雖然陳巧文被判敗訴,但法官張舉能特彆強調,「香港是法治地方,絶不容暴徒當道,今次判決絶非表示反對陳的人做得對,相反他們阻止別人表達意見,其幾近暴力模式必須受到譴責,社會只會容許理性和平的反對聲音」。
官﹕暴力阻示威必須譴責
高院昨下令敗訴的陳巧文要支付訟費,但記者昨至截稿前仍未能聯絡陳。警方則歡迎法庭裁決。
去年5月2日,奧運聖火在港傳遞至尖沙嘴彌敦道期間,港大二年級生陳巧文聯同幾名同伴,手持雪山獅子旗在柏麗大道示威,令在場數百名觀看聖火的 途人大為不滿,有人以手上的五星旗攻擊其雪山獅子旗,有人甚至要搶走她的旗幟,場面一度混亂。警方最後以陳的安全為由,將她抬上警車,並駛到油麻地警署扣 留45分鐘後才放行。
陳巧文其後申請司法覆核,指警方的行為剝削她們少數人和平示威的權利,違反《基本法》賦予的言論自由、免被不合法拘留及自由行動的條文。
警無力將干擾陳巧文市民全帶走
張官昨頒下判辭,指當警方預料將會有不和諧事件發生前,有責任對付滋事者,即影響陳巧文和平示威的群衆,但當時街上人潮擁擠,向陳喝倒彩的人上百計,警方雖已增強警力,但仍無可能將干擾陳的人一一拘捕。在沒有其他方法下,只有例外地將陳巧文帶走,平息可能引起的混亂。
張官又指出,本案另一特別處,是當日全港均對百年一遇的奧運感到情緒高漲,即使法庭無意評論藏獨問題或雪山獅子旗的意義,但在當時的情 看來,群衆想必然對旗幟及陳的行為反感;即使陳本人在示威前,亦接過網上死亡恐嚇。故陳不可能不知示威行為會挑釁群衆,若陳指自己無意挑釁途人、絶對是無 辜,應受警方保護而非被抬走,張官認為只是「捉字虱」。
【案件編號:HCAL139/08】
Chan Hau Man, Christina v
Commissioner of Police - [2009] HKCU 1230
Court of First Instance — Hon A Cheung J in Court — HCAL 139/2008 — 21 August 2009
Posted by Daily Cases:
Police and Emergency
Services — Police force — Duty to keep the peace — Preventing imminent breach
of the peace Removal of protestors from scene of demonstration — Conduct of counter-demonstrators — Whether action unnecessary
prevented exercising of right to hold peaceful demonstration — Whether reasonably necessary and proportionate — Whether there was advance
preparations
Mr Paul Harris SC and Mr Hectar Pun, instructed
by Vidler & Co, for the applicant
Mr Gerard McCoy SC, instructed by, and Ms
Vinci Lam, SPP, of, the Department of Justice, for the respondent
A Cheung J
Introduction
[1] The 2008 Summer Olympics
torch relay was run from 24 March until 8 August 2008, the opening day of the
Olympic Games hosted in Beijing. The torch followed a relay route which passed
through six continents and many cities. Hong Kong was one of them. The torch
arrived in Hong Kong on 30 April 2008. The launching ceremony of the Hong Kong
leg was to take place at the Hong Kong Cultural Centre on the morning of 2 May
2008, and the actual torch relay was to start immediately following the
launching ceremony. It was to start at the Yau Tsim District where the torch
would be carried on foot by selected torchbearers. The relay route there
covered approximately 2,000 metres with 11 torch relay handover points, from
the Hong Kong Cultural Centre via the Star Ferry Clock Tower, along Salisbury
Road, up Nathan Road to the Austin Road junction with Canton Road, where the
torch was to be taken by vehicle to New Territories South region. High profile
torchbearers, including pop singers and movie stars, were to be involved.
[2] The applicant, a
post-graduate student at the University of Hong Kong, together with 8 other
people, were demonstrators at the torch relay. They held their protest
demonstration at a location near Park Lane, Nos 111 to 139, Nathan Road, Tsim
Sha Tsui. The purpose of their demonstration was "to raise public
awareness of human rights and civil liberties issues in Mainland China, the
Tibetan region, and particularly the Tibetan people’s right to
self-determination". The applicant and her fellow demonstrators used a
"Snow Mountain Lion" flag, banners and placards for demonstration
purposes. The flag, so the Court has been informed by Mr Paul Harris SC (Mr
Hectar Pun with him) for the applicant, is the flag of the "Tibetan
Government in exile" based in Northern India.
[3] The torch relay
attracted tens of thousands of people who literally filled the two sides of
Nathan Road where the torch relay was to go past. It is fair to say that most
of them were exulting and celebrating the fact that their country had the
Olympic Games. Their emotions, according to the evidence, were particularly
fuelled by the sometimes mixed reactions that the torch relay had received in
the overseas legs, where protests and even disruptive incidents took place.
These incidents were interpreted, at least by some, on the Mainland and in Hong
Kong as "anti-China" in nature. It is also fair to say that many of
those who turned up on 2 May to witness the torch relay in Hong Kong, the first
leg to be held on Chinese soil, wanted to express their wholehearted support
for the holding of the Olympic Games in China and their best wishes that the
Games would be a success. A great deal of national pride, patriotism, strong
emotions and feelings were involved.
[4] It is under those very
peculiar circumstances that the applicant’s "Free Tibet"
protest demonstration on the torch relay day was met with hostile reactions.
Indeed even prior to the relay day, after the applicant’s plan to hold the
demonstration had been revealed in the media, anonymous threats had been made
against the applicant by people who were obviously offended by the applicant’s proposed demonstration or cause. And on 2 May, starting from around
6:30 am when the applicant and a fellow demonstrator first arrived at the
location of demonstration and continuing until shortly before the torch relay
was to commence (10:30 am), the applicant and her fellow demonstrators were met
with an increasing number of counter-demonstrators. Many of these
counter-demonstrators were waving Chinese national flags, singing the National
Anthem and shouting slogans, which were designed to drown out the applicant’s demonstration. Moreover, they shouted abuses at the demonstrators
(particularly the applicant), calling them names such as "traitors"
and "running dogs". Some used their national flags to hit the Snow
Mountain Lion flag carried by the applicant or her fellow demonstrators. The
police present had to form a "protective bubble" to separate the
demonstrators and counter-demonstrators, so as to protect the safety of the
applicant and her fellow demonstrators. As the start of the torch relay got
nearer, more and more counter-demonstrators were gathering around the applicant
and her fellow demonstrators, whilst the pedestrian pavements on the two sides
of Nathan Road were filled to full capacity with high-spirited on-lookers who
were there to wait for and cheer alongside the torch bearers. Estimates of the
number of counter-demonstrators varied from at least one hundred to several
hundreds at the highest. There were also present tens of reporters and media
people, including overseas media, who were more than eager to cover the
confrontation and to interview the applicant and her group.
[5] Police reinforcements
were sent to separate the applicant and her fellow demonstrators from the
counter-demonstrators who were ever increasing in number. But the situation,
according to the police, simply deteriorated. At one stage, an irate
counter-demonstrator attempted to grab the Snow Mountain Lion flag from the applicant.
He was intercepted by the police.
[6] Eventually, at around
9:50 am, a decision was made by the responsible police officer, a Senior
Superintendent of Police, positioned inside the Yau Tsim District Control Room
with a command responsibility for the event, to remove the applicant and her
group from the scene of protest to a safe spot. It was felt that there was an
imminent danger of a breach of the peace. It was decided that the applicant and
her fellow demonstrators had to be removed from the scene for the sake of their
safety as well as the safety of others present, including the police officers
protecting them from the counter-demonstrators.
[7] It was in those
circumstances that the police led the applicant and her group from where they
were into a buffer area (clear zone), with a view to driving them away in a
police van to a point of safety. The buffer zone was formed by cordoning off a
strip of the pedestrian pavement along Nathan Road by metal barriers. The
distance between the metal barriers and the raised flowerbeds that line the
pedestrian pavement of that part of Nathan Road was about 3 to 4 feet. The
clear zone was established to prevent members of the public from having access
to the road where the torch relay would take place and to ensure the police
could move freely alongside the relay route to conduct crowd management. Once
inside the buffer zone, the applicant continued with her demonstration. At one
stage, she stood on a raised flowerbed to demonstrate. According to the police
evidence, her actions and demeanour further irritated the counter-demonstrators
who kept pushing forward in a manner likely to overturn the metal barriers,
shouting abusive words at the applicant. The metal barriers were kept from
falling by police officers standing within the zone to keep them in position.
In the meantime, a number of reporters succeeded in getting inside the buffer
zone and some of them even managed to interview the applicant while she was
within the zone. It is the applicant’s case that her flag and a placard she used for
demonstration purpose were forcibly taken away from her by the police and she
was pressed to the ground when she tried to carry on with her demonstration
while within the clear zone. Eventually, a police van arrived, and against
their wishes, the applicant and her fellow demonstrators were taken inside the
van and driven away from Tsim Sha Tsui to a designated police station, namely
Yau Ma Tei Police Station. That was around 10:20 am, 10 minutes before the
torch relay was due to start.
[8] The applicant and her
group spent about an hour in the police station and eventually left at around
11:45 am.
[9] The applicant carried on
with her demonstration on the afternoon of the same day. She went to Central
near the LegCo Building which the torch relay was to go past, and carried on
with her "Free Tibet" demonstration there. With the protection of the
police, this time she and her fellow demonstrators managed to carry out their
demonstration without further incident. According to the police, after the
demonstration the applicant expressed to the police concern about her own
safety if she were to walk past "pro-China" groups to take public
transport. She agreed to go on board a police vehicle which drove her to
Western Police Station where she got off and left.
