 of
the European Convention on Human Rights on the rights to freedom of expression
and to peaceful assembly respectively, members of the environmental group
complained that they had been prevented from meeting in their town centre to
share information and ideas about the proposed building plans.
32. After considering the domestic position in
the United Kingdom as well as the situations in the United States and Canada,
the European Court observed:
“46 The Court would observe that, though the cases from the
United States in particular illustrate an interesting trend in accommodating
freedom of expression to privately owned property open to the public, the US Supreme
Court has refrained from holding that there is a federal constitutional right
of free speech in a privately owned shopping mall. Authorities from the individual states show a
variety of approaches to the public and private law issues that have arisen in
widely differing factual situations. It
cannot be said that there is as yet any emerging consensus that could assist
the Court in its examination in this case concerning Art. 10 of the Convention.
47 That provision, notwithstanding the
acknowledged importance of freedom of expression, does not bestow any freedom
of forum for the exercise of that right.
While it is true that demographic, social, economic and technological
developments are changing the ways in which people move around and come into contact
with each other, the Court is not persuaded that this requires the automatic
creation of rights of entry to private property, or even, necessarily, to all
publicly owned property (Government offices and ministries, for instance). Where however the bar on access to property
has the effect of preventing any effective exercise of freedom of expression or
it can be said that the essence of the right has been destroyed, the Court
would not exclude that a positive obligation could arise for the State to protect
the enjoyment of Convention rights by regulating property rights. The corporate town, where the entire
municipality was controlled by a private body, might be an example.” (emphasis
added)
33. On the facts, the Court did not consider that
the members of the environmental group could claim that they were, as a result
of the refusal of the private company which owned the shopping mall,
effectively prevented from communicating their views to their fellow
citizens. There were other means and
ways to express their views, and their argument that they were unable otherwise
to exercise their freedom of expression in a meaningful manner was rejected
(para 48). Based on largely identical
considerations, the Court found that there was no breach of the right of
peaceful assembly either (para 52).
34. In Appleby, para 27, the European Court of
Human Rights noted that in the United States, the US Supreme Court had taken
the position that the First Amendment, which protects freedom of speech and
peaceful assembly, does not prevent a private shopping centre owner from
prohibiting distribution on its premises of leaflets unrelated to its own
operations: Lloyd Corp v Tanner, 407 US 551 (1972). This did not, however, prevent state
constitutional provisions from adopting more expansive liberties than the
Federal Constitution to permit individuals reasonably to exercise free speech
and petition rights on the property of a privately owned shopping centre to
which the public was invited. This did
not, the European Court noted, violate the property rights of the shopping
centre owner so long as any restriction did not amount to taking without
compensation or contravene any other federal constitutional provisions:
Pruneyard Shopping Center v Robins 447 US 74 (1980), a case turning on the
California State Constitution.
35. Like Appleby, Pruneyard was a case involving
a privately owned shopping centre in California. The decision turned on the “more expansive
liberties” granted under California’s free speech clause, which goes beyond the
protection guaranteed under article 10 of the European Convention or article 19
of the ICCPR. That notwithstanding, in
the subsequent case of Golden Gateway Center v Golden Gateway Tenants Assn
(2001) 26 Cal 4th 1013 , the California Supreme Court refused to extend the
right to freedom of expression to activities within a privately owned apartment
complex. Distinguishing Pruneyard, the
California Supreme Court held that a tenancy association did not have a right
under the California Constitution to distribute a newsletter in a privately
owned apartment complex. The Court
stated that state action was necessary for a violation of the California free
speech clause but that no state action existed in the case because the
apartment complex was not fully open to the public. The Court stressed that in Pruneyard, the
shopping centre concerned was functionally equivalent to a “downtown or central
business district”, which is a traditional public forum. The public had been invited to “congregate
freely” in the centre, which had a “public character”. The Court concluded that private property
must be public in character before California’s free speech clause may apply,
and that under that clause a private property owner’s actions will constitute
state action only if the property is freely and openly accessible to the
public. On the facts, the Court noted
that the apartment complex did not allow general public access to the property
and the landlord employed security guards and doormen to limit access to residential
tenants and their invitees only. The
emphasis on privacy and security was clear in each lease. (See also William J Emanuel, Union
trespassers roam the corridors of California hospitals: Is a return to the rule
of law possible? (2009) 30(4) Whittier
LR 723–782.)
36. Like Golden Gateway Center, the present case
concerns purely private residential premises, and Pruneyard is wholly
distinguishable (not to mention that the California free speech clause involved
there is more expansive in scope). Indeed
when compared with Appleby, the position here is an a fortiori one. In the instant case, there is no question of
the private residential property performing the function of a town hall or
similar public or “quasi public” venue in which individuals may claim the right
to exercise their freedom of expression or assembly in a reasonable
manner. To the contrary, on the
evidence, the emphasis on privacy and security is plain. Nor is one concerned with commercial
premises, which are let to a government department or public authority for its
official use . What this case is
concerned with is purely private residential property. It is true that a high-ranking government
official resides within the premises.
