Freedom of Assembly, Procession and Demonstration
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Freedom of Assembly, Procession and Demonstration



I. Freedom of Assembly, Procession and Demonstration



A. Nature, extent and limitations

Freedom of assembly, procession and demonstration is guaranteed under Article 27 of the Basic Law. Article 17 of the Hong Kong Bill of Rights also recognises the right of peaceful assembly. Freedom of demonstration is well recognised by the Court of Final Appeal as a constitutional right that is closely associated with the freedom of speech and at the heart of Hong Kong’s system. A generous interpretation to the freedom to demonstrate should be given to guarantee this constitutional right even when the view expressed may be found to be disagreeable, or even offensive, to others or may be critical of persons in authority. (Yeung May Wan & Others and HKSAR (2005) 8 HKCFAR 137)

Yet, the freedom of assembly, procession and demonstration is not absolute. Restrictions on it can be placed if they are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, what is necessary for the protection of the general welfare or for the interests of the collectively as a whole, protection of public health or morals or the protection of the rights and freedoms of others.

The right of peaceful assembly and the right to freedom of expression stopped, so far as physical or geographical limits were concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter. (HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371)

As for any “public open space” (as designated by the relevant Government lease) in a private building, lawful and peaceful demonstrations may be staged as long as it is one that the public could reasonably be expected to tolerate, provided that there is no obstruction of ingress to and egress from the building and of pedestrian or vehicular traffic. However, in respect of a narrow and often busy public walkway such as the one along Queen’s Road Central near the steps to the upper ground floor, taking into account the public’s interest, tents, canopies and other temporary structures may not be able to be erected there. (Turbo Top Ltd v. Lee Cheuk Yan and Others [2013] 3 HKLRD 41)

Conducts of the public within the Legislative Council premises are regulated by the Administrative Instructions for Regulating Admittance and Conduct of Persons (Cap. 382A). Section 11 of the Administrative Instructions provides that “Persons entering or within the precincts of the Chamber shall behave in an orderly manner ...”. Under s.12(1), which the Court of Final Appeal has ruled to be constitutional, “No person shall, in a ... public gallery, display any sign, message or banner.” (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, HKSAR v Cheung Kwai Choi [2018] HKCFI 2243)

As for the use of East Wing Forecourt of the Central Government Offices (also commonly known as “Civic Square”), the Director of Administration had previously introduced a permission scheme under which the Forecourt was only open to the public on Sundays and public holidays from 10am to 6:30pm for holding public meetings and processions upon application to the Director and the latter's approval, irrespective of the manner of the intended meeting or procession or number of persons involved. The Court of First Instance has declared that this permission scheme was unconstitutional. However, it is possible for the Director to devise a new scheme which satisfies the constitutional human rights requirements. (Cheung Tak Wing v. Director of Administration [2018] HKCFI 2557)



B. Positive obligations on the Government

In Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, the Court of Final Appeal pointed out that 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, such as to minimise any disruption to traffic and inconvenience caused to the general public.

In Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797, the Court of First Instance further held that the government should try to ensure that demonstrators must be able to proceed without fear of physical violence by opponents since such a fear would have a deterrent effect. If the Government fails to do so, the demonstrators may apply for judicial review to challenge the relevant decision or the lack of it by the Government. If the demonstrators are injured, they may also hold the police liable in negligence and claim damages for the injury if that injury was a reasonably foreseeable consequence of the police’s actions: Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.



II. Public Order Ordinance (Cap. 245)



A. Public meetings, processions and gatherings

The Public Order Ordinance (Cap. 245) regulates public meetings and public processions. A public meeting means any gathering organised for discussion of matters of interest to the general public, which is held in a public place, i.e. a place where public have access to, no matter payment is required or not. However, it does not include social, recreational, cultural, academic, educational, religious or charitable gatherings, or those for the purpose of a funeral.

A public procession means a procession organised for a common purpose, which takes place in, to or from a public place.

A public meeting may take place only if the Commissioner of Police is notified of the intention to hold the meeting and the meeting is not prohibited by the Commissioner of Police.

A public procession may take place only if the Commissioner of Police is notified of the intention to hold the procession and the procession is not objected to or deemed to be not objected to by the Commissioner of Police.

A public gathering means a public meeting, a public procession and any other meeting, gathering or assembly of 10 or more persons in any public place.



B. Regulation of public meetings and public processions

  1. Notification of public meetings

  2. Notification of public processions

  3. Right of Commissioner of Police to prohibit public meetings and object to public processions

  4. Imposition of conditions by the Commissioner of Police

  5. Appeal mechanism

  6. General powers of the Commissioner of Police on controlling the conduct of public gatherings

  7. Police powers over meetings, processions and gatherings




1. Notification of public meetings

A notice of intention to hold a public meeting must be given in writing to the Commissioner of Police at least one week (i.e. no later than 11 a.m. on the same day of the week in the preceding week) before any public meeting is held. But the Commissioner of Police may accept a shorter notice if he is reasonably satisfied that an earlier notice could not be given.

The notice should include the name, address and telephone number of the organiser, the purpose of the meeting, the date, location, time of commencement and duration of the meeting, and an estimation of the number of people expected to attend the meeting.