Application for judicial
review
[10] In these proceedings,
the applicant challenges "the decision of the Commissioner of Police by
his officers to prevent [her] from exercising her constitutional right to hold
a peaceful demonstration near Park Lane, Nos 111 to 139, Nathan Road, Tsim Sha
Tsui on 2 May 2008 on the occasion of the passage along Nathan Road of the
Olympic Torch Relay".
[11] Her case is
straightforward. The applicant rightly contends that under article 27 of the
Basic Law, she, as a Hong Kong resident, has freedom of speech and enjoys
freedom of assembly and of demonstration. Article 28 says that no Hong Kong
resident shall be subjected to arbitrary or unlawful arrest, detention or
imprisonment. Article 31 provides that she, as a Hong Kong resident, has
freedom of movement within the Hong Kong Special Administrative Region. Similar
rights are guaranteed under articles 5, 8, 16, 17 and 22 of the Hong Kong Bill
of Rights. Essentially, the applicant maintains that her right to free speech
and right to demonstration have been infringed. She has been subjected to
unlawful arrest or detention, and her freedom of movement has been unlawfully
curtailed.
[12] Mr Harris for the
applicant accepts that these rights and freedoms are not absolute, but as they
are fundamental rights, they must be given a generous interpretation so as to
give individuals their full measure, whereas restrictions on these fundamental
rights must be narrowly interpreted. The burden is on the Government to justify
any restriction. Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 , 248, para 16.
[13] Mr Harris submits that
the applicant’s demonstration has been peaceful, static and
lawful, the demonstration was not directed at anybody present and it was non-violent.
Although many may disagree with her cause and may even find it to be
objectionable, it does not give them a right to use violence or other means to
interfere with her demonstration. Still less does it give the police a right to
stop the applicant and her fellow demonstrators, as opposed to the
counter-demonstrators, from exercising their lawful right to demonstrate. The
police have simply directed their efforts at the wrong target.
Right to demonstration and
duty to keep the peace
[14] The law on the right to
demonstration has been settled by the Court of Final Appeal decision in Leung
Kwok Hung, supra . The right of peaceful assembly involves a positive duty on
the part of the Government to take reasonable and appropriate measures to
enable lawful assemblies to take place peacefully. It is not an absolute
obligation because the Government cannot guarantee that lawful assemblies will
proceed peacefully and "it has a wide discretion in the choice of the
measures to be used". What are reasonable and appropriate measures must
depend on all the circumstances in the particular case. Para 22 at p 249. Where
appropriate, these circumstances would include Hong Kong’s density of population and its relatively narrow streets and roads in
urban areas. Para 23 at p 250. A demonstration may give offence to those with
opposing views and demonstrators must be able to proceed without fear of
physical violence by opponents; such a fear would have a deterrent effect. In a
democracy, the right to counter-demonstrate cannot extend to inhibit the
exercise of the right to demonstrate. Para 24 at p 250.
[15] Alongside these
constitutional rights to freedom of speech and freedom of demonstration, which
carry with them the positive duty on the part of the Government to take
measures to enable lawful assemblies to take place peacefully, is the police’s duty to keep the peace. Indeed, section 10(a), (c), (e) and (g) of the
expressly provide that the duties of the police force shall be to take lawful
measures for preserving the public peace, preventing injury to life and
property, regulating assemblies in public places and preserving order in public
places. It is self-evident that these are also important matters involving
directly or indirectly the constitutional and other rights of members of the
public.
[16] Striking the right
balance between the Government/police’s duty to take reasonable and appropriate measures
to enable lawful assemblies to take place peacefully and the duty to preserve
the public peace (and other ancillary matters) is no straightforward matter,
and lies at the heart of this case. As the facts of this case demonstrate, this
is by no means an easy task. Indeed, it is an unenviable and thankless one.
Laporte and Austin
[17] In this regard, Mr Harris
has referred the Court to a number of authorities, with a view to illustrating
the limits of the police’s power in terms of keeping the public peace. They
include Beatty v Gillbanks (1882) 9 QBD 308 (a well-known case involving the
march of the procession of the Salvation Army and the counter-march of the
"Skeleton Army" procession); Redmond-Bate v Director of Public
Prosecutions [1999] 163 JP 789 (concerning a woman preaching from the steps of
Wakefield Cathedral) and Plattform ‘Ärzte für das Leben’ v Austria (1991) 13 EHRR 204 (anti-abortion
demonstrations and disruption attempts by pro-abortionist groups). As relevant
as these authorities are to the issues under discussion, they must be read
subject to the latest cases of R (Laporte) v Chief Constable of Gloucestershire
Constabulary [2007] 2 AC 105 and Austin v Commissioner of Police of the
Metropolis [2008] QB 660 (CA) and [2009] 2 WLR 372 (HL), to which Mr Gerard
McCoy SC (Ms Vinci Lam with him), for the respondent, has very helpfully drawn
the Court’s attention.
[18] In Laporte , the claimant
was a passenger on a coach travelling from London to a protest demonstration at
an airbase in Gloucestershire. The defendant chief constable had information
that passengers on three coaches from London (including the one the claimant
was riding on) were likely to cause a breach of the peace at the demonstration.
Police officers were therefore instructed to intercept the coaches before they
reached their destination to search the coaches and the passengers. The
constable also directed that they were not to be arrested at that particular
time to prevent a breach of the peace which he did not consider then to be
imminent. After their search, the police officers concluded that some, but not
all, of the passengers intended to cause a breach of the peace at the
demonstration. The claimant was not one of those with such intention. The
officers ordered all passengers to return to the coaches and the police
escorted the coaches back to London so as to prevent any passengers from
disembarking until they arrived there. The claimant contended in judicial
review proceedings that the defendant’s actions constituted unlawful interference with
the exercise of her rights of freedom of expression and assembly protected by
articles 10 and 11 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms.
[19] The House of Lords decided
the case against the chief constable on the ground that he himself did not
consider that a breach of the peace was imminent when he ordered the coaches
back to London. The Law Lords made important observations, albeit not strictly
required for deciding the case, on the scope of the police power to prevent a
breach of the peace.
[20] In the subsequent case of
Austin , a large group of demonstrators, some but not all of whom were violent
and disorderly, converged on Oxford Circus. The police had been aware that a
protest demonstration was planned, but its organisers had refused to co-operate
with the police or to inform them in advance of the plans. The police therefore
imposed a cordon around the area to enclose thousands of people who could leave
only with their permission. The first claimant was a demonstrator while the
second claimant was on his business for his employer when he got caught up in
the demonstration. Both were detained for many hours having been refused
permission to leave. They brought claims against the Commissioner of Police for
damages for false imprisonment and for breach of their rights to liberty
guaranteed by article 5 of the European Convention. They failed at first
instance and their appeals to the Court of Appeal were dismissed. Applying the
obiter observations made in the earlier case of Laporte by the House of Lords,
the Court of Appeal decided the appeals by reference to the circumstances under
which the police could, for the purpose of preventing an imminent breach of
public peace, take preventive steps that would have the effect of interfering
with the freedom and liberty of innocent people. Dissatisfied with the Court of
Appeal’s decision, the first claimant took her case to the House of Lords. The
only issue raised before the House of Lords was whether the fundamental right
granted under article 5 of the Convention could be curtailed in the interests
of public safety or the protection of public order. The appeal did not deal
with the question of the police power to take preventive measures against a
threatened breach of the peace. The Court has been given to understand that the
case has been taken to the European Court of Human Rights for final
adjudication. For our present purposes, the Court of Appeal’s judgment (given by Sir Anthony Clarke (now Lord Clarke) MR, for the
Court) is the more relevant judgment.
Legal principles on the power and
duty to keep the peace
[21] It would unnecessarily
burden this judgment by quoting extensively from these leading cases. Rather,
basing myself on these cases, I would attempt to summarise what I perceive to
be the applicable principles in the type of situation under discussion.
[22] It is convenient to start
with the concept of a breach of the peace. 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: R v Howell
(Errol) [1982] QB 416 , 427E; Laporte , at p 123, para 27.
[23] Every constable enjoys the
power and is subject to a duty to seek to prevent, by arrest or other action
short of arrest, any breach of the peace occurring in his presence.
Importantly, that power and duty extend to any breach of the peace which
(having occurred) is likely to be renewed, or any breach of the peace which is
about to occur. Laporte , at p 124, para 29. In this context, "about to
occur" is determined by the test of "imminence", not
reasonableness. Laporte , at pp 124 (para 30), 134-135 (para 62), 136 (para
66), 147 (para 101), 152 (para 114) and 160-161 (para 141).
[24] The power and duty to
prevent any breach of the peace occurring in his presence, or any breach of the
peace which is likely to be renewed, or any breach of the peace which is about
to occur apply not only to every constable, but also to every citizen. Albert v
Lavin [1982] AC 546 (an off-duty constable taking pre-emptive action to prevent
an imminent breach of the peace caused by a defendant who had jumped a bus
queue). The corollary of the duty on the part of a citizen to seek to prevent a
breach of the peace is that where necessary, a police officer is entitled to
call upon a citizen for his or her active assistance in suppressing a breach of
the peace. If, without any lawful excuse, he or she refuses to give it, the
citizen is guilty of an offence. Archbold Hong Kong 2009 , para 20-306; Laporte
, at pp 141 to 142 (para 83).
[25] If a police officer (or
indeed any citizen) reasonably apprehends that a breach of the peace is
"imminent" (or "about to occur"), his duty is to take
reasonable steps to prevent it. And once that stage is reached, but not before,
all the various options – arrest and detention, restraint, warning, etc – become available and the officer can choose the option or combination
of options that best fits the circumstances. Laporte , at pp 134-135 (para 62)
and 136 (para 66).