However, in my view, that does not make any difference to the analysis,
because the premises are occupied by the high-ranking official as his private
residence. Moreover, the high-ranking
official here does not occupy the entire private residential development by
himself. As is common in Hong Kong, he
is just one of the many co-owners/co-occupiers in the several multi-storey
blocks comprising the residential development.
37. Furthermore, in the context of Hong Kong at
least, by the nature of things, it is next to impossible to imagine a situation
where not to permit entry to a private residential development to exercise the
right of assembly or the right to freedom of expression would be tantamount to
depriving those intending to exercise such rights of any opportunities to
exercise them in any meaningful manner, thereby amounting to an effective
denial of the rights. In Hong Kong,
opportunities to exercise those rights in public places, including the public
street that Shuk Yuen Building faces, are abound.
3.6 Cases concerning activities in public places
38. For these reasons, I do not consider the
cases cited to the Court by counsel for the defendants helpful to the present
discussion. Most of the authorities
cited concerned the exercise of the right of assembly and the right to freedom
of expression in public places or places of a “public character”. Thus the New Zealand case, Police v Beggs
[1999] 3 NZLR 615, heavily relied on by counsel, concerned a very different
situation from ours. The case involved a
protest by 300 students in Parliament grounds.
Their intention was to protest against possible changes to tertiary
education funding or structures. They
demanded that the Minister of Education address them from the steps of
Parliament. No specific permission had
been sought for the protest in Parliament grounds, but their entry onto the
grounds was not impeded. Subsequently,
they were told to leave by the Speaker’s staff, who had been delegated the task
of overseeing protests in the grounds.
They refused, and, after warning, were arrested by the police for
trespass. The New Zealand High Court, in
the course of judgment, made various observations on how the Speaker might
exercise his power to ask protesters to leave Parliament grounds, without
infringing the protesters’ relevant rights under the New Zealand Bill of
Rights. The Court applied the test of
reasonableness and discussed various considerations relevant to the application
of the test (pp 627-632).
39. In my view, Police v Beggs is a wholly
distinguishable case. In that case, one
was concerned with protesting in Parliament grounds, a natural public forum for
assembly and expression of opinion, rather than within the private residential
premises of private citizens. The
functions and duties of the government (including the executive and
legislature) were engaged, in addition to the State’s right and power as
landowner. Citizens’ rights vis-à-vis
that of their government’s in a democratic society were involved. In those circumstances, it is not surprising
that the Court would resort to the reasonableness test to resolve the conflicts
between different rights.
40. However, in the present case, one is
concerned with a private residential development. Private property rights are at stake. The premises are occupied entirely for
private residential premises. One is not
concerned with Government property or Legislative Council grounds (that are
generally open to the public), where one could with little restriction stage
protests and demonstrations.
41. In those circumstances, Police v Beggs is of
no assistance in the present context.
3.7 Debates over definition of “home”
42. Counsel for the defendants argue that in the
present case, one is concerned with the private driveway within the
development, rather than the flat in which Mr Suen resides. They contend that there is a distinction
between the common areas of a residential development and the flat of which a
resident enjoys exclusive right to possession and enjoyment. It is only the latter which qualifies as the
“home” of the resident, within the meaning of article 14(1) of the Hong Kong
Bill of Rights which protects against unlawful interference with one’s
“home”. Counsel refer the Court to
overseas cases on the meaning of a “home” in different contexts.
43. In this regard, I believe the correct
position has been summarised by Nowak, op cit, at p 399:
“3. Home
As
emphasized at the outset, the protection of home in the 19th century
represented the quintessence of bourgeois privacy. That which took place outside the private
home belonged to the area of public life and thus was subject to legal norms
and societal rules of conduct. Events
“within one’s own four walls” were, on the contrary, private, i.e., hidden,
secret from the public. Only there could
the individual pursue his or her self-realization in a manner corresponding to
his or her needs and desires. The word
“home” – or the British saying “my home is my castle” – also gives expression
to the correlation between protection of the home and the right of property, a
relationship essential for the bourgeois society of the 19th century, in which
the extent of private ownership determined the extent of individual
privacy. The various meanings associated
with the word “home” convey a feeling of familiarity, shelter and
security. In this manner, the home
symbolizes a place of refuge where one can develop and enjoy domestic peace,
harmony and warmth without fear of disturbance.
The
protection of the “home” (“domicile”) relates not only to dwellings in the true
sense but also to all types of houses regardless of legal title (ownership,
rental, leasing, etc.) or nature of use (main domicile, weekend house, garden
house, etc.). The borders of the home
run together with that area over which ownership (or any other legal title)
extends, i.e., also to the garage and garden.