In practice, upon receipt of the notice of intention to hold a public meeting, the police will write to enquire the details of the public meeting, such as:

  • the nature of the organiser;

  • the experience of the organiser to hold public meetings in the past;

  • whether there would be co-organisers and their nature, experience of holding public meetings and roles in the proposed public meeting;

  • the number of event marshals, their roles, identification marks (such as designated T-shirts) and the method to communicate with them;

  • whether the press have been informed, and if so, the media reporting arrangement;

  • whether amplifiers, banners and other demonstration materials would be used in the meeting and their size and number;

  • whether there would be first aid and beverage supply stations;

  • the theme or themes of the meeting;

  • the method to estimate the number of people expected to attend the meeting;

  • whether fundraising activities would take place, and if so, whether applications have been made to the relevant authorities;

  • as regards the proposed venues, whether bookings have been made with the relevant authorities (such as the Leisure and Cultural Services Department) if required;

  • any special arrangements under inclement weather conditions;

  • whether the organiser has bought insurance to cover accidents during the meeting.

    The organiser and the police may meet several times or correspond in writing for several rounds to confirm the details of the proposed meeting. The police may raise specific concerns which the organisers need to address in relation to issues of public order, public safety and the encroachment on rights and freedoms of others which the proposed meeting may bring about, before a Notice of No Objection will be issued.

    The requirement of giving a written notice to the police for a public meeting does not apply to a meeting of less than 50 people, a meeting in private premises of less than 500 people and a meeting in any school if organised by and with the consent of an accredited society of an educational establishment.




    2. Notification of public processions

    A notice of intention to hold a public procession must be given in writing to the Commissioner of Police at least one week (i.e. no later than 11 a.m. on the same day of the week in the preceding week) before any public procession is held. But the Commissioner of Police may accept a shorter notice if he is reasonably satisfied that an earlier notice could not be given.

    A notice of the intention to hold a public procession held solely for the purposes of a funeral at which the body is present must be given in writing at least 24 hours before the forming of the procession.

    The notice should include the name, address and telephone number of the organiser and the connected organisation, the purpose and subject-matter of the procession, the date, precise route, time of commencement and duration of the procession, the location, time of commencement and duration of any meeting to be held in conjunction with the procession, and an estimation of the number of people expected to attend the procession.

    In practice, upon receipt of the notice of intention to hold a public meeting, the police will write to enquire the details of the public procession, such as:

    • the nature of the organiser;
    • the experience of the organiser to hold public processions in the past;
    • whether there would be co-organisers and their nature, experience of holding public processions and roles in the proposed public procession;
    • the number of event marshals, their roles, identification marks (such as designated T-shirts) and the method to communicate with them;
    • whether the press have been informed, and if so, the media reporting arrangement;
    • whether amplifiers, banners and other demonstration materials would be used in the meeting and their size and number;
    • whether there would be first aid and beverage supply stations;
    • the theme or themes of the procession;
    • the method to estimate the number of people expected to attend the procession;
    • whether fundraising activities would take place, and if so, whether applications have been made to the relevant authorities;
    • as regards the proposed route, whether relevant authorities (such as the Transport Department or the Highways Department) have been informed and coordination arrangements made;
    • any special arrangements under inclement weather conditions;
    • whether the organiser has bought insurance to cover accidents during the meeting.

    The organiser and the police may meet several times or correspond in writing for several rounds to confirm the details of the proposed meeting. The police may raise specific concerns which the organisers need to address in relation to issues of public order, public safety and the encroachment on rights and freedoms of others which the proposed procession may bring about, before a Notice of No Objection will be issued.

    A notice of intention to hold a public procession is not required if the public procession consists of less than 30 people, does not take place on a public highway or thoroughfare, or in a public park.




    3. Right of Commissioner of Police to prohibit public meetings and object to public processions

    Upon receiving a notice of intention to hold a public meeting or a public procession, the Commissioner of Police may issue a Notice of Prohibition against the holding of a public meeting or a Notice of Objection against the holding of a public procession.

    The Commissioner of Police may prohibit a public meeting of 50 or more people, or object to a public procession of 30 or more people, being held if he considers that it is necessary in the interests of national security, or public safety, public order or the protection of the rights and freedoms of others.

    If a notice of intention to hold a public meeting or a public procession is given to the Commissioner of Police at least one week before the intended date, the Commissioner of Police may not issue a notice of prohibition or a notice of objection later than 48 hours before the commencement of the notified meeting or procession.

    If a notice of intention to hold a public meeting or a public procession is given to the Commissioner of Police 72 hours or more before the holding of the public meeting or procession and accepted by him, the Commissioner of Police may not issue a notice of objection later than 24 hours before the commencement of the notified meeting or procession.

    If a notice of intention to hold a public procession is given to the Commissioner of Police less than 72 hours before the holding of the public procession and accepted by him, the Commissioner of Police may not issue a notice of prohibition or a notice of objection later than the notified commencement time of the procession.

    The Commissioner of Police may prohibit a public meeting or object to a public procession on the grounds of national security or public safety, public order or the protection of the rights and freedoms of others.

    If the Commissioner of Police does not object to a public procession being held, he shall issue a notice of no objection at least 48 hours or 24 hours before the holding of the public procession as the case may be, or before the commencement of the notified procession.