[26] The requirement of
"imminent" means that the event must be going to happen in the near
future. This does not mean, however, that the police officer must be able to
say that the breach is going to happen in the next few seconds or next few
minutes. That would be an impossible standard to meet, since a police officer
will rarely be able to predict just when violence will break out. The protagonists
may take longer than expected to resort to violence or it may flare up
remarkably quickly. There is no need for the police officer to wait until the
opposing groups "hove in sight" before taking action. That would be
"to turn every intervention into an exercise in crisis management".
Laporte , at p 137 (para 69). The court must guard against the danger of
hindsight, and the judgment of the officer on the spot, in the exigency of the
moment, deserves respect. Laporte , at pp 132 (para 55) and 149 (para 106).
[27] Prima facie, the steps to be
taken to prevent a breach of the peace should be directed against those who are
about to breach it. However, the law allows a police officer to take steps, not
against those who are about to breach the peace, but against others who are
not, in exceptional circumstances. These exceptional circumstances have been
classified differently into two or three categories.
[28] First, where the imminent
breach of the peace by others is provoked or otherwise caused by a person, whose
action is not only deliberate, but also interferes with the rights or liberties
of others, as is likely to provoke violence. Laporte , at p 162 (para 145).
[29] Secondly, a police officer
is entitled to take action to prevent an imminent breach of the peace by others
if their action is provoked or otherwise caused by a person whose conduct,
though technically lawful or not involving any interference with the rights or
liberties of others as such, is nonetheless "outrageous" (Laporte ,
at p 139, para 75), "unreasonable" (Laporte , at p 154, para 120) or
"provocative" (Laporte , at p 145, para 96 and at pp 162-163, para
146).
[30] The demarcation between
these two categories of exceptional circumstances is not entirely clear, and
the classification of cases into these two different categories is not uniform.
Nonetheless, under either of them, the law permits a police officer to take
action to prevent an imminent breach of the peace against somebody other than
those who are about to breach the peace. Cases falling within these two
categories include Wise v Dunning [1902] 1 KB 167 (making gestures highly
insulting to Roman Catholic Liverpudlians); Humphries v Connor (1864) 17 ICLR 1
(it was a valid defence to an action for assault against a constable for removing
from the plaintiff a party emblem consisting of an orange lily that the
plaintiff was wearing when walking through the streets of Swanlinbar, Co Cavan,
which was calculated and tended to provoke animosity on the part of some
Irishmen); Albert v Lavin, supra (jumping a bus queue); Nicol v Director of
Public Prosecutions (1995) 160 JP 155 (disruption of an angling competition);
Steel v United Kingdom (1998) 28 EHRR 603 (disruption of a grouse shoot and
invasion of a motorway construction site) and Chorherr v Austria (1993) 17 EHRR
358 (two demonstrators, with large placards affixed to their rucksacks
proclaiming "Austria needs no fighter plane" blocking the view of,
and arousing increasingly loud protest from, spectators of a march past).
[31] Thirdly, the law allows and
indeed requires, as a matter of necessity, a police officer to take steps that
are reasonably necessary to prevent a breach of the peace that is imminent
against a citizen who is not about to breach the peace and who does not fall within
the previous two categories, if the police officer reasonably believes that
there are no other means whatsoever to prevent the imminent breach of the
peace, even though to do so would entail curtailment of the lawful exercise by
the citizen of his fundamental rights, such as the right to demonstration or
the right to liberty. Laporte , at pp 139 to 142 (paras 78 to 84), at pp 146 to
147 (para 98), at pp 155 to 157 (paras 123 to 128) and at pp 163 to 164 (paras
147 and 148); Austin (CA), supra , at pp 676 to 683, paras 23 to 45,
particularly paras 35 and 43.
[32] In this last category of
cases, it cannot be over emphasised that wherever possible, the focus of
preventive action should be on those about to act disruptively, not on innocent
third parties. Laporte , at p 164, para 149. In order to resort to this last
category of exceptional power, the police must have made proper and advance
preparations to deal with the breach in question and cannot rely on an imminent
breach of the peace caused by their own failure to make such preparations to
justify taking steps against innocent third parties. The action that may be
taken must be reasonably necessary and proportionate. Austin (CA), supra , at
pp 680 to 681, para 35.
[33] In relation to this last
category, this is how the Court of Appeal in Austin has distilled the relevant
principles from the obiter observations made by the House of Lords in Laporte
which the Court of Appeal has applied to the facts in Austin (at pp 680-681 and
683):
"35. As we read the speeches of Lord
Rodger and Lord Brown they give some support for the following propositions:
(i) where a breach of the peace is taking place, or is reasonably thought to be
imminent, before the police can take any steps which interfere with or curtail in
any way the lawful exercise of rights by innocent third parties they must
ensure that they have taken all other possible steps to ensure that the breach,
or imminent breach, is obviated and that the rights of innocent third parties
are protected; (ii) the taking of all other possible steps includes (where
practicable), but is not limited to, ensuring that proper and advance
preparations have been made to deal with such a breach, since failure to take
such steps will render interference with the rights of innocent third parties
unjustified or unjustifiable; but (iii) where (and only where) there is a
reasonable belief that there are no other means whatsoever whereby a breach or
imminent breach of the peace can be obviated, the lawful exercise by third parties
of their rights may be curtailed by the police; (iv) this is a test of
necessity which it is to be expected can only be justified in truly extreme and
exceptional circumstances; and (v) the action taken must be both reasonably
necessary and proportionate.
36. While it cannot we think be said that
Lord Mance expressly supports those propositions, they seem to us to be
consistent with his views. They are not inconsistent with the speech of Lord
Carswell and Lord Bingham did not address these questions at all.
…
43. In these circumstances we read Lord
Rodger, Lord Brown and Lord Mance as being of the view that the approach
identified in the five propositions set out at para 35 above is not
inconsistent with the Strasbourg jurisprudence. They are in our opinion
consistent with it. Moreover, provided that it is recognised, as their
Lordships each did, that the primary focus should be on the wrongdoers and not
innocent demonstrators or those who are not demonstrators but are present by
chance, and that, save in a case of absolute necessity, the right of freedom of
expression under article 10 and the freedom of assembly and association under
article 11 must be protected, the propositions seem to us to represent a fair
and reasonable balance between the interests of all those involved."
[34] Thus far I have been
describing the law from the perspective of the common law. Where the police
action involves curtailment of an individual’s constitutional rights, such as
the right to demonstrate and the right to liberty, the proportionality test
applies. See, for instance, Leung Kwok Hung , supra , at pp 252-254, paras
33-38. Legitimate aim would seldom feature in applying the test because prevention
of an imminent breach of the peace must be a legitimate aim. The question
always lies in whether the action, if warranted to be taken in the first place,
is no more than is reasonably necessary and is proportionate. If the third
party is himself (culpably) responsible for the imminent breach of the peace in
the first place (ie the first two categories discussed above), that would
certainly colour to a significant extent the application of the test. After
all, article 42, the last article in Chapter III of the Basic Law which sets
out the fundamental rights and duties of the residents, specifically requires
residents and others in Hong Kong to abide by the laws in force in the Hong
Kong Special Administrative Region. If, on the other hand, the third party is
an innocent one (ie the third category), the requirement under the
proportionality test that the restriction must be no more than is necessary and
proportionate accords with the common law’s own requirement that the steps
that a police officer may take must be reasonably necessary and proportionate
to prevent the breach of the peace.
[35] Human rights law
additionally requires that the power to take steps must be "prescribed by
law". This requirement is reflected in our jurisdiction in article 39(2)
of the Basic Law which provides that the rights and freedoms enjoyed by Hong
Kong residents shall not be restricted "unless as prescribed by law".
I will return to this matter later. For present purposes, I need only point out
that the European Court has held that the common law concept of "a breach
of the peace" is sufficiently certain to meet the requirement of
"prescribed by law": Steel v United Kingdom, supra .
[36] For the sake of
completeness, I should add that the police failed at the first hurdle in
Laporte in its attempt to justify its action of turning back the coaches to
London for the short reason that the chief constable in charge of the operation
did not in fact feel that an imminent breach of the peace was about to take
place when the order was given to turn the coaches back to London. On the other
hand, in Austin , the Court of Appeal found that the police were justified to
impose a cordon around the small area in Oxford Circus enclosing thousands of
demonstrators and innocent passers-by because an imminent breach of the peace
was reasonably believed and the police reasonably believed that there were no
other means whatsoever to prevent the imminent breach, they having ensured that
proper and advance preparations had been made to deal with such a breach.
Facts and evidence in present
case
[37] I now apply these principles
of law to the facts of the present case. The applicant herself has filed three
affirmations. The first two were filed to verify the facts alleged in the Form
86A and the amended Form 86A. The third one was filed in reply to the evidence
filed by the Commissioner. On behalf of the Commissioner, no less than 16
affidavits or affirmations have been filed. The deponents were all police
officers involved directly in the events under consideration.
[38] Although there are various
areas of fact in which there are disagreements, the applicant has chosen not to
apply for leave to cross-examine the Commissioner’s deponents. This is because
most, if not all, of these disagreements are not material to the real issues
between the parties, and the applicant, through Mr Harris, has been quite
prepared to prosecute her challenge on the basis of the evidence proffered on
behalf of the Commissioner. It is on that basis that I will proceed to apply
the legal principles to the facts of the present case.
An imminent breach of the peace
[39] The first real issue here is
whether the police reasonably believed that there was an imminent breach of the
peace when they decided to remove the applicant (and her fellow demonstrators)
from the scene. The decision to remove was implemented by, first of all,
herding the group of demonstrators from where they were to inside the buffer
zone. According to the evidence which I accept, taking them to the buffer zone
was only meant to be a transitional step, because the buffer zone was never
intended to be used by demonstrators in the first place. The aim of taking them
to the buffer zone was to remove them from the scene altogether by employing a
police van which was nearby.