Even a camping trailer or a house boat are covered by the protection of
Art. 17.” (emphasis added)
44. In my view, the fact that in Hong Kong, most
people live in buildings and developments that are under co-ownership does not
mean that the common areas within the land and buildings in question do not
form part of the “homes” of the co-owners and occupiers of those buildings and
land, for the purposes of protection of their privacy under article 14 of the
Hong Kong Bill of Rights. In my view,
their right to privacy must be given a generous interpretation.
45. In Brooker v Police [2007] 3 NZLR 91, the
Supreme Court of New Zealand had to consider a defendant’s purported exercise
of the right to freedom of expression guaranteed under the New Zealand Bill of
Rights on the grass verge of the public road facing a police constable’s house
with whom the defendant had a grudge. He
knew that the police constable had been on duty overnight and was resting in
her house. He had rung and knocked until
the constable open the door and told him to go away. He then retreated to the grass verge of the
public road where he sang songs in a normal singing voice and played his guitar
while displaying a placard referring to police conduct. He was arrested and was eventually charged
for disorderly behaviour.
46. On the facts of the case, the majority of the
Court found (McGrath and Thomas JJ dissenting), that the defendant’s conduct
could not be said to be disorderly.
Nonetheless, McGrath J, in a particular illuminating judgment, discussed
the inter-relationship between the freedom of expression and the protection of
privacy:
“[123] Privacy is “an aspect of human autonomy and dignity”. Although, as a police constable, the
complainant is a public official, in her private life she is entitled to
enjoyment of the rights of an ordinary citizen.
Her privacy interest in the present appeal is her right to be free from
unwanted physical intrusion into the privacy of her home. The desire of a
person to be free from unwanted physical access by others has been usefully contrasted
with a separate but overlapping category of privacy which is concerned with the
desire to be free from unwanted access to private information. The former aspect of the right to privacy is
recognised in art 17 of the International Covenant on Civil and Political
Rights,
…
[124]
Both aspects of privacy have also been recognized by the Courts. In Campbell [v MGN Ltd [2004] 2 AC 457] the
House of Lords dealt with the aspect of intrusion on informational privacy
which arises on the publication by the media of private facts about a
celebrity. Lord Nicholls observed [at
para 12]:
“The importance of freedom of
expression has been stressed often and eloquently, the importance of privacy
less so. But it, too, lies at the heart
of liberty in a modern state. A proper
degree of privacy is essential for the well-being and development of an
individual.”
[125] In
New Zealand two Judges of the Court of Appeal have recognised that there is a
physical aspect of privacy, although refraining from deciding whether it should
be protected by the tort of privacy. [Hosking v Runting [2005] 1 NZLR 1, para
118]
[126]
The Supreme Court of the United States has given strong recognition to the
importance of what Brennan J has described as “the right of an individual ‘to
be let alone’ in the privacy of the home”.
In delivering the majority opinion of the Court in Carey v Brown [447 US
455 (1980)], Brennan J said [at p 471] that:
“ Preserving
the sanctity of the home, the one retreat to which men and women can repair to
escape from the tribulations of their daily pursuits, is surely an important
value.”
He later
added:
“The State’s interest in
protecting the well-being, tranquility, and privacy of the home is certainly of
the highest order in a free and civilized society.”
[127] In
Frisby v Schultz [487 US 474 (1988)] O’Connor J, in delivering the Court’s
majority opinion, affirmed what the majority of the Supreme Court had said in
Carey and emphasised that an important aspect of residential privacy was
protection of the unwilling listener in her home [(at pp 484-485)]:
“Although in many locations, we
expect individuals simply to avoid speech they do not want to hear … the home
is different. ‘That we are often
“captives” outside the sanctuary of the home and subject to objectionable
speech … does not mean we must be captives everywhere.’ ... Instead, a special
benefit of the privacy all citizens enjoy within their own walls, which the
State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that
individuals are not required to welcome unwanted speech into their own homes
and that the government may protect this freedom.”
[128]
Despite the presumptive approach which gives strong protection to the right to
free speech in the United States, under the First Amendment it is now generally
recognised among members of the Supreme Court of the United States that there
is a legitimate government interest in residential privacy and in acting to
curtail freedom of expression to protect unwilling recipients from having to
receive unwanted expression of opinions in their homes.
[129] I
am satisfied that New Zealanders regard the right to enjoyment of domestic
tranquillity as highly as do citizens of the United States. It is part of the cultural and social make-up
of New Zealanders to be respectful of that environment. I regard the interest of New Zealand citizens
to be free from intrusions into their home environment, whether on account of
their conduct as public officials or otherwise, as a value that, in the
abstract, is close to being as compelling as freedom of speech.”