    If the Commission of Police does not issue a notice of no objection within the time required by the Public Order Ordinance, he is taken to have issued a notice of no objection for the public procession.




    4. Imposition of conditions by the Commissioner of Police

    Under the Public Order Ordinance, all public meetings not prohibited and public processions not objected to must meet the following statutory conditions:

    • the organiser of the procession shall be present throughout the procession;
    • good order and public safety is maintained; and
    • the control of any amplification device to be surrendered to a police officer if it causes a noise that would not be tolerated by a reasonable person.

    The Commissioner of Police may not prohibit a public meeting or object to a public procession if the concerns about national security, public safety, public order or protection of the rights and freedom of others may be addressed by imposition of conditions.

  • Any conditions imposed must be given in writing and be reasonably necessary to address the concern of national security or public safety, public order or the protection of the rights and freedoms of others. The Commissioner of Police must provide reasons why the conditions imposed are necessary.

    “Reasonably necessary” means (i) the conditions pursue a legitimate aim of protecting national security, public safety, public order, or the rights and freedoms of others; (ii) the conditions imposed are rationally connected with pursuing those legitimate aims; (iii) the conditions imposed must be no more than necessary for achieving that purpose; and (iv) the conditions imposed must strike a reasonable balance between the societal benefits of the encroachment of freedom of assembly, procession and demonstration, and the inroads made into these constitutionally protected rights. The pursuit of the societal interest should not result in an unacceptably harsh burden on the individual.




    5. Appeal mechanism

    An organiser of public meetings or public processions may appeal to an independent Appeal Board on Public Meetings and Processions against the decision of the Commissioner of Police to prohibit a public meeting, to object to a public procession or to impose conditions on the holding of a public meeting or public procession.

    The Appeal Board consists of three members selected in rotation from a panel of 15 members and is chaired by a retired judge, which can be convened at short notice. While there is no time limit to lodge an appeal, it should be lodged as soon as possible so that a Notice of No Objection can be issued following a successful appeal and in time for the intended public meeting or procession.The Appeal Board is required to act expeditiously so as to ensure that an appeal is not frustrated by the decision being delayed until after the proposed date of public meeting or procession.

    The Chairman of the Appeal Board determines the procedure and practice of an appeal, which are normally informal in nature. In the hearing of an appeal, the appellant and the Commissioner of Police shall be entitled to be heard either in person or through legal representatives. The Board would often encourage dialogues between the appellant and the police in pursuit of a mutual agreement.

    The Appeal Board may, after hearing an appeal, confirm, reverse or vary the prohibition, objection or condition appealed against, and the determination of an appeal board by the Board shall be final. Any further challenge to the Appeal Board’s decision will be by way of judicial review.



    6. General powers of the Commissioner of Police on controlling the conduct of public gatherings

    The Commissioner of Police may give orders to control and direct the conduct of all public gatherings at any public place, and specify the route and time of passage of any public procession, if he considers it necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.

    If the Commissioner of Police reasonably considers it to be necessary to the prevent an imminent threats to the interests of national security or public safety, public order or the protection of the rights and freedoms of others may also give orders to control and direct the extent to which music may be played, or which music or human speech or any other sound may be amplified, broadcast and relayed in or directed towards a public place.




    7. Police powers over meetings, processions and gatherings

    Any police officer of or above the rank of inspector may prohibit the display at a public gathering of any flag, banner or other emblem if such police officer reasonably believes that the display of any flag, banner or emblem is likely to cause or lead to a breach of the peace. Where such a prohibition is issued, any police officer may seize and detain any flag, banner or emblem and may if reasonably necessary enter any premises or places and stop and board any vehicle, tramcar, train or vessel, and use such force as may be necessary for these purposes. Breach of the prohibition may attract a fine at level 2 ($5,000) and imprisonment for 2 years.

    Any police officer may prevent the holding of, stop, or disperse any public meeting or public processions not having been notified to, or contravening of any conditions imposed by, the Commissioner of Police.

    For public meetings of less than 50 people and public processions of less than 30 people, of which prior notification needs not be served to the Commissioner of Police, the Commissioner may still exercise his general power to control meetings, processions and gatherings.

    If the Commissioner of Police reasonably considers it to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others, he may, in such manner as he thinks fit:

    · control and direct the conduct of all public gatherings and specify the route by which, and the time at which, any public procession may pass;

    · control and direct the extent to which music may be played, or to which music or human speech or any other sound may be amplified, broadcast, relayed, or otherwise reproduced by artificial means in public places or towards public places.

    A police officer of at least the rank of inspector may:

    · prevent the holding of, stop, disperse or vary the route of any public gathering whether or not notification to the Commissioner of Police was given.

    · stop or disperse any public gathering exclusively for religious purpose, or any meeting not in a public place, or any type of gathering at any time, if reasonably believes a breach of the peace may result.

    In preventing the holding of, stop, disperse, or vary the route of any public gathering, a police officer may give order as he considers necessary and may use reasonable force and enter any premises or place which the meeting takes place. The police would normally communicate such orders to the public by raising a flag or announcements through loudhailers or speakers.

    A police officer of at least the rank of inspector may by exhibiting notices, erecting physical barriers, by oral announcements, or reasonably necessary force to bar any person’s, or any class of person’s, access to any public place in order to prevent any un-notified public meeting or public procession from taking place.