[40] The police officers who
filed evidence on behalf of the Commissioner were of one voice. They all said
that there was an imminent breach of the peace. They gave vivid descriptions of
the situation on the ground. Thus Chief Police Inspector Tommy Tang described
in his affirmation dated 9 February 2009 the following scenes:
"6. The red T-shirt people reacted
differently. Some of them appeared frustrated but many others were angry. I
heard one or two of them blame the Applicant for stirring up trouble and
provoking the emotion of the crowd at a time when they were celebrating the
Olympic event. It did not take longfor them to turn hostile towards the
Applicant’s group. They scolded and blamed the Applicant and her associates for
being anti-China. More and more red T-shirts joined in and among them were two
who spoke Putonghua. They acted aggressively towards the Applicant’s group. Police officers stepped in to calm them down. I kept reporting
the situation to DCR. Many police officers were deployed to assist in the
protection of the Applicant as over the two and a half hours from around 07:15
hrs to 09:45 hrs, the increase in the number of pro-torch relay supporters and
pro-China supporters had drastically increased to such as extent that movement
on the pavement area was virtually impossible. The Applicant’s group was essentially hemmed in by this crowd whose emotions were
growing stronger and stronger as the time neared the commencement of the Torch
Relay and as the Applicant showed no signs of toning down her demonstration. It
was clear to me from the attempts of the crowd to clash their flag poles with
that of the Applicant’s that this ‘thinly veiled’ threatening behaviour was in danger of getting out of control. Police
officers at the scene were having difficulties in providing an effective safe
bubble around the Applicant and I felt that a disaster was imminent had anyone
fallen to the ground.
7. I saw a man who apparently was pro-China
dash towards the Applicant from my position about 5m away. As it looked like he
was trying to either hit the Applicant or to grab her Snow Mountain Lion flag,
he was initially repelled by a PONT officer, later identified as CIP CHEUNG
Man-ching, and then pushed towards my direction by uniformed officers. After
the man had been pushed away, these officers retreated back to provide
protection to the Applicant. At this juncture I stepped forward with one of my
Sergeants and a constable and stopped the male. There were several options I
thought that could be applied in dealing with this man including arrest action.
I informed DCR and related the incident to Superintendent MA Chi-kin who was
the liaison officer with Crime units. A very short while later I was informed
to hand the incident over to the Incident Investigation Team on stand by at YMT
Police Station in order for them to investigate the incident and classify it
appropriately. I then directed my officers to arrange to take this male, later
known as LI Jian Hui, to the Incident Investigation team.
8. At almost the same time, an unknown man
came to me and blamed police for allowing the Applicant’s group to demonstrate. I
explained to him that everyone had the right of assembly and to express their
views, so long as there were no breach of the law or public peace. This man
stood in front of police and blocked us from moving. He said he would not give
in unless police removed the Applicant’s group.
9. I
took it upon myself at this time as the emotion of the red T-shirt intensified
and their aggressive behaviour was likely to escalate, to talk to the Applicant
and LAU and advised them to leave immediately. However, LAU refused to leave,
saying that they had the freedom of assembly and expression. I requested
further reinforcement and PTU officers and crime officers to surround the
Applicant, LAU and the foreigners to protect them, for by then the uproar of
the crowd against their pro-Tibet stance was likely to trigger an imminent
attack on them. I informed DCR of the situation. But within minutes, the crowd
was losing control. They shouted at the Applicant’s group abusively and called them
"running dogs" and used their China flags to hit the Snow Mountain
Lion flag. They also pushed and shoved the Applicant’s group and the safety of the
Applicant’s group was at stake. If the Applicant’s group continued to remain
there, it would pose danger not only to them, but to the general public as well
as it was evident then that a breach of the peace had occurred and it could
escalate into a violent situation at any time. What’s more, police officers who were
trying their very best to protect the Applicant’s group were sandwiched and they
were also at risk of being attacked by the red T-shirt people."
[41] A junior police officer, PC
Pang Po Yi, gave the following description in her affidavit dated 9 February
2009:
"4. Around 0910 hrs, several hundred
people, including different parties, were congregated along Parklane Boulevard.
Different parties such as Chinese students of Hong Kong University of Science
and Technology were waving Chinese National Flags, also, Kelly Chan’s fan club, holding flags and shouting. Meanwhile, the Applicant,
surrounded by about 30 journalists and many police officers, waved her Snow
Mountain Lion flag at the crowds. After seeing the Applicant’s actions, the pro-China supporters became angry and clashed the
Applicant’s flag by using their Chinese National flag poles. The pro-China
supporters shouted abusive words and pushed towards the Applicant. Worried the
scene was out of control, Sergeant 46819 led about six of my colleagues and I
to form a handgrip around the Applicant and about three of her friends in order
to separate the supporters and the Applicant and about three of her friends. At
the same time, several pro-China supporters tried to push through to the
Applicant by shoving our handgrip. Some colleagues advised the Applicant to
leave so as to protect herself, however, the Applicant apparently refused this
request. The scene became more chaotic as more supporters shoved us towards the
Applicant. I felt unsafe by the violent pushing. Soon I became aware that a
decision to remove the Applicant had been made and that the Applicant agreed to
leave the location. The Applicant and her friends were escorted away by the
police and moved to the sterile area (buffer zone)."
[42] Senior Superintendent of
Police So Kam Sing, who made the removal decision, recounted his thinking
process in his affirmation dated 9 February 2009 as follows:
"40. At around 09:44 hrs, I was
informed that other pro-relay supporters were arriving and were now confronting
the Applicant’s group. It was apparent to me from reports that
the Applicant’s group numbering about nine persons was enclosed
in a protective bubble formed by police officers surrounded by a seething mass
of pro-Torch Relay and pro-China supporters. Constant requests for more police
support were then coming in from both the Uniformed and Crime officers on the
ground. I deployed the Route Response Team from PTU B2 platoon on Haiphong Road
to assist.
41. At about that time, members of the Hong
Kong Confederation of Trade Unions who had gathered on Salisbury Road outside
the Peninsula Hotel were preparing to conduct their ‘shadow torch relay’ along the pavement areas of the Torch Relay route in order to highlight
their own causes. This too was a delicate situation for me to analyse as I had
genuine concerns that such a movement along the very congested and overcrowded
pavement areas might compromise public safety, as it would be nearly physically
impossible for a person to run through the crowds without pushing their way
through and thus potentially causing injuries. I thus tasked the Assistant
District Commander of Crime Yau Tsim to liaise with LI Chuk-yan, the leader of
that group to consider an alternative route that would similarly achieve their
aims. I had also received reports that pro-torch relay supporters positioned
along Salisbury Road were also then converging on L1’s group at their location to
fervouristically wave National Flags. I was becoming concerned that it was
developing into a potentially confrontational situation.
42. In addition to the sources of potential
conflict that were then maturely developing, the pavements had become so
congested that spectators were then spilling onto the road surfaces of the
access roads feeding into Nathan Road. These roads were not due to be closed
until a time nearer to the commencement of the Torch Relay in order to maintain
normal traffic flow for as long as possible but I was then facing requests for
the traffic duties to begin the much earlier closure of these roads to prevent
traffic and pedestrian conflicts caused by the sheer number of members of the
public who had turned up to see the relay. Further instructions were thus
passed to rail district police to change all MTR exits along Nathan Road to ‘In’ only in a bid to stem the tide of supporters arriving in the area.
Extra manpower from the Emergency Unit Kowloon West Quick Reaction Team was
deployed to assist.
43. Information was then being received
that the situation around the Applicant was escalating and was in imminent risk
of spiralling out of control. I was under no illusion from the reports coming
in describing the scene and aggressive actions that a Breach of the Peace was
then imminent. Supporters of Kelly Chan (陳慧琳) were also reported as joining the Pro-torch relay
supporters in their action directed against the Applicant as the location was
along the part of the route that Kelly would run as a Torch Bearer.
44. At approximately 09:50 hrs I passed
down the instruction that given that a breach of the peace was imminent and
that the safety of not only the Applicant and her group was at risk of being
compromised but also of the police duties who were protecting her and also
members of the public who were at that location as well, the Applicant and her
group needed to be removed from the immediate danger to a safe location."
[43] The applicant gave the
following account in her amended Form 86A:
"40. Shortly after 9:30 a.m. the
Applicant and Michael Brazel were joined by seven other demonstrators (the
Applicant and the other demonstrators are hereafter collectively referred to as
"the Demonstrators"). Meanwhile, the number of Counter-demonstrators
pressing against the Demonstrators and waving the Chinese national flag swelled
to about 50.
41. About twelve police officers (including
Sgt 46819, PC 4977, PC 5334, PC 53557, WPC 5219, WPC 5579, and WPC 4274) then
formed a human chain around the Demonstrators. Despite this, the
Counter-demonstrators continued to hit their flag poles against the
Demonstrators’ flag poles, wave their flags in the Demonstrators’ faces, and shout insults and obscenities. There were however at this
stage no attempts by the Counter-demonstrators to use direct physical violence
against the Demonstrators.
42. The only occasion when a
Counter-demonstrator attempted to use direct physical violence against the
Applicant was between 9:30 a.m. and 9:45 a.m. when a Chinese man in a white
shirt tried to force his way through the police and tried to lunge at the Applicant.
He was stopped by the Police in time before reaching the Applicant and was
arrested and taken away from the scene. Part of this incident was recorded on
the video footage taken by the Guardian News and Media Limited, which is
exhibited to the Applicant’s supporting affirmation."