47. For our immediate purpose, the case is
important because it illustrates that the right to privacy at one’s home is not
only invaded by physical intrusion. It
may be invaded by actions taken outside the physical boundary of the home. On the facts, the singing took place at the
grass verge of the public road outside the constable’s house. This being the case, the debate over whether
the common areas within a private residential development form part of a
resident’s “home” in the development loses much of its significance.
48. In any event, Brooker v Police shows that our
present case is an a fortiori one. In
Brooker v Police, like the US cases concerning picketing of residences and dwellings
which McGrath J cited, the (alleged) interference with privacy took place
outside the boundary of the victim’s house.
In the present case, one is actually concerned with intrusion into
private residential property.
49. Unlike the police constable in Brooker v
Police, who occupied her own house, Mr Suen is just one of the many residents
in the residential development. While he
no doubt was and still is a high-ranking public official, many if not all of
his neighbours who lived in the same development at the time, and who were
affected by the intrusion of the petitioners into the development, were
not. Their rights, like the right of Mr
Suen, were also at stake.
50. But even more importantly, for the purposes
of the present debate, this argument regarding what constitutes a “home” is
quite irrelevant because apart from article 14 of the Hong Kong Bill of Rights,
we also have article 29 of the Basic Law which specifically goes beyond
“homes”. Article 29 specifically states
that “the homes and other premises of Hong Kong residents shall be
inviolable”. It prohibits “arbitrary or
unlawful search of, or intrusion into, a resident’s home or other premises”.
51. In other words, even if (for the sake of
argument only) common areas such as a driveway do not form part of one’s “home”
in a multi-ownership situation, they are nonetheless “other premises”, which
like one’s “home”, attract the protection of article 29 of the Basic Law.
3.8 Conclusion
52. I would respectfully borrow the words of the
European Court of Human Rights in Appleby, supra, at para 47, to conclude this
part of my judgment. In my view, in
Hong Kong, notwithstanding the acknowledged importance of the right of peaceful
assembly and the right to freedom of expression, neither the provisions in the
Basic Law nor those in the Hong Kong Bill of Rights bestow any freedom of forum
for the exercise of those rights. None
of the relevant provisions require the automatic creation of rights of entry to
private residential property.
53. In other words, the right of peaceful
assembly and the right to freedom of expression stop, so far as physical or
geographical limits are concerned, at the boundary of private residential
property belonging to others, in the absence of any permission to enter. (This is said, it should be noted, without
prejudice to any possible argument that in situations such as that found in
Brooker v Police, even activities carried out outside the physical boundary,
but within the immediate proximity, of private residential premises could,
depending on the facts, amount to an unlawful interference with the
constitutional right to privacy at home of the owner or occupier of the
premises.)
54. In the present type of situation, there is no
question of the restriction on the relevant rights not being prescribed by law
or being uncertain. The restriction is
well defined by property law as well as the law of trespass.
55. In my view, the Magistrate has, with
admirable clarity, come to the right legal conclusion in this regard.
4 Implied permission for the petitioners to
enter or remain? – ground 1(g) & (h)
56. However, as Nowak, op cit, at p 494, points
out, article 21 of the ICCPR protects assemblies on private property or in
private buildings to the same extent as on public streets, square or in public
assembly rooms; however, the prior approval of the owner is necessary for all
property and buildings not freely accessible to the public. This raises the question of whether the
petitioners in our case had the permission of the owners, residents or
management of Shuk Yuen Building to enter or remain in the residential
development to present the petition to Mr Suen or to stage any
demonstration. This is essentially a
question of fact. In relation to it, the
Magistrate made clear findings that the petitioners were all trespassers to the
development. He gave the following
reasons for his findings:
“19. It is a fact undisputed in the present case that the
demonstrators and petitioners in question were only able to assemble, display
banners and chant slogans outside the metal gate of Shuk Yuen Building at the
beginning since the metal gate was all the time closed. The metal gate was opened as a resident’s
vehicle returned to the housing estate.
The crowd took the opportunity and entered the estate. I have already stated clearly in the reasons
for decision of the application of the defence for no case to answer that the
authorization of the owners, residents or housekeepers concerned must be
obtained before any outsiders can enter a private housing estate to hold
certain activities. However, it is
obvious that the demonstrators and petitioners in question did not even have
the authorization to enter Shuk Yuen Building, even less the authorization to
assemble and demonstrate in the housing estate.
The reasoning is simple enough.
20. The caretaker (DW1 Mr Chan Yuk-cheong (陳旭昌)) who was on duty at the estate in question at the material time
clearly stated under cross-examination by Mr Pun that he did not anticipate the
demonstrators and petitioners outside the metal gate would take the opportunity
of the opening of the gate to enter the estate.
However, he was helpless and at his wits’ end as the crowd had already
entered. Under cross-examination by the
prosecution, Mr Chan stated that he did not want to open the gate at the
beginning. But the police asked him to
open the gate to let the vehicle drive in.
He also stated that as police were already there, his mind was at ease
to let the police deal with the situation then.