    C. Questions and Answers




    III. Related offences



    A. Public Order Offences

    1. Unauthorized assembly (S.17A Public Order Ordinance)

    2. Disorder in public places (S.17B Public Order Ordinance)

    3. Unlawful assembly (S.18 Public Order Ordinance)

    4. Riot (S.19 Public Order Ordinance)

    5. Obstruction of public places (S.4A Summary Offences Ordinance)

    6. Entering or remaining in precincts of Chamber of the Legislative Council (S.20 Legislative Council (Powers and Privileges) Ordinance)

    7. Public nuisance

    8. Criminal contempt of court



    1. Unauthorized assembly (S.17A Public Order Ordinance)

    An unauthorised assembly is:

    (1) Any public meeting or public procession that takes place without first having notified the Commissioner of Police, or when having been prohibited to or objected by the Commissioner of the Police;

    (2) A gathering or 3 or more persons taking part or forming part of a public gathering refuse or neglect to obey any order by the police given to:

    · control and direct the conduct of all public gatherings at any public place, or specifying the route and time of passage of any public procession in the interests of national security or public safety, public order or the protection of the rights and freedoms of others;

    · control and direct the extent to which music may be played, or which music or human speech or any other sound may be amplified, broadcast and relayed in or directed towards a public place in order to prevent an imminent threat to the interests of national security or public safety, public order or the protection of the rights and freedoms of others;

    · prevent the holding of, stop, disperse or vary the route of any public gathering whether or not notification to the Commissioner of Police was given; or

    · Stop or disperse any public gathering exclusively for religious purpose, or any meeting not in a public place, or any type of gathering at any time, if reasonably believes a breach of the peace may result.

    (3) A gathering or 3 or more persons taking part or forming part of a public gathering refuse or neglect to obey any order by the police given to control and direct the extent to which music may be played, or which music or human speech or any other sound may be amplified, broadcast and relayed in or directed towards a public place in order to prevent an imminent threat to the interests of national security or public safety, public order or the protection of the rights and freedoms of others.

    The following conduct amount to an offence under section 17A(3) of the Public Order Ordinance and is liable to imprisonment of 5 years on indictment, or a fine of $5,000 and imprisonment of 3 years on summary conviction:

    · Knowingly takes or continues to take part in an unauthorised assembly without lawful authority or reasonable excuse;

    · Holding, convening, organising, forming or collecting, or assisting in the holding etc. of an unauthorised assembly;

    Any organiser or person acting in his place who without reasonable excuse fails to comply with any direction given to him by a police officer to ensure compliance to statutory conditions or conditions imposed by the Commission of Police is liable to a fine of $5,000 and imprisonment of 12 months.




    2. Disorder in public places (S.17B Public Order Ordinance)

    There are 2 offences under s.17B of the Public Order Ordinance:

    · Disorderly conduct for the purpose of preventing the transaction of the business of any public gathering (s.17B(1) Public Order Ordinance); and

    · Disorderly conduct, or using, distributing, or displaying any threatening, abusive or insulting conduct with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused (s.17B(2) Public Order Ordinance).

    Disorderly conduct to prevent the transaction of business is liable to a fine of $5,000 and imprisonment of 12 months.

    “Disorderly, intimidating, insulting or provocative manner”

    what amounts to “disorderly, intimidating, insulting or provocative manner” is a matter of common sense and ordinary meaning of these words. It depends on the time, place and circumstances of the conduct in question.

    “Disorderly conduct” has been interpreted as “unruly or offensive behaviour”, “rough or aggressive behaviour”, or “acting in a way which disrupts public order or is against morality”. It does not need to involve any violence or cause serious disruption of public order.

    “Preventing the transaction of business” in s.17B(1) of the Public Order Ordinance requires that the conduct has made it impossible in practical terms to hold or continue with the gathering.  It would cover situations where the conduct involved would interrupt the intended transaction of the business to an extent beyond what others can be expected to tolerate in a democratic society.  The transaction of business would be substantially impaired instead of being briefly interrupted. However, this offence is made out if the disorderly conduct was done with the intention to prevent the public gathering from happening or continuing.

    Noisy or disorderly conduct, using, distributing, or displaying writing containing threatening, abusive or insulting words with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused under s.17B(2) of the Public Order Ordinance is liable to a fine of $5,000 and imprisonment of 12 months.

    The purpose of this offence is to prevent a person from instigating public disorder involving others. It would exclude situations where the conduct is not likely to produce such violence.

    “With intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused” requires that the conduct is either done with the intention to provoke others to breach the peace or the conduct is such that others will likely react to that conduct with a beach of the peace.

    “Breach of the peace”

    A person commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which threatens immediate danger of injury or damage to property in the presence of the targeted person or the owner of that property.

    Conduct which was peaceful in itself might, if persistently pursued, provoke others to violence. If a violent response could be considered the natural consequence of such persistent conduct, the person who pursued such conduct could be regarded as having committed a breach of the peace.

    A breach of the peace on its own is not a criminal offence but the police can exercise the power of arrest when a breach of the peace occurs and require that the person breaching the peace to be subject to a bind-over order to keep the peace.