[44] It is plain from these
descriptions that the police officers and the applicant’s group of demonstrators were
greatly outnumbered by the counter-demonstrators. Feelings and emotions were
running high as the applicant’s cause was, rightly or wrongly, perceived by many
as "anti-China" and disruptive of the first ever hosting of the
Olympic Games on Chinese soil. Abuses and insults were shouted and people were
using flags and flag poles to interfere with the demonstration of the applicant’s group. The opposite sides were kept apart by the police officers
present who had to form a protective bubble around the applicant’s group to protect them from the opposite demonstrators. The location
was extremely crowded with people. The numerically superior
counter-demonstrators were ever pushing against the human cordon line formed by
the police officers. The counter-demonstrators have been estimated from at
least one hundred to several hundreds in size, whereas there were only tens of police
officers present to protect the applicant’s group. The evidence was that
the police officers present were not only apprehensive of the safety of the
applicant’s group but also their own safety as well as the safety of other
innocent members of the public who were simply there on the pavement, waiting
to watch the torch relay. Bearing in mind the definition of a breach of the
peace
A breach occurs 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.
, and mindful of the respect that
must be had to the judgment of the police officers on the ground and of the
danger of hindsight, I am of the firm view that the police had reasonable
grounds to believe that there was an imminent breach of the peace.
[45] As already pointed out, ‘imminent’ in the present context simply means the near
future, but not necessarily the next second or minute. The decision of what
constitutes imminent has to be judged in the context under consideration and
the absence of any further opportunity to take preventive action may thus have
relevance. Laporte at p 161, para 142. As counsel submitted, the police were
faced with an operational dilemma of intervening too early (thus interfering
with the right to protest) and intervening too late (thus entailing breach of
the peace, injury to people or property).
[46] It is true that when the
applicant, with the protection of the police, demonstrated on the same
afternoon on Hong Kong Island, no breach of the peace broke out. Mr Harris
submits that is a strong indication that a violent attack against her in the
morning was unlikely. In my view, that is a typical attempt to use hindsight to
determine whether the police’s action in the morning was justified or not.
[47] The imminence of a breach of
the peace persisted whilst the applicant and her group were being herded slowly
from where they were into the buffer zone. The evidence clearly described that
the police had an extremely hard job to do in herding the group into the zone.
The pavement was crowded with people. Counter-demonstrators were pushing
against the protective bubble, shouting abuses and using their national flags or
flag poles to hit at the Snow Mountain Lion flag or flag pole carried by the
applicant. At one stage, as described, a lone man tried to break through the
protective cordon and snatch the Snow Mountain Lion flag from the applicant.
The police officers, according to the evidence, were greatly outnumbered by the
counter-demonstrators. The presence of several dozens of reporters and media
people did not make the police’s task any easier.
[48] It must be pointed out that
by this stage, the decision to remove had already been made, and the group was
being herded towards the buffer zone. The significance of what happened to the
group whilst they were on their way lies in the fact that the imminence of a
breach of the peace continued after the initial decision was made, so that
there was no reason to revoke or re-consider the decision after it had been
made.
[49] After the group had reached
the clear zone, they were protected to some extent by the metal barriers lining
the boundary of the zone. However, according to the evidence, the
counter-demonstrators kept pushing against the metal barriers and used their
national flags and flag poles in a dangerous manner in an attempt to prevent
the applicant and her group from continuing with their demonstration inside the
clear zone.
[50] Again, it must be remembered
that by the time the applicant’s group reached the clear zone, the decision to
remove them from the scene altogether had already been made. The important
thing is that, on the evidence, the imminence of a breach of the peace
persisted even after the applicant’s group had reached and was remaining within the
clear zone. That the applicant did not feel that this was so is quite
irrelevant because the relative calm that she enjoyed inside the buffer zone
was at the expense of those tens of police officers who were holding and
counter pushing the metal barriers to prevent the counter-demonstrators from
intruding into the clear zone to take further actions against the applicant’s group.
[51] In any event, it must also
be remembered that the clear zone was never meant to be a place for holding
demonstrations. The applicant and her group had no right to carry on any
demonstration within the clear zone. By that time, even if (assuming) the
imminence of a breach of the peace had momentarily subsided, the only choice
left would merely be either to remove the applicant’s group from the scene altogether
by the police van (which was the police’s plan) or to release them back
to the pedestrian pavement where they would again be subjected to the
counter-demonstrators’ harassment and threat. One thing that is clear is
that the applicant’s group was never intended to be within the clear
zone for any moment longer than was necessary to carry out its removal from the
scene, because the clear zone was delineated to serve other more important
purposes, particularly when the torch relay was about to start within minutes.
A "clear" clear zone was necessary to the police to maintain law and
order and exercise proper crowd management.
[52] Mr Harris for the applicant
vaguely argues that whilst in the normal case, no one has a right to
demonstrate within the clear zone, since the applicant and her group were
invited to enter the buffer zone, they had the implied permission of the police
to demonstrate there. The argument must be rejected. First, it is plain from
the evidence that it was never the intention of the police to invite the
applicant and her group to demonstrate within the clear zone. Taking them
inside the clear zone was only a transitional step so as to effect their
removal from the scene. Secondly and more importantly, the applicant and her
group were never under any illusion that they were being invited to the clear
zone to demonstrate there. Paras 45 and 46 of the amended Form 86A clearly say
that the applicant knew that the intention of the police was to "get them
behind the barricade and get them into the van", and this the police did
by first herding the demonstrators into the clear zone as described in para 46
of the amended Form 86A.
[53] For those reasons, the
argument of implied permission must be rejected. And the fact that the
applicant and her group had no right to demonstrate within the clear zone must
be firmly borne in mind when considering what happened in this case after the
demonstrators had reached the clear zone, including the (disputed) allegations
that the police had wrongfully interfered with the applicant in her attempts to
demonstrate with the Snow Mountain Lion flag and placard whilst inside the
clear zone and/or standing on a flowerbed inside the zone. As the applicant and
her group had no right to demonstrate within the clear zone, the police’s (alleged) actions to prevent the applicant from demonstrating within
the zone in the manner she preferred does not form any real issue in the
present case.
Taking steps against the
applicant rather than the counter-demonstrators
[54] Rather, the next important
issue is whether the police were justified in taking steps directed, not
against the counter-demonstrators who were behaving aggressively, but at the
applicant and her group who had been acting lawfully and peacefully in the
exercise of their constitutional rights to demonstrate, no matter how
objectionable some may find their cause and actions to be on the day in
question, in order to prevent the imminent breach of the peace.
[55] As discussed, the law
requires that, wherever possible, the focus of preventive action should be on
those about to act disruptively, not on innocent third parties. But exceptionally,
preventive action can be taken against third parties. In the above discussion,
I have, for the sake of convenience of discussion, mentioned three so-called
categories of exceptional circumstances, although I need emphasise again that
they are by no means clear-cut categories and the categorisation itself is far
from universal.
(i) 1st category
[56] I do not think the applicant
and her group fall within the category of demonstrators who, by interfering
with the rights or liberties of others, are likely to provoke violence, thereby
justifying preventive action against them (instead of against those who are
about to be provoked to violence). The applicant’s demonstration was lawful,
peaceful and practically static, save for the time when her group was herded by
the police into the buffer zone.
(ii) 2nd category
[57] The next category concerns
those whose action was "outrageous", "provocative" or
"unreasonable", although it did not involve any interference with the
rights or liberties of others as such. Whilst at the end of the day, given my
conclusion in relation to the third category, whether the applicant falls
within this category does not really matter, I would nonetheless state my view
on this question.
[58] On the very peculiar facts
of the present case – I have in mind the unique and peculiar
circumstances under which the protest demonstration was held, I take the view
that the demonstration was highly provocative, and thus falls within the
present category. As mentioned, on the facts and evidence, the Olympic torch
relay held in Hong Kong on 2 May 2008 was a highly significant event. The
overall background was Beijing’s hosting of the Olympic Games in 2008. It was not
only a first for a capital but also a first for China as a country. Rightly or wrongly,
it was perceived by many – including many Chinese, whether on the Mainland,
in Hong Kong or overseas – as an acknowledgement of the Chinese people as a
great proud people and of China both as a great ancient nation with an
illustrious history as well as a modern power coming of age in the world arena.
Locally, the enthusiasm and support for Beijing’s hosting of the Games in the
summer of 2008 in general (in fact Hong Kong hosted a small part of the Games
in the New Territories), and for the Hong Kong leg of the Olympics torch relay
in particular, was more than sufficiently demonstrated by the huge number of
onlookers who filled the streets of Hong Kong on 2May 2008 to witness the
historic event. As mentioned, just for the section of the relay going past the
Yau Tsim District, 52,000 to 100,000 people are estimated to have turned up to
witness the event.
[59] Senior Superintendent of
Police So Kam Sing stated in para 22 of his affirmation that according to his
observation, "there was a real sense of pride amongst [the torch relay]
supporters and a fervent sense of patriotism for China. Thousands of supporters
turned up waving the National Flag and wearing the colour red as conspicuously
as they could. [They] were showing up to show and demonstrate to the world
their support and loyalty for China". In my view, this is a fair
observation, which was fully borne out by the TV news footages placed before
the Court as part of the evidence.
[60] Another relevant background
matter is that the earlier legs of the torch relay outside of China had been
dotted with disruptions and protests. These disruptions escalated in scale as
the torch relay reached one city after another – including London, Paris and then
San Francisco. Very naturally, many protest groups had made use of the
opportunity to stage protests against the Mainland Government or its policies.
Many of the protests were peaceful and lawful, but a minority of them resorted
to disrupting the torch relay to promote their own causes. The disruption of the
earlier international legs of the relay was widely reported in the news in Hong
Kong. Scenes of invaders trying to snatch the torch naturally irritated those
who supported the event. When the relay took place in Hong Kong on 2 May 2008,
it was only about three months away from the opening of the Games in Beijing.