He would have called the police for assistance if there had been no
police. During the examination-in-chief,
Mr Chan said that he had told “Long Hair” (i.e. the 4th defendant) that they
could not enter as the said place was a private place. However, “Long Hair” asked him not to concern
himself in his own salary only, but also in the interest of the people at
large. After this conversation, Mr Chan
felt that he was helpless and went back to the caretaker booth and stationed
there. During cross-examination by the
prosecution, Mr Chan explained that apart from “Long Hair”, he did not know any
of the demonstrators or petitioners at the scene. He requested “Long Hair” to leave because he
appeared to be the leader and he hoped that “Long Hair” would lead the others
away. Obviously, Mr Chan, the caretaker,
was unwilling to let the crowd enter the housing estate and had expressed his
wish to the 4th defendant.
21. As to the 4th defendant, the disc, exhibit
D1, recorded that he had said the following to the crowd through the loudhailer
before 12:50:
(i) The Incorporated Owners said that we were
noisy!
(ii) The lady just now said that we caused
obstruction here.
Besides,
the video tape, exhibit P1, also recorded that the 4th defendant said the
following to the crowd through the loudhailer:
12:46 The police talked to the caretaker ...
what did the caretaker say, he told us to leave and ... He’s just a
caretaker. We need not care what the
caretaker said! ... The caretaker called the police, called once more .
I firmly
believe that through the open speaking of the 4th defendant, there was no
reason for the demonstrators and petitioners present at the scene not knowing
that at the least, the incorporated owners of the estate and a female resident
were resentful of their demonstration and petition activities within the area
of Shuk Yuen Building. And Mr Chan, the
caretaker, had also requested them to leave.
In fact, the crowd themselves knew it most clearly that by what means
they had entered the estate.
22. Based on the reasons given above, I rule that
all the demonstrators and petitioners in question (including the six
defendants) were trespassers. I also
firmly believe that the demonstrators and petitioners in question clearly knew
that they took advantage of the gap between the opening and closing of the gate
and seized the opportunity to enter the estate.
Their entry in fact had not been authorized. Furthermore, the crowd certainly had not been
authorized to hold the activities of demonstration and petition in the estate.
…” (Court translation)
57. At the hearing of the appeal, the Court was
referred to various parts of the transcript as well as the video and DVD
recordings, with a view to challenging or upholding the Magistrate’s findings
of fact. Having considered the evidence,
I am of the view that there was sufficient evidence to enable the Magistrate to
come to his findings. I see no
justification for interfering with the findings.
58. Before I leave this topic, I should mention
an argument raised by the defendants which has a bearing on the present
question as well as the point that the Magistrate has wrongly refused their
applications to call Mr Suen to testify at the trial. The defendants argue that there is no
evidence regarding Mr Suen’s attitude towards the petitioners. There is a lurking possibility or doubt that
he was willing to meet the petitioners and allow them in. The prosecution has simply failed to prove
that Mr Suen did not consent to the petitioners’ entering the development to
make a petition to him. On that basis,
the finding of trespass should be disturbed.
Alternatively, the defendants argue, Mr Suen may have been unaware of
the presence of the petitioners and one could not say that he would definitely
have refused to meet the petitioners within the development. The possibilities are endless, the defendants
submit. The defendants also point out
that a Sergeant Sze testified at trial that he had met with Mr Suen on the
morning of the day in question and had been told by Mr Suen that he did not
want to meet the petitioners. However,
his evidence was contradicted by the CCTV recording at the entrance to Mr
Suen’s block and even the prosecution asked the Magistrate not to believe
Sergeant Sze’s evidence.
59. The defendants’ argument must be
rejected. If Mr Suen was unaware of the
presence of the petitioners, there could be no question of his giving any
permission for the petitioners to enter the development. As for the possibility that he had actually
given permission for the petitioners to enter and to meet him within the
development, I believe this is a fanciful possibility that flies in the face of
the entire evidence. In fact, the
Magistrate made the same point in his reasons given for refusing one of the
applications by the defendants to call Mr Suen.
The reality is that the caretaker had been informed by the police at
around 10 am of the expected arrival of the petitioners. According to the caretaker, he told the
chauffeur of Mr Suen accordingly. The
petitioners arrived at the development entrance at 11:40 am. They entered the main gates at 12:05 pm and
the charging of the police cordon took place at 12:51 pm. After breaking through the police cordon, the
petitioners stayed at the ground floor entrance to Blocks C and D until 1:25 pm
when they left, after inserting a petition letter into Mr Suen’s letter box
located at the ground floor of the building.
Throughout, Mr Suen did not meet with the petitioners either personally
or through any representative. He only
left Shuk Yuen Building by car in the afternoon after the petitioners were all
gone.
60. In those circumstances, it is simply
unrealistic to suggest that it was Mr Suen’s intention to permit the
petitioners to come in and to accept their petition letter either personally or
through a representative.