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

    This offence focuses on the cause and effect of the conduct involved. Even if the person who acted disorderly has breached the peace would not amount to this offence. The disorderly conduct or the use of threatening, abusive, or insulting words must either intended to cause, or there is a real risk that it would result in, imminent unlawful injury or damage to property.

    The party who might resort to violence as a result of the disorderly conduct etc. need not be the person provoked or a by-stander, it could be someone in the provoker’s group.




    3. Unlawful assembly (S.18 Public Order Ordinance)

    An unlawful assembly is when 3 or more people assemble together and behave in a disorderly, intimidating, insulting or provocative manner that causes a reasonable fear that a breach of the peace may result of that behaviour. The fear of a breach of the peace may be the intention of the people behaving in that manner, or it may be a likely reaction of other people in the nearby the people behaving in that manner. A person convicted with taking part in an unlawful assembly is liable to imprisonment of 5 years on indictment, or a fine of $5,000 and imprisonment of 3 years on summary conviction.

    The Court of Appeal has laid down the sentencing principles of the offence of unlawful assembly: If the case is of a relatively minor nature, such as when the unlawful assembly was unpremeditated, small in scale, involving very little violence, and not causing any bodily harm or damage to property, the court may give proportionally more weight to such factors as the personal circumstances of the offender, his motives or reasons for committing the offence and the sentencing factor of rehabilitation while proportionally less weight to the sentencing factor of deterrence; if the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons for committing the offence and the sentencing factor of rehabilitation. (Secretary for Justice v Wong Chi Fung [2018] HKCFA 4, [123])

    It does not matter whether the assembly started out as a lawful assembly. If 3 or more people in that assembly acted in a disorderly, intimidating, insulting, or provocative manner together and cause a reasonable fear that a breach of the peace may result, it will become an unlawful assembly.

    “Three or more persons, assembled together”

    This element reflects the ‘corporate nature’ of this offence. The unlawful assembly is made up of those who behave in the prescribed manner. Therefore, if there was only one person out of those who assembled together conducted himself in the prescribed manner he could not be guilty of this offence.

    Where a group of people assembled at a location and only three or more amongst them behave in the prescribed manner, it is they, not other members of their group who do not conduct themselves in such manner, who become an unlawful assembly.

    There must be sufficient connection between the conducts of those who behave in the prescribed manner to justify having them considered together. Therefore, if three persons in a lawful assembly committed acts of the prescribed nature at different parts of the place of assembly for different purposes, sparking off different incidents, involving and affecting entirely different mix of persons, there would not sufficient nexus to turn these independent acts into an unlawful assembly. But “sufficient nexus” is only an “important factor” in considering whether those persons were acting together, and evidence of a common purpose is only “the best or one of the most important pieces of evidence” to prove that they were so acting together. A common “purpose” does not require a “common motive”, for example the common purpose to attack police officers qualifies as a “common purpose”.

    “Disorderly, intimidating, insulting or provocative manner”

    What amounts to “disorderly, intimidating, insulting or provocative manner” is a matter of common sense and ordinary meaning of these words. It depends on the time, place and circumstances of the conduct in question.

    “Disorderly conduct” has been interpreted as “unruly or offensive behaviour”, “rough or aggressive behaviour”, or “acting in a way which disrupts public order or is against morality”. It does not need to involve any violence or cause serious disruption of public order.

    “Fear”

    The fear is not about fear as to anyone’s own safety or security. Instead, it is a reasonable fear that a breach of the peace will result. (HKSAR v Leung Kwok Wah [2012] 5 HKLRD 556)




    4. Riot (S.19 Public Order Ordinance)

    A riot is an unlawful assembly where a breach of the peace in fact occurred. Anyone taking part in an unlawful assembly that turned riotous will be considered as taking part in a riot. A person convicted with taking part in a riot is liable to imprisonment of 10 years on indictment, or a fine of $5,000 and imprisonment of 5 years on summary conviction.

    A person commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which threatens immediate danger of injury or damage to property in the presence of the targeted person or the owner of that property.

    Conduct which was peaceful in itself might, if persistently pursued, provoke others to violence. If a violent response could be considered the natural consequence of such persistent conduct, the person who pursued such conduct could be regarded as having committed a breach of the peace.

    A breach of the peace on its own is not a criminal offence but the police can exercise the power of arrest when a breach of the peace occurs and require that the person breaching the peace to be subject to a bind-over order to keep the peace.

    “Commits a breach of the peace”

    As long as there is one person participating in the unlawful assembly, who may or may not be the defendant, who commits a breach of the peace, that unlawful assembly would transform into a riot.

    As long as someone committed violent acts, such as throwing things at police officers, then regardless of whether anyone was injured or whether any property was damaged, he would have committed a breach of the peace.

