HKSAR v Lai Chee Ying (Unauthorized Assembly) (No 2) [2024] 3 HKC 578, [2024] HKCFA 4

Robert Pang SC and Simon Kwok represented the 6^th and 8^th defendants in HKSAR v Lai Chee Ying (Unauthorized Assembly) (No 2) [2024] 3 HKC 578, [2024] HKCFA 4.

The defendants were charged with organizing an unauthorized assembly (Charge 1) and with knowingly taking part in an unauthorized assembly (Charge 2), in relation to a public procession that took place in the afternoon of 18 August 2019 from Victoria Park in Causeway Bay to Chater Road in Central. The Commissioner of Police objected to the holding of the procession when the Civil Human Rights Front presented a notification to the police. The Appeal Board of Public Meetings and Processions upheld the Commissioner’s decision. There was no application for judicial review against the decision of the Appeal Board. The Civil Human Rights Front then publicized that the public should come and fill up Victoria Park and that the meeting would be conducted by a ‘water-flow pattern’ and pro-democracy councillors would lead participants to leave Victoria Park. A procession did take place at 3:09 pm on 18 August 2019. The defendants led a huge crowd and carried a large banner printed with the words, ‘Stop the police and gangsters from plunging Hong Kong into chaos, implement the five demands’.

The applicants were convicted after trial in the District Court, with the trial judge finding that there was an unauthorized public assembly from Victoria Park to Chater Road organized for a common purpose as set out in writing on the banner; that the applicants ‘organized’ the unauthorised assembly because they ‘formed the banner party’ and ‘agreed to be the head of the procession and led the direction in which the procession was to proceed’; and that in light of the widely broadcast police objections beforehand, the applicants’ words and/or conduct prior to and during the procession and the fact that the applicants well known political figures and lawyers, they knowingly took part in the procession ‘in direct defiance of the police ban’ and with an intention ‘to deliberately flout the law openly’ and without reasonable excuse. The trial judge also rejected a systemic proportionality challenge of the regulatory regime of public processions under the Public Order Ordinance, as well as an operational proportionality challenge of the police ban of the procession ([2021] HKDC 398 ; [2021] HKCU 1449). The defendants’ appeals to the Court of Appeal were successful against the convictions on Charge 1 of organizing an unauthorized assembly but unsuccessful against the conviction on Charge 2 of knowingly taking part in an unauthorized assembly ([2023] 6 HKC 321 ; [2023] 4 HKLRD 484 ; [2023] HKCA 971). The defendants obtained a certificate from the Court of Appeal on the point of law of whether the court can or should assess the operational proportionality on the facts and circumstances of each case before convicting or sentencing a defendant for knowingly taking part in an unauthorized assembly. The defendants applied for leave to appeal to the Court of Final Appeal against the dismissal of their appeals against the convictions of Charge 2 of knowingly taking part in an unauthorized assembly. The prosecution applied for leave to appeal to the Court of Final Appeal against the allowing of the defendants’ appeals against the convictions of Charge 1 of organizing an unauthorized assembly. Some defendants also sought leave to final appeal against conviction or sentence on the ground that a substantial and grave injustice had been done.

Held, unanimously, granting leave to appeal to the defendants only on the question certified by the Court of Appeal, and dismissing the other applications of the defendants and of the prosecution:

Per Ribeiro PJ

• (1) The certified question of ‘[Whether] the Court should follow the persuasive, though not binding, decision(s) of the Supreme Court of the United Kingdom in DPP v Zieglerand/or Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill (which clarified some aspects of Ziegler) and, if so, in what circumstances, and to what extent, it should conduct an operational proportionality exercise’ raised issues of great and general importance which would benefit from consideration by the Court of Final Appeal (para 4).
• (2) The prosecution’s application for leave to appeal was not reasonably arguable and should be refused. The proposition that the meaning of ‘organize’ under s 17A of the Public Order Ordinance (Cap 245) should reflect the dictum in Flockhart v Robinson that a person ‘who organizes the route is the person who organizes the procession’ was not well founded. In light of the circumstances involved in Flockhart v Robinson, the dictum could not be treated as providing a definition of the word ‘organize’ for present purposes. Rather, the word ‘organize’ was not a term of art and had no specialized, technical or legal meaning. It was an ordinary English word, generally connoting some responsibility for, or active participation in, arranging, planning or managing, an action or event. The other proposition that since, on the evidence, the defendants had led the procession throughout, it was right to hold that they had ‘organized’ the march was also not well founded. Flockhart v Robinson was entirely distinguishable on the facts. The evidence of the present case of the defendants marching at the head of the procession which had been planned and notified by the Civil Human Rights Front, following a particular route, holding the banner and chanting slogans did not support the inference that the defendants had organized the procession (as opposed to taking part in it). Flockhart v Robinson [1950] 2 KB 498 distinguished (paras 13-17).
• (3