61. Counsel for the defendants have cited to the
Court various cases to illustrate that permission to enter could be implied. I have no difficulty with the proposition so
far as it goes. But everything depends
on the facts, and the cases cited by counsel all turn on their own facts. For instance, in Faulkner v Willetts [1982]
RTR 159, which was heavily relied on by counsel, a constable went to the house
of a person, wishing to interview him in connection with a road accident in
which a car driven by him had been involved.
The constable identified himself to the person’s wife and informed her
of the reason for his visit. She opened
the door fully, walked back into the house, giving the constable the impression
that it was an implied invitation to follow her into the house, which he
did. No oral permission was given by the
person’s wife for the constable to enter the house, and at no time was an
indication, oral or otherwise, given refusing him entry. Inside the house, the constable identified
himself to the person and explained that he wished to interview him. The person took no steps to request the
constable to leave but offered him refreshment.
On those facts, the Court of Appeal took the view that the Magistrates’
Court was quite entitled to come to the conclusion that there was an invitation
to enter by conduct, and refused to interfere with the finding.
62. The case is wholly distinguishable from the
present case. Here, prior to the arrival
of the resident’s car, the main gates were closed for the entire 25 minutes
since the arrival of the petitioners at the entrance. The gates were only opened to allow the
resident’s car in. The petitioners
seized upon the opportunity to enter the development. In those circumstances, one could hardly say
that there was an invitation to enter by conduct. The caretaker’s inaction in not stopping the
petitioners from entering or in not asking them to leave was, in the
circumstances of the case, entirely understandable and could not have misled
the petitioners. For by then, the police
had, as the caretaker’s evidence shows, taken over the situation from the
caretaker.
63. In any event, from the caretaker’s
conversation with the 4th defendant, which the 4th defendant mentioned to all
those who were present, it is plain that no permission was given to the
petitioners to enter or remain in the development, let alone to go beyond the police
cordon then formed on the private driveway.
64. In the circumstances, there is no question of
the petitioners, in particular, the defendants, being under any mistaken belief
that they were permitted by the owners, residents or management to enter the
residential development, or put at the lowest, to go beyond the police cordon.
65. The defendants point out from the evidence
that the same concern group had been into Shuk Yuen Building three years ago to
“visit” Mr Suen during Chinese New Year.
On that occasion, they were not stopped by anybody and in fact,
according to some newspaper reports, a government spokesman was reported as
saying that there was no question of those present causing a nuisance to
anybody because they were exercising their constitutional rights there. The defendants argue that they therefore had
or thought that they had the implied permission to enter the development again.
66. I reject the argument. On the facts, and particularly, on the
evidence of the caretaker, it is plain that no permission, express or implied,
was given by anybody for the petitioners to enter the development on this
occasion. The previous occasion was so
far removed from the present one that it had no relevance at all. The caretaker had not even been employed to
work at the development then.
5 Were the police officers trespassers and
were they executing their duty inside the development – ground 1(f)?
67. I now consider the position of the police
officers who formed a human chain to prevent the petitioners from going further
down the driveway to approach the building where Mr Suen resided.
68. The petitioners, as mentioned, eventually
charged the cordon . According to the
Magistrate, by doing so, they turned their assembly into an unlawful one for
the purposes of section 18 of the Public Order Ordinance, and the six
defendants were therefore charged with and convicted of taking part in an
unlawful assembly.
69. It is the contention of the defendants that
not only were they not trespassers at the time, but the police officers were
themselves trespassers at the scene.
They were not acting in the execution of their duty when they tried to
prevent the petitioners from moving forward.
70. I have already come to the conclusion that
the Magistrate was right in finding that the petitioners were trespassers. I reject the defendants’ argument that the
police officers were trespassers.
Judging from the evidence available, and in particular the evidence of
the caretaker, the police officers were obviously at the scene (within the
residential development) with the permission of the caretaker. In this regard, as mentioned, permission need
not be oral, and can be implied from conduct.
On the evidence of the caretaker, it is plain that the police officers
were permitted impliedly by the caretaker to enter the residential development
in order to control the petitioners.
71. The defendants argue that even if the police
officers were not trespassers, they had no business to be inside the private
premises of citizens. In those
circumstances, they were not acting in the execution of their duty when they
formed the cordon and prevented the petitioners from moving down the
driveway. The defendants refer to
section 10 of the Police Force Ordinance (Cap 232) which sets out the duties of
the police force, and argue that the police officers’ action on private land on
the day in question did not fall within any of the provisions set out in the
section. The defendants remind the Court
that unlike the present position in the United Kingdom (see the Criminal
Justice and Public Order Act 1994), in Hong Kong trespassing is not a crime but
remains a civil wrong only, in relation to which the police, the defendants
argue, has no role to play.