    “Takes part in a riot”

    In relation to the conduct constituting “taking part in a riot”, there may be different manner and degrees, but the prosecution should prove that, after the unlawful assembly has turned into a riot, the defendant's conduct still possesses the necessary “corporate nature” or “common purpose”, and that the defendants’ conduct should be considered to constitute taking part in the riot (香港特別行政區 訴 楊家倫 (unrep., DCCC 875/2016, 3 April 2017))

    A person only takes part in a riot if he participated in the acts that breached the peace; such participation must be “some individual activity in furtherance of the riot” (香港特別行政區 訴 莫嘉濤 (unrep., DCCC 901/2016, 2 May 2018), [111]). For example, if the act turning an unlawful assembly into a riot is moving in a threatening manner, the defendant must have so moved in order to form the guilty conduct. If the acts turning an unlawful assembly into a riot are comprised of many different acts, such as moving, threatening, using violence and damaging property, the defendant must have participated in some of these acts. However, even if the defendant was simply present, if he supported and/or encouraged others to take part in a riot (i.e. committing acts that breach the peace), and intended to further the riot, then he also “takes part in a riot”.

    The guilty intention of “taking part in a riot” is that the defendant must have an intention to take part in a riot, and recklessness is not a sufficient for this offence. However, the court rejected the defendants’ argument that, in order for someone to take part in a riot, he must not only possess a common purpose together with other rioters, but also intend to assist each other through violence. (香港特別行政區 莫嘉濤 (unrep., DCCC 901/2016, 2 May 2018), [106]-[108])



    5. Obstruction of public places (S.4A Summary Offences Ordinance)

    Anyone who sets out or leaves anything which obstructs, inconveniences or endangers any person or vehicle in a public place shall be liable to a fine of $5,000 or to imprisonment for 3 months.

    Where the obstruction in question results from a peaceful demonstration the court should recognize citizen’s constitutional rights to peaceful demonstration and give it substantial weight in the balancing exercise. What is reasonable must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.



    6. Entering or remaining in precincts of Chamber of the Legislative Council (S.20 Legislative Council (Powers and Privileges) Ordinance)

    Any person who enters or attempts to enter the Legislative Council Chamber or its precincts in contravention of any of the Rules of Procedure, any resolution of the Council, or any Administrative Instructions issued by the President of the Legislative Council is liable to a fine of $2,000 and to imprisonment for 3 months.

    The offence of entering or remaining in the precincts of the Legislative Council Chamber does not apply to members of the Legislative Council, anyone acting within the precincts of the Chamber under the orders of the Legislative Council President, and police officers on duty within the precincts of the Chamber.

    “Chamber” of the Legislative Council includes the chamber where Legislative Council proceedings are being conducted, any galleries and places provided for the public and the media, and any lobbies, offices or precincts used exclusively in connection with the proceedings of the Legislative Council.

    “Precincts of the Chamber” covers the entire building in which the Chamber is situated and any forecourt, yard, garden, enclosure, or open space adjoining or appertaining to that building and provided for the Legislative Council to use. This extended area is only applicable for the whole of any day the Legislative Council or its committee is sitting.

    The President of the Legislative Council may regulate the admittance and conduct of the public (other than members or officers of the members of the Legislative Council) by way issuing administrative instructions. Contravening these Administrative Instructions would amount to an offence under section 20 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).

    Offences in contravention of Administrative Instructions for Regulating Admittance and Conduct of Persons (Cap. 382A) include failing to behave in an orderly manner when entering or within the precincts of the Chamber, failing to comply with any direction given by any officer of the Council for the purposes of keeping order, and displaying any sign, message or banner, including on any item of clothing, in the press or public gallery.



    7. Public nuisance

    A public nuisance is a common law offence. It is committed by doing an act not warranted by law, or omitting to discharge a legal duty, and the effect of such act or omission was to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone. The offence of public nuisance covers a wide and diverse range of activities, such as obstructing public highways or public places and roads. The maximum penalty is imprisonment for 7 years and a fine (s.101I(1), Criminal Procedure Ordinance (Cap. 221))

    In acting or omitting to act, the defendant knew, or ought to have known the consequence of what he did or omitted to do.

    It is necessary for the prosecution to prove that the public, opr a class of the public, would be obstructed in the exercise of rights common to everyone, for example, the use of public carriageways, and that the suffering of common injury by members of the public by interference with rights enjoyed by them as a class of the public.

    Where a case concerns citizens’ exercising of their right of free speech, right of assembly and right of demonstration, the court will consider whether the demonstrators’ conduct impinged unreasonably on the rights of others and whether the demonstration involves a reasonable use of the highway or public places.

    The reasonableness test is essentially a question of fact and degree depending on all the circumstances, including the extent and duration of the obstruction, the time and place where the obstruction occurs, as well as the purpose for which the obstruction is done.

    Where the obstruction in question results from a peaceful demonstration the court should recognize citizen’s constitutional rights to peaceful demonstration and give it substantial weight in the balancing exercise. What is reasonable must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.

    The right to express views extends to the manner in which the protestors wish to express their views as well as the location(s) where they wish to do so, such as on the pavements or plazas outside government buildings or embassies.




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    B. Offences Involving Weapons & Prohibited Items

    1. Prohibition of offensive weapons at public meetings and processions (S.33 Public Order Ordinance)

    2. Possession of offensive weapon with intent (s.17 Summary Offences Ordinance)

    3. Making or possession of explosives (s.55 Crimes Ordinance)

    4. Using facial covering to prevent identification (s.3 Prohibition on Face Covering Regulation)

    5. Failure to remove facial covering (s.5 Prohibition on Face Covering Regulation)

    6. Questions and answers



    1. Prohibition of offensive weapons at public meetings and processions (S.33 Public Order Ordinance)

    Anyone who has with him any offensive weapon during any public meeting or public procession without lawful authority or reasonable excuse shall be guilty of possession of offence weapon in public place. A person convicted with possession of offence weapon in public place is liable to imprisonment of 3 years.