It was the first time that the Olympic flame reached Chinese soil since the
relay started. As Mr McCoy submitted, "National pride was pushed to the
highest. The general atmosphere in Hong Kong was ecstatic and the mood of the
general public ebulliently proud". Significantly, counsel observed,
"some people even regarded it as their duty to [take steps to] protect the
torch whilst it was in Hong Kong", like what some overseas Chinese had
done during the subsequent international legs of the relay.
[61] As Mr McCoy also submitted
at the hearing, conduct innocuous on one day in one set of circumstances may be
highly inflammatory on another. On 2 May 2008, Hong Kong, as part of China and
a (predominantly) Chinese community, shared in that day of national unity and
pride of the Chinese people. The crowd that had gathered on the streets to
witness the historic torch relay was in a festive, jubilant mood. It was in
those circumstances and against that sort of background that the applicant and
her group staged their protest demonstration, shouting repeatedly slogans like
"Free Tibet, free China" (in English) and waving the Snow Mountain
Lion flag, amongst the exulted crowd. Whatever actual meaning the flag may carry,
it was perceived by many as the symbol of a separatist or "splitist"
movement when, not only under Hong Kong or Mainland law but to many Hong Kong
Chinese, Tibet, like Taiwan, is an inviolable part of China. Again, the slogan
"Free Tibet, free China" may mean different things to different
people, but to many it did convey a meaning which was quite at odds with the
underlying national pride and patriotism that many were experiencing on 2 May.
[62] The Court, it must be
emphasised, is not here to pass judgment on the applicant’s cause or the Tibetan movement. Nor is it here to decide whether the
general public has misunderstood what the cause is all about. All the Court is
concerned with is whether, given the unique and peculiar background, the
applicant’s protest demonstration on the day in question was so provocative to the
crowd that in order to prevent an imminent breach of the peace, the police were
justified in taking action against the applicant’s group, rather than the crowd
who was about to be provoked to breaching the peace. Whilst Lord Mance talked
of deliberate provocation (Laporte at p 162, para 146), Lord Rodger preferred
to describe the category of cases under discussion as those where the action in
question was almost certain to provoke hostile and violent reactions (p 139,
para 77). In my view, whether one describes the applicant’s action as "provocative", "outrageous" or
"unreasonable" does not really matter; these words convey the same or
an essentially similar meaning in the present context.
[63] Incidentally, I wish to
emphasise here that these adjectives are only used in a relatively sense; no
moral judgment is involved in using them. Something can be most outrageous to a
particular crowd even though in absolute terms, the crowd may well be wrong in
its understanding. One is not concerned with passing judgment here, moral or
otherwise; one is concerned with what options or alternatives are open to the
police, whose primary duty is to preserve the peace. The police must be
entitled to take the crowd as it is, just as they cannot choose the crowd they
have to deal with. Likewise, a protest demonstrator seeking to make use of a
public event and the large crowd that it attracts to demonstrate and promote
his cause must, to a certain extent, take the crowd as he finds it.
[64] The Irish case of Humphries
v Connor , supra , provides a good illustration. In that case, the plaintiff
elected to walk through the streets of Swanlinbar, Co Cavan, wearing an orange
lily, an action which, in that part of the country, "was calculated and
tended to provoke animosity between different classes of Her Majesty’s subjects". Several people followed after the plaintiff "and
in consequence thereof caused very great noise and disturbance". They
threatened the plaintiff with personal violence for wearing the orange lily. The
defendant, a sub-inspector of constabulary, requested the plaintiff to remove
the orange lily. She refused, and he therefore removed it from her. He was sued
for trespass. The Irish Court of Queen’s Bench held that on the facts pleaded by the
defendant, he had a good plea and the case would go to trial and the jury would
have to determine whether the sub-inspector’s action (of removing the orange
lily from the plaintiff) was necessary.
[65] Some cases speak of the
demonstrator in question being "deliberately" provocative. In my
view, the applicant in the present case cannot claim innocence of the likely
reactions on the part of some people that her demonstration would provoke. She
actually received a death threat over the internet prior to the day in question.
She says she did not take it seriously but eventually agreed to report the
matter to the police. In any event, if she had been ignorant about the likely
reactions to her intended demonstration prior to the day, she cannot possibly
have had any illusion about them after her group started demonstrating on the
street from about 7:30 am on the day in question. In my view, it is really a
question of semantics whether she was "deliberately" provocative. An
important thing is that she knew full well that her demonstration was highly
provocative to the counter-demonstrators, regardless of her claim that she had
no intention whatsoever to provoke anybody by her action.
(iii) 3rd category
[66] In this last category, when
there is no other way available to the police to maintain the peace, and if the
action of the police is no more than is necessary and is otherwise
proportionate, the police can take action against innocent third parties in
order to prevent the imminent breach of the peace. In other words, even
assuming that the applicant’s action was not deliberately provocative,
unreasonable or outrageous, if the circumstances were such that there was no
other way to prevent the imminent breach of the peace, the police could take
action against the applicant and her group so as to prevent the breach, so long
as the police’s action was no more than was necessary and was
proportionate.
[67] In my view, the police had
no option but to take action against the applicant and her group. The police
officers present were outnumbered by the counter-demonstrators. They kept
asking for reinforcements, which were never sufficient to match the ever
growing number of counter-demonstrators. According to the evidence, the
estimates of the number of counter-demonstrators ranged from at least one
hundred to several hundreds. All this was taking place within an extremely
crowded environment, where tens of thousands of people had gathered to watch
the torch relay which was about to start. A part of the pedestrian pavement was
actually cordoned off by metal barriers to form the clear zone. People were
carrying flags with long flag poles, and the counter-demonstrators were using
them to shadow the applicant’s demonstration. On top, one has the occasion
itself to consider. For the police to make an arrest, not to mention mass
arrest, of the counter-demonstrators in order to keep the peace must have been
a most undesirable option. When the police officers were greatly outnumbered
and their own safety was on the line, whether it was a practicable option was
also in doubt. Moreover, its effect on the counter-demonstrators and the rest
of the crowd would have been highly unpredictable, particularly bearing in mind
the highly unpopular cause that the applicant’s group was pursuing. On top of all
that, if the Court is correct with its earlier conclusion that in fact the
action of the applicant may be described as highly provocative, justifying
police intervention in the first place, in my view, the police was faced with
no other practical options but to take action against the applicant and her
group in order to maintain the peace.
Reasonably necessary and
proportionate
[68] This leaves the question of
whether the action taken by the police was nothing more than was necessary and
was proportionate. The action taken by the police was to remove the applicant
and her group from the scene altogether. The police had tried to form a
protective bubble around the applicant’s group so as to enable them to carry on with
their demonstration and had been met with increasing hostility from the
counter-demonstrators. In other words, the police felt that there was simply no
way to separate the two sides so as to allow both to carry on with their own
causes. And once it is concluded that the police was justified in taking action
against the applicant’s group, it must follow, in the circumstances of
the present case, that the police was justified in removing the applicant’s group from the scene to prevent a breach of the peace. It was no more
than was necessary and was a proportionate action to take in the circumstances
of the case. As I pointed out earlier, herding the applicant’s group into the clear zone was just a first step taken to remove them
from the scene. It was never the intention of the police – and the applicant had no illusion about it for reasons explained – to allow the applicant’s group to demonstrate inside the clear zone. In
other words, allowing the applicant to demonstrate inside the clear zone, as
was vaguely suggested on behalf of the applicant by counsel at the hearing, or
allowing them simply to remain there, was not an alternative open to the police
for present purposes.
Removing the Snow Mountain Lion
flag as an alternative?
[69] Then it was suggested, very
late in the day (actually half-way through Mr Harris’ opening submission on the first
day of the hearing), that the police could have chosen to remove the Tibetan
flag from the applicant, instead of removing the whole group from the scene.
Counsel submitted that as the crowd was provoked by the Snow Mountain Lion
flag, the police could have taken the less drastic action of removing the flag
from the applicant’s group so as to prevent a breach of the peace.
Removing the whole group from the scene was more than was necessary and was not
a proportionate action to take.
[70] I reject the argument.
First, this was never raised in the Form 86A. The applicant has never run an
alternative case that the police would have been justified in curtaining her
right to demonstrate by taking away her Snow Mountain Lion flag, but
overstepped the line by actually removing the applicant and her group from the
scene of protest altogether, thereby infringing her right to demonstrate. A
declaration that the police acted in excess of their power has never been an
alternative case of the applicant in the Form 86A in terms of the relief
sought. Nor has this option of removing the flag from the applicant been
mentioned in the body of the Form 86A as a relevant fact or matter.
[71] Even more significantly, the
applicant has never in her three affirmations, the last one of which was filed
and served after the Commissioner had filed no less than 16 affidavits or
affirmations, mentioned this possibility of removing the flag from her as a
less drastic measure that the police could and should have taken to prevent an
imminent breach of the peace, by way of an alternative case to her primary
case. It should be noted that in the evidence filed on behalf of the police, it
was said that there was no other way but to remove the applicant and her group
from the scene of protest in order to preserve the peace. Understandably, given
what had been said and not said in the Form 86A and in the supporting
affirmations, the evidence filed by the Commissioner did not deal specifically with
the possibility of removing the flag from the applicant as a measure to pacify
the counter-demonstrators. Plainly it was quite impossible for the Commissioner
to prove the negative by identifying all possible alternative actions and
explaining why each of them was less preferable or was unworkable as an
alternative. In those circumstances, it became even more important for the
applicant to raise this point of removing the flag from her in her 3rd
affirmation specifically, if it was really a point she wished to raise before
the Court. Yet not a single word was mentioned about this possibility. Instead,
one of the matters she complained about in her 3rd affirmation was that at one
stage whilst she was inside the clear zone the police prevented the applicant
from using the flag to demonstrate (para 41).