72. I reject the argument. First, as Ms Anna Lai for the prosecution
correctly pointed out, a police officer’s duty is to be a keeper of the peace
and to take all necessary steps with that in view. If invited by the landowner, the police can
enter private premises to keep the peace, prevent crime or protect property
from criminal injury. Coffin v Smith
(1980) 71 Cr App R 221; Lewis v Prosser, unreported, Queen’s Bench Divisional
Court (Watkins LJ & Nolan J), CO/1150/83, 30 October 1984; Lamb v Director
of Public Prosecutions (1990) 154 JP 381. In particular, depending on the facts, even
though whilst at the premises the police officers were satisfied that there was
no breach or suspected breach of the peace, and that there was nothing in the
suspected troublemakers’ conduct which gave cause for concern, the police
officers could stay behind at the premises and take all necessary steps to
ensure that the suspected troublemakers peacefully left the premises (Lewis v
Prosser).
73. On the facts of the present case, the police
officers were entitled to take the view that there could be a breach of the
peace by the petitioners after their entry into the private property in the
manner they did. There was evidence
(PW3) to the effect that the police was apprehensive of the situation turning
volatile, particularly if Mr Suen were to refuse to see the petitioners, and it
was mindful of the safety of the people there, including elderly people and
children.
74. Moreover, just like the positive duty of the
government (including the police) to take reasonable and appropriate measures
to enable lawful demonstration to take place peacefully (Leung Kwok Hung v
HKSAR (2005) 8 HKCFAR 229), articles 6, 29 and 105 of the Basic Law and article
14 of the Hong Kong Bill of Rights would, in my view, require the government
(including the police) to take reasonable and appropriate measures to protect
Hong Kong residents’ homes and other premises against intrusion and their
privacy at home against interference, provided that the measures, if they are
to be taken within private premises, must be taken with the permission of their
owner or occupier. It would be a very
strange result if all the police is entitled to do is to prevent demonstrators
from entering private premises whilst they are still in a public place; but
once the demonstrators have managed to intrude into private premises without
the consent of their owner, the police can do nothing to restrain the
demonstrators even though it is permitted to enter or is indeed asked to enter
to repel or restrain the unwelcome demonstrators.
75. For those reasons, I am clearly of the view
that the police officers were executing their duty when they formed the human
chain to prevent the petitioners from moving down the driveway. In those circumstances, when the defendants
used force to charge the police cordon, they plainly behaved in a disorderly
manner likely to cause any person reasonably to fear that they would commit a
breach of the peace. Indeed, their
action amounted to a breach of the peace – see the definition of the term in R
v Howell (Errol) [1982] QB 416, 427E-F, quoted with approval by the House of
Lords in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2
AC 105, para 27:
“We are emboldened to say that
there is a breach of the peace whenever harm is actually done or is likely to
be done to a person or in his presence to his property or a person is in fear
of being so harmed through an assault, an affray, a riot, unlawful assembly or
other disturbance. It is for this breach
of the peace when done in his presence or the reasonable apprehension of it
taking place that a constable, or anyone else, may arrest an offender without
warrant.”
6 Positive duty and wrongful interference –
ground 1(b) & (i)
76. Then it is said by the defendants that the
police officers were acting in breach of their positive duty to take reasonable
and appropriate measures to enable their lawful assembly to take place. Rather, the police officers were guilty of
unlawfully interfering with their assembly and demonstration. It is argued that the police failed to
contact on behalf of the petitioners Mr Suen to see whether he would receive
the petitioners. Rather, the police
wrongfully interfered with their assembly by misleading the petitioners
regarding the true attitude of Mr Suen.
In particular, they rely on what the police officers told them at the
scene (namely, that the police was contacting Mr Suen for his response) and the
contradictory evidence given by Sergeant Sze in Court that in fact he had been
told by Mr Suen earlier on that he would not be meeting the petitioners.
77. Indeed the defendants argue that the police
had no justification at all to form the cordon on the driveway as there was no
reasonable apprehension of an imminent breach of the peace: see Laporte,
supra. The police was simply not
justified to interfere with the petitioners’ exercise of their right of
assembly and right to freedom of expression.
78. In my view, these arguments fall by the
wayside once it is concluded, as the Court has concluded, that the petitioners
had no right to hold any assembly within the private residential development in
the absence of permission. It must be
remembered that the positive duty on the part of the government and police that
the Court of Final Appeal spoke about in Leung Kwok Hung is a positive duty “to
take reasonable and appropriate measures to enable lawful assemblies to take
place peacefully” (my emphasis) (para 22).
As the petitioners had no right to assemble within the private
residential development without the necessary permission, there is no question
of the police owing to them any positive duty to assist them to hold the
assembly. Nor is there any question of
the police interfering with the petitioners’ right to assembly, which was not
exercisable within the private residential development in the absence of the
necessary permission.