    “Offensive weapon”

    Offensive weapon means any article made, or adapted for use, or intended for causing injury to the person. Apart from traditional weapons such as knives, other items such as extendable batons and petrol bombs can also be caught by this offence.

    Even where an item is not an offensive weapon by itself, it can become an offensive weapon by reason of the intention of the possessor to use it as an offensive weapon.



    2. Possession of offensive weapon with intent (s.17 Summary Offences Ordinance)

    Anyone who has in his possession any wrist restraint or other instrument manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use for any unlawful purpose, is liable to a fine of $5,000 or to imprisonment for 2 years.

    Offensive weapon means any article made, or adapted for use, or intended for causing injury to the person.

    Even where an item is not an offensive weapon by itself, it can become an offensive weapon by reason of the intention of the possessor to use it as an offensive weapon.

    The offence under this provision is not just targeted at offensive weapons but also handcuffs and other items used to restraining a person, and other items that can be used for unlawful purposes. Considering the specified items listed in this provision, e.g. crowbar, picklock etc., items that will assist in breaking into premises or vehicles will also likely be caught by this offence.



    3. Making or possession of explosives (s.55 Crimes Ordinance)

    Anyone who makes or knowingly has in his possession, an explosive substance is liable to imprisonment for 14 years unless he can show that he has made it or possess it for a lawful object.

    If it is proved that the person charged knows that he is in possession of a thing containing an explosive substance, he is presumed to know that he is in possession of an explosive substance.

    “Explosive substance” includes any materials for making any explosive substance, any equipment or part of equipment intended to be used, adapted for causing explosion.

    The definition of “explosive substance” as it stands now can cover substances that “detonate” or “explode” in its ordinary sense (such as a pipe bomb) and substances that produced a “pyrotechnic effect” (such as smoke bombs which produce intense heat and smoke).



    4. Using facial covering to prevent identification (s.3 Prohibition on Face Covering Regulation)

    Anyone who uses any facial covering that is likely to prevent identification while he is at an unlawful assembly, unauthorised assembly, or in a public meeting or public procession where a Notice of No Objection has been issued is liable to a maximum fine of $25,000 and imprisonment for 1 year.

    “Facial covering” includes masks or any other article of any kind (including paint) that covers all or part of a person’s face.

    It will be defence for this offence if it can be established that there is lawful authority or reasonable excuse for using a facial covering. A “reasonable excuse” would include the person wearing the facial covering was engaged in a profession or employment and the facial covering was worn for his physical safety while performing an act connection with his profession or employment; the facial covering was worn for religious reasons; or the facial covering was used for a pre-existing medical or health reason.



    5. Failure to remove facial covering (s.5 Prohibition on Face Covering Regulation)

    If a police officer reasonably believes that a person is wearing a facial covering in a public place to that is likely to prevent identification, the police may stop and require that person to remove the facial covering in order to verify the identity of that person.

    If a person fails to remove facial covering when required to do so by a police officer, that police officer may remove the facial covering in order to verify the identity of that person.

    Anyone who fails to remove facial covering when required to do so by a police officer is liable to a maximum fine of $10,000 and imprisonment for 6 months.



    6. Questions and answers

    What are the differences between the offences of possession of offensive weapons at public meetings and processions (s.33 Public Order Ordinance) and possession of offensive weapon with intent (s.17 Summary Offences Ordinance)?

    The scope of prohibited items under s.17 of the Summary Offences Ordinance is wider than that under s.33 of the Public Order Ordinance. S.17 of the Summary Offences Ordinance also prohibits items that are strictly speaking not offensive weapons but instead items used to restrain another person (e.g. handcuffs), items that can be used to cause property damage (e.g. crowbar), and items that can be used to gain

    Both sections provide for the similar prohibition to carry offensive weapons in public, with s.17 of the Summary Offences Ordinance carrying a lesser sentence. However, it is within the discretion of the prosecutorial authority to choose which section under which a charge will be laid.

    Also, the s.33 of the Public Order Ordinance offence is an excepted offence, which means the Courts are not allowed to pass a suspended sentence on a convicted defendant while the s.17 of the Summary Offences Ordinance is not an excepted offence.



    C. Offences against Public Officers

    1. Resisting or obstructing a public officer or other person lawfully engaged in a public duty (S.23 Summary Offences Ordinance)

    2. Assaulting police officer in execution of duty (S.63 Police Force Ordinance)

    3. Assaulting, resisting, obstructing a police officer (S.36(b) Offences against the Person Ordinance)



    1. Resisting or obstructing a public officer or other person lawfully engaged in a public duty (S.23 Summary Offences Ordinance)

    Anyone who resists or obstructs a public officer or other person lawfully engaged in the performance of any public duty is liable to a fine of $1,000 and to imprisonment for 6 months. It is necessary for the prosecution must prove that the public officer was lawfully apprehending a defendant. If the apprehension was not lawful, he was not in the execution of his duty.