[72] But not only that. In the
written submission lodged by counsel on behalf of the applicant at the
direction of the Court, not a single word was mentioned about this alternative
possibility of removing the flag from the applicant. As I mentioned, it was
only during the middle of leading counsel’s submission that this point was
first raised.
[73] In my view, Mr McCoy for the
Commissioner very rightly took as his first point a pleading objection to this
belated point raised by the applicant.
[74] In any event, I reject the
argument on the merits. I accept that to a significant extent, the Snow
Mountain Lion flag stood for the cause of the applicant and in the
circumstances under consideration, it was a highly provocative symbol to the
counter-demonstrators. And indeed there were attempts by the
counter-demonstrators to either shadow the Tibetan flag, to knock it down on
the ground or even to snatch it from the applicant. Yet it would be an over
simplification of the situation to suggest that by removing the flag from the
applicant, the counter-demonstration would die down and there would not be any
imminent breach of the peace. For one, it was wholly unpredictable what the
applicant’s own reactions would have been to such an action. In fact, she was
demonstrating not only by means of waving the flag, but also by means of
placards (one of them read: "End the CCP [Chinese Communist Party]’s Rule of Terror"). She was shouting slogans which were taken by
many to be highly provocative ("Free Tibet, free China") on the day
in question. Whilst inside the clear zone, she stood on a flowerbed to
demonstrate, shouting loudly to the counter-demonstrators.
[75] Moreover, what really
provoked the counter-demonstrators was the (perceived) implied message of
separatism concerning Tibet, which many regarded as part of China, which was
felt to be provocative and at odds with the national pride and spirit of unity
of the Chinese people that the counter-demonstrators were feeling. The flag
simply symbolised the cause. Removing the flag, but allowing the demonstrators
to carry on with their pro-Tibet (and "anti-China") demonstration,
simply did not deal with the conflict between the demonstrators and
counter-demonstrators at its root.
[76] In my view, the police could
not have reasonably considered that removing the flag would defuse the
situation.
Proper advance preparations
[77] In determining whether there
was no other way to prevent a breach of the peace, the question of making
proper advance preparations to deal with such a breach is relevant (Austin
(CA), supra , at p 680, para 35). In the present case, Senior Superintendent So
Kam Sing has explained in his affirmation a very detailed plan that the police
had put in place in order to maintain law and order on the day in question. It
must be remembered that the relay was a huge task and the police had many many
things to occupy their mind. The applicant’s small group of demonstrators
was only one amongst many. The smooth running of the event, the prevention of
disruptive actions, the safety of the participants of the torch relay, the
safety of the crowd, the traffic, the needs of the various demonstrators and protest
groups, to name just a few, were all within the police’s purview. And there were plans
to deal with them. For instance, for the demonstrators and protest groups,
special designated areas had been earmarked to cater for the demonstrations and
better police protection was available at those designated areas. For reasons
of its own, the applicant’s group chose not to demonstrate in the designated
areas. There were prior contacts with the known demonstration groups, including
the applicant. Police officers were present from the first moment after the
arrival of the applicant and her friend at the scene at around 6:30 am to
render them assistance and protection. When the size of the
counter-demonstrators swelled, the number of police officers sent to protect
the applicant’s group also grew. But there was a limit to police
resources, and the police had to be wise in allocating their resources to cater
for all the needs associated with the event which were as diverse as they were
many. Thus as Senior Superintendent So Kam Sing explained in para 26 of his
affirmation:
"Members of [the Public Order
Negotiation Team], if not already assigned to the various groups were mobilised
to liaise with the protestors and encourage peaceful, non-disruptive protests.
Also, protestors were encouraged to utilise the Designated Public Activity
Areas that had been established and where specific police resources had been
deployed. The appearance of so many different groups in so many different
locations required me, through the DCR to re-deploy many police resources.
Aside from the many individual protestors or banners, it was estimated that
there were a total of seven visibly identifiable groups of different protestors
along the relay route in Yau Tsim."
[78] The situation concerning the
applicant’s group and the reaction of the counter-demonstrators was constantly
monitored by the high command and re-deployment of police officers was made
throughout the morning in question to increase protection to the applicant’s group.
[79] For my part, guarding
against the danger of hindsight, and giving the police command its due respect,
I am far from convinced that the police had not taken sufficient advance
planning to deal with possible breaches of the peace associated with the applicant’s demonstration. There were simply limits to what the police could do.
[80] As had been pointed out by
the Court of Final Appeal in Leung Kwok Hung, supra , at p 249, para 22, whilst
the Government has a positive duty to take reasonable and appropriate measures
to enable lawful assemblies to take place peacefully, it cannot guarantee that
lawful assemblies will proceed peacefully and it has a wide discretion in the
choice of the measures to be used. And it must be firmly borne in mind that the
Government’s obligation is "an obligation as to measures to be taken and not
as to results to be achieved", ibid , at p 250, para 24, citing with
approval the observations by the European Court of Human Rights in Plattform ‘Ärzte für das Leben’ v Austria, supra , at para 34.
Removal and detention
[81] In the present case, the police denied that they
ever arrested the applicant and her group whilst (or after) removing them from
the scene. I have no reason not to accept the police’s account. In any event, as explained, once it became
justifiable for the police to take action against even innocent third parties,
the steps which the police could take might involve arresting the third
parties. After all, every citizen has the duty to prevent a breach of the
peace, and a duty not to obstruct the police in executing its duty.
Prescribed by law
[82] Mr Harris has on behalf of the applicant complained
that the restriction on the applicant’s constitutional
rights is not "prescribed by law". Apparently he relies on article
39(2) of the Basic Law which requires any restriction on the rights and
freedoms enjoyed by Hong Kong residents to be "prescribed by law".
[83] I do not accept the argument. First, this is a new
point, which has never been relied on in the Form 86A. Secondly, the legal
principles that I have set out and relied on to decide the present case are
common law principles that have been developed by the courts over the
centuries. They have been summarised and applied in Laporte and Austin
respectively. But they are not new principles created out of nowhere by the
House of Lords and Court of Appeal. They are based on previous decisions.
Moreover, Laporte itself was decided in December 2006. Although different Law
Lords had different ways in describing the principles, as the Court of Appeal
in Austin pointed out, these different descriptions all sought to formulate
essentially the same principles, which the Court of Appeal set out and applied
in Austin . Bearing in mind that the present case took place in May 2008, I do
not think at that time the relevant law in Hong Kong was so uncertain and
unpredictable by a reasonably competent legal advisor as to fail the
"prescribed by law" requirement.
Outcome
[84] For all these reasons, I conclude that the police
were justified in removing the applicant from the scene of demonstration on 2
May 2008. Their decision to do so did not infringe the applicant’s right to hold a peaceful
demonstration at the scene. The challenge against the decision to do so
therefore fails and is dismissed. I make an order nisi that the costs of these
proceedings, including any costs previously reserved, be paid by the applicant
to the respondent, to be taxed if not agreed, with a certificate for two
counsel. I also order legal aid taxation in respect of the applicant’s own costs.
Postscript
[85] The Court is acutely conscious that our society is
governed by the rule of law, not the rule of the mob. And it has seriously and
carefully considered whether the decision in the present case would set a wrong
precedent for the future. The Court bears in mind in particular three matters
in maintaining its conclusion. First, the relevant law and principles are
reasonably clear. The law allows, in exceptional circumstances, the police to
take action against even innocent third parties in order to prevent an imminent
breach of the peace. Secondly, it is only in very exceptional circumstances
that such an action by the police can be justified. Thirdly, the events on 2
May 2008 happened against a unique background – the first ever hosting of the Olympic Games on Chinese soil, "the
realisation of a 100-year dream of the country". The Court’s decision is made in light of those most peculiar
circumstances which are unlikely to repeat themselves. As Mr McCoy observed
during argument, a similar protest in Central or Tsim Sha Tsui today would most
likely fail to raise even a murmur, let alone any counter-demonstration.
[86] The dismissal of the applicant’s case does not mean that the counter-demonstrators
were in the right. Far from it. The near-violent reactions of the
counter-demonstrators, though understandable enough, must be condemned.
Everyone in our society has the fundamental right to express his or her view
openly and to do so by means of peaceful, lawful demonstration if he or she so
wishes, without fear of physical violence by others. The right to
counter-demonstrate cannot extend to inhibit the exercise of the right to
demonstrate. Our society allows its members to disagree, even profoundly, with
each other’s views. But such disagreement
must be expressed in a peaceful manner, with a minimum standard of respect for
each other as equal members of our society. That is a hallmark of a democratic,
mature society.
[87] I thank counsel for their assistance subject to
this reminder: it is of great importance to the Court, in the interests of the
proper administration of justice, and for the sake of fair play as well, that
counsel must cite to the Court all decisions relevant to the issues before it,
whether they be for or against their case. That such an elementary principle
requires reiteration by the courts from time to time demonstrates both the
importance of the subject and how easily it is overlooked in practice.
2010年9月3日
【本報訊】港大女生陳巧文涉嫌今年元旦日,在中聯辦對面西區警署示威時,揮拳打向負責扶鐵馬的女警右面,陳巧文早前否認一項襲警罪受審,昨獲曾審理包致金 侄女Amina襲擊案的裁判官阮偉明裁定罪名不成立,相信被告只是意外觸碰到女警面部,並非刻意襲警。警方回應,會尊重法庭判決,但強調警方拘捕及檢控的 行動,是基於涉案人士的行為,而不是針對他們的政治訴求。
23歲被告陳巧文,被控一項刑罰較輕、屬《警隊條例》中的襲警罪,與早前包致金侄女Amina的控罪相同。陳巧文早前被裁定表證成立後,昨選擇不自辯。
官指場面混亂或意外碰觸
代表她的資深大律師李柱銘指出,事主曾供稱遭被告的手掌擊中眼睛,後又改口指被揮拳打中面部,口供 前後不一,並不可信。另事主又曾指她扶緊鐵馬維持秩序時,被另一名示威者捉住雙手,而遭意圖跨過鐵馬的被告揮拳擊中,李柱銘指只是混亂中的意外,何況沒有 其他警員目擊,事主亦無即時指控被告襲警。
阮官聽取辯方陳辭後即作出裁決,指案發時被告攀高踏於鐵欄下方的橫鐵上高呼口號,同時右手上下搖 動,與事主只是一個鐵馬之隔,她的後方又有多名示威人士不斷推前,情況混亂,因此阮官接納李柱銘的說法,認為被告有很大可能是意外觸碰到事主,由於沒有證 據證明被告刻意襲擊事主,在疑點利益歸於被告下,裁定被告罪名不成立。在被告被裁定罪名不成立後,李以義務打官司為由,沒有向法庭申請堂費。
陳巧文事後於庭外表示,警方一直對他們示威人士作出打壓行為。
警方強調檢控掌握充分證據
警方稍後作出回應,表示他們並非針對涉案人士的政治訴求,而是基於他們的行動而決定拘捕及檢控,又強調警方保持中立,在經過搜證及掌握充分證據才作出檢控,必要時更會諮詢律政司意見。
包致金侄女案後,律政司有新指引,規定日後凡以較重的侵害人身罪檢控襲警時,必須先諮詢律政司意 見,但以較輕的警隊條例作出檢控,警方仍可自行決定。香港人權監察認為,由警方決定是否起訴示威者襲警有利益衝突,因為警方是當事人,無論輕重,應該全部 交由律政司決定。不過,警務督察協會主席廖潔明表示,現時的做法並沒有問題,「遊行示威或要表達自由去衝擊一些機構,在這個情況下,我們現行的做法是一定 會聽取律政司的意見。」但他同意可以將侵害人身罪及警隊條例此2條可控襲警的法例合併。
|
今次是繼楊匡後,另一名在中聯辦示威而被檢控的人士,陳巧文指,警方是刻意打壓前往中聯辦示威的人士,希望予人中聯辦神聖不可侵犯的感覺,以向其他示威者產生阻嚇作用
對執行職責的警務人員襲擊等或以虛假資料誤導警務人員的罰則
任何人襲擊或抗拒執行職責的 警務人員, 或協助或煽惑任何人如此襲擊或抗拒,或在被要求協助該執行職責的人員時拒絕協助,或意圖妨礙或拖延達到公正的目的而提供虛 假資料, 以蓄意誤導或企圖誤導警務人員,循簡易程序定罪後,可處罰款$5000及監禁6個月。 (由1977年第42號第16條修訂)
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就投訴《東方新地》刊登偷拍陳巧文圖文的裁決
香港記者協會於今年一月十八日接獲88名市民的電郵及書面投訴,指第632期《東方新地》刊登偷拍陳巧文小姐在家中的內衣照,「對此等嚴重侵犯他人的生活和私隱,表示強烈抗議。特此……投訴《東方新地》嚴重違反傳媒操守。」
就該封面報導引起的議論,《東方新地》覆函香港記者協會指出,「本刊收到長洲街坊報告,指新聞人物陳巧文不時身穿性感內衣於寓所窗邊及露台徘徊,有礙觀瞻。本刊派員採訪屬實,作出相關報導。」
該刊又指出,「陳巧文村屋寓所設置一列落地大窗通向露台,露台欄柵空隙甚闊,而且四周貼近鄰居,由於不關窗簾,鄰居以肉眼亦可清楚觀看其窗戶及露台。陳巧文小姐寓所位於屋村三樓,從樓下行人路仰望亦可透過露台欄柵觀察其露台及窗戶。」
記協操守委員會認為,法律並無明確界定及禁止偷拍行為,而法律改革委員會的建議亦認為,在公眾地方以普通攝影機拍攝,不算偷拍。操守委員會又認為,在今次事件中,當事人陳巧文並沒有採取足夠措施保護自己免受屋外人士拍攝。
操守委員會又質疑,在不涉及公眾利益而當事人亦並非娛樂界人士,《東方新地》是否有必要將一名參與社會運動的女大學生在居所內的內衣照片以雜誌封面故事大篇幅報道。
投訴人又指出,傳媒嚴重侵犯陳巧文個人私生活,令人認為,參加社運人 士會被傳媒針對欺壓。當事人陳巧文接受傳媒查詢時,亦質疑《東方新地》在去年夏天已拍攝有關照片,但等待至一月中(當事人高調參與立法會外反高鐵示威後) 才刊登。該刊在回應中強調,該刊是一分消閒娛樂雜誌,採取輕鬆手法報道新聞人物近況,文中一切有關陳巧文示威活動均屬真實客觀,無任何政治取向。操守委員 會認為,難以證明報道刊登時間是否與陳巧文示威活動有關,但對於為何採訪幾個月後才刊登有關報道,該刊始終沒有給予合理解釋。
此外,該刊聲稱是收到投訴後,派員採訪屬實後作出相關報道,但整篇報道沒有訪問當事人,剥奪了當事人作出回應的權利,不符合處理新聞的基本原則。
就該封面報導引起的議論,《東方新地》覆函香港記者協會指出,「本刊收到長洲街坊報告,指新聞人物陳巧文不時身穿性感內衣於寓所窗邊及露台徘徊,有礙觀瞻。本刊派員採訪屬實,作出相關報導。」
該刊又指出,「陳巧文村屋寓所設置一列落地大窗通向露台,露台欄柵空隙甚闊,而且四周貼近鄰居,由於不關窗簾,鄰居以肉眼亦可清楚觀看其窗戶及露台。陳巧文小姐寓所位於屋村三樓,從樓下行人路仰望亦可透過露台欄柵觀察其露台及窗戶。」
記協操守委員會認為,法律並無明確界定及禁止偷拍行為,而法律改革委員會的建議亦認為,在公眾地方以普通攝影機拍攝,不算偷拍。操守委員會又認為,在今次事件中,當事人陳巧文並沒有採取足夠措施保護自己免受屋外人士拍攝。
操守委員會又質疑,在不涉及公眾利益而當事人亦並非娛樂界人士,《東方新地》是否有必要將一名參與社會運動的女大學生在居所內的內衣照片以雜誌封面故事大篇幅報道。
投訴人又指出,傳媒嚴重侵犯陳巧文個人私生活,令人認為,參加社運人 士會被傳媒針對欺壓。當事人陳巧文接受傳媒查詢時,亦質疑《東方新地》在去年夏天已拍攝有關照片,但等待至一月中(當事人高調參與立法會外反高鐵示威後) 才刊登。該刊在回應中強調,該刊是一分消閒娛樂雜誌,採取輕鬆手法報道新聞人物近況,文中一切有關陳巧文示威活動均屬真實客觀,無任何政治取向。操守委員 會認為,難以證明報道刊登時間是否與陳巧文示威活動有關,但對於為何採訪幾個月後才刊登有關報道,該刊始終沒有給予合理解釋。
此外,該刊聲稱是收到投訴後,派員採訪屬實後作出相關報道,但整篇報道沒有訪問當事人,剥奪了當事人作出回應的權利,不符合處理新聞的基本原則。
香港記者協會操守委員會
二○一○年三月三日
明光社就陳巧文一事的聲明
週五
2010-01-22 尤拉
(轉載自:
http://www.truth-light.org.hk/email_v1/complain-20100119.htm)
(留意它的反應比我的文章早,所以它出聲明不是我的功勞!)
對於2010年1月19日出版的632期東方新地,以「80後女神
陳巧文晒籮示威」為題,於封面及內頁報導陳巧文私生活及從窗外窺探她家居內的情況,以長鏡頭拍攝當事人在家中的私生活,並以文字批評她於住所內的衣著及私生活,沒有尊重當事人的私隱,本社表示強烈不滿。
根據由香港記者協會、香港新聞行政人員協會、香港新聞工作者聯會及香港攝影記者協會共同制定的《新聞從業員專業操守守則》,新聞工作者雖然有其言論自由,並以公眾利益為依歸,但亦「應尊重個人名譽和私隱。在未經當事人同意,採訪及報道其私生活時,應具合理理由,適當處理,避免侵擾個人私隱。」(守則第4條);「傳媒報道公眾人物的個人行為或資料時,須有合理理由。」(守則第4條第2節)
我們實在看不到當事人在家中的衣著習慣和市民的公眾利益或知情權有任何的關係,但該雜誌卻以此卑劣的偷拍手法,並配以負面的評論,將當事人的私隱公開給公眾,為的只想以偷拍、揭秘形式的報導手法推高銷量,罔顧對當事人及有關人士所造成的傷害。
如市民大眾對該報導亦感到不滿,可向該雜誌、私隱專員公署、影視處及報業評議會等相關組織投訴:
東方新地
電話:
2960 3504
傳真:
2960 5701
電郵地址:os@newmediagroup.com.hk
個人資料私隱專員公署
查詢電話:
2827 2827
傳真:
2877 7026
電郵地址:
enquiry@pcpd.org.hk
投訴表格:
http://www.pcpd.org.hk/chinese/contact/files/complaint_chi.pdf
影視處
電話:
2676 7676
傳真:
2827 2893
電郵地址:
nrs@tela.gov.hk
香港報業評議會秘書處
電話:
2570 4677
傳真:
2570 4977
電子郵件:
enquiry@presscouncil.org.hk
網址:
http://presscouncil.org.hk
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