7 Actus rea and mens rea – ground 3
79. Both Mr Poon and Miss Leung argue that there
was insufficient evidence to prove that their clients voluntarily took part in
charging the police cordon. They said
that on the video evidence in particular, there were doubts as to whether their
clients were simply pushed by others against the police line. Similar arguments are raised regarding their
mens rea.
80. Having watched the police video tape (exhibit
P1), I have no doubt that the Magistrate has made the correct findings against
the defendants. I regard the suggestion
that they were merely pushed forward by others involuntarily against the police
line as wholly fanciful. It is plain
from the circumstances that they were voluntary participants in charging the
police cordon. What action or method
they actually used to break through the cordon does not matter at all. Whether they used their arms and hands, the front
parts of their bodies or their backs to push against the police line is neither
here nor there. Nor would it make any
difference if they were merely standing passively there in front of the police
line, relying on others in the same group to push them against the line. The crucial question is whether they were
behaving in a “disorderly manner” which would likely to cause any person
reasonably to fear that they would commit a breach of the peace. I have already alluded to the definition of a
breach of the peace. In fact, several
policemen were injured in the whole incident.
81. The actions of the various defendants can be
seen from the police video tape, even when viewed at normal speed. I need not deal with the criticism made
against the Magistrate that he has on his own watched the video tape in slow
motion in order to identify the defendants and determine what they were doing
at the time when the police cordon was charged.
82. As regards the defendants’ mens rea, I cannot
do better than quote from the statement of findings:
“In my view, the crowd who had
taken part in the rush on the police line at the material time had the
intention to take part in the said “unlawful assembly” and to conduct
themselves in a disorderly manner. Even
though there were no comparatively clearer video recordings to show that the
3rd and 6th defendants had on their own initiative pushed and bumped against
the police officers forming the line of defence, they had not taken any
definite action to pull themselves out of the crowd either (like the old people
and children sitting on one side).
Therefore, the only reasonable inference is that they also had the
intention to take part in conducting themselves in a disorderly manner (ie
breaking through the police line). In
fact, every one who had taken part in the said “unlawful assembly” had the
chance to pull oneself definitely out of the crowd, who were confronting the
police, before the crowd’s rush on the police line. If he/she had not done so, his/her choice
testified fair and square to his/her intention.”
83. Charging a police cordon lawfully formed to
prevent people from moving beyond it is disorderly conduct.
8 “Self-help” – ground 2
84. It is suggested that when charging the police
cordon the defendants only used reasonable force. In this regard, Miss Leung relies on McBean v
Parker (1983) 147 JP 205, 207-208. This
“self-help” argument would only be relevant if the defendants were then
lawfully exercising their right of assembly and the right to freedom of
expression, and the police cordon was an unlawful interference with their
exercise of those rights. However, as
explained, this was not the case, and the argument of self-help simply has no
place in this case.
9 Refusals to summons Mr Suen – ground 4
85. Finally, the Magistrate is criticised for
refusing the defendants’ repeated applications to summons Mr Suen to give
evidence at the trial. I accept Ms Lai’s
argument that a magistrate may refuse to issue a witness summons unless he is
satisfied that the evidence which the intended witness is apparently able to
give is material to the issues in question and can be said to tend to support
the case of the party seeking to call the witness: R v Marylebone Magistrates’
Court, ex parte Gatting and Emburey (1990) 154 JP 549; R v Baines [1909] 1 KB
258.
86. It is suggested that Mr Suen’s evidence would
have been relevant to whether he had actually permitted the petitioners to
enter the development and whether he had been prepared to meet them personally
or by representative; whether he had told the police that he was not going to
see the petitioners (as per Sergeant Sze’s evidence); whether the police had
otherwise contacted him for his response towards the petitioners’ requests; and
various miscellaneous matters.
87. As discussed above, on the evidence of the
present case, it is a fanciful possibility that Mr Suen was prepared to allow
the petitioners in so that he could meet them either personally or through a
representative. Coupled with the finding
that the petitioners were actually trespassers and had no right to assemble
within the residential development, the other matters on which Mr Suen is said
to have been able to give material evidence were simply irrelevant to the
issues that the Magistrate had to decide, for the reasons set out above.
88. In the circumstances, the complaint against
the Magistrate’s refusals to issue a witness summons to Mr Suen is wholly
misplaced.
10 Outcome
89. For all these reasons, the appeals are
dismissed.
(Andrew
Cheung)
Judge of
the Court of First Instance
High
Court
Mr
Hectar Pun and Miss Katherine Chan, instructed by Ho, Tse, Wai & Partners,
for the 1st, 3rd and 6th appellants
Miss
Annie Leung, instructed by Rowdget W Young & Co, for the 2nd and 5th
appellants
Mr Leung
Kwok Hung, the 4th appellant, appearing in person
Ms Anna
Lai, SPP and Mr Derek Lai, SPP, of the Department of Justice, for the
respondent
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