    2. Assaulting police officer in execution of duty (S.63 Police Force Ordinance)

    Under section 63 of the Police Force Ordinance, a person commits an offence and will be liable to a fine of $5,000 and to imprisonment for 6 months if he does the following acts.

    · Assaulting or resisting any police officer in the execution of his duty;

    · Refusing to assist any such officer in the execution of his duty when called upon to do so;

    · By the giving false information with intent to defeat or delay the ends of justice, wilfully misleads or attempts to mislead any police officer.

    If it cannot be shown that the assault or resistance is sustained whilst the officer is in execution of his duty, the charge cannot be made out. For example, where there is no evidence that the arrest of a suspect was lawful, he could not be charged for having assaulted a police officer in the execution of his duty. It has been established in England that where a police officer physically restrains a person, but does not at that time intend or purport to arrest him, then the officer commits an assault, even if an arrest would have been justified; accordingly, an assault by a defendant in such circumstances is not an assault committed on a police officer acting in the due exercise of his duty, but Hong Kong courts have not ruled on this issue yet.

    An “assault” is an act, and not just a mere omission to act, by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence.



    3. Assaulting, resisting, obstructing a police officer (S.36(b) Offences against the Person Ordinance)

    Any person who assaults, resists, or wilfully obstructs a police officer in due execution of duty, or any person acting his aid is liable to imprisonment for 2 years.

    It is not necessary for the prosecution to prove the knowledge of the accused that the person assaulted was a police officer or the officer was in the execution of his duty. (R v Forbes and Webb (1865) 10 Cox 362). However, if the defendant had a genuine belief either that the victim was not a police officer or in the existence of circumstances which would mean the officer was not acting in the course of duty, the general principle relating to mens rea and mistake of fact should apply and the defendant’s liability should be judged on the basis of that belief. For example, genuine and reasonable belief that the victim was a thug and not a police officer, would be highly material in judging the reasonableness of resistance exerted and the degree of force falling within the liberty or justification of self-defence. (Kenlin v Gardiner [1967] 2 QB 510) (See Archbold 2019, 20-285)

    “Assault” covers both actual physical contact and mere threats causing the target of such threat to fear that he will face immediate physical harm.

    “Wilfully Obstructs”

    What amounts to wilful obstruction depends on the circumstances including what the person had done and how it was done, what the police officer was doing, and the effect of what the person had done on what the police officer was doing.

    The person accused of wilfully obstructing a police officer must be aware that the police officer is discharging his duties and deliberately does an act to obstruct the discharge of those duties.

    It does not cover conduct that might cause mere inconvenience to the police officer or require him to expend trifling additional effort. But the conduct does not need to make the police officer’s work substantially more difficult.

    Private citizens have a moral duty or social duty to assist police officers but there will be situations where co-operation is not readily forthcoming such as exercising the right to silence, seeking clarification from the police officer as to what is the matter of concern or seeking clarification of what is expected or required of him, reasoning with the police officer and trying to persuade the police officer that there was a mistake, protecting or advising a relative or close friend who is being questioned by the police officer, having other more urgent matters to attend to for the time being etc.



    D. Offences against Property

    1. Criminal damage (S.60 Crimes Ordinance)

    2. Threats to destroy or damage property (S.61 Crimes Ordinance)

    3. Possessing anything with intent to destroy or damage property (S.62 Crimes Ordinance)

    4. Forcible entry (S.23 Public Order Ordinance)



    1. Criminal damage (S.60 Crimes Ordinance)

    A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage it or being reckless as to whether it would be destroyed or damaged is liable to imprisonment for 10 years.

    If a person destroys or damages any property, whether belonging to himself or another, intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged, and intending to endanger the life of another or being reckless as to whether the life of another would be thereby endangered is also guilty of this offence and is liable to imprisonment for life.

    It is necessary to prove that the danger to life results from the destruction of or damage to the property rather than simply proving that it resulted from the act which caused the destruction or damage.

    “Damage” is very widely defined for the purposes of this offence. In addition to physical harm, it also covers any injury that impairs the value or usefulness of property. The damage may be temporary or permanent, and it does not have to be tangible. Examples of damage includes taking away a part of or disabling something so as to make it temporarily useless, applying water-soluble paint on a pavement, and smearing mud of the wall of a building.



    2. Threats to destroy or damage property (S.61 Crimes Ordinance)

    If a person threatens to destroy or damage any property belonging to another person or a third person with the intention the person threatened would fear that the threat would be carried out, or threatens to destroy or damage his own property in a way which he knows is likely to endanger the life of another person or a third person is liable to imprisonment for 10 years.




    3. Possessing anything with intent to destroy or damage property (S.62 Crimes Ordinance)

    If a person has anything in his custody or under his control and intends to have it used whether by himself or others to destroy or damage any property belonging to some other person, or to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person is liable to imprisonment for 10 years.



    4. Forcible entry (S.23 Public Order Ordinance)

    If a person enters into any premises, whether or not he is entitled to enter the premises, in a violent manner, he is liable to a fine of $5,000 and imprisonment for 2 years.

    This offence is committed whether or not the violence used consists in actual force applied to another person, or in threats, or in breaking open any building, or in collecting an unusual number of people.

    If a person uses force to enter his own premises that are in his possession or in the custody of his servant of agent, he will not be liable for this offence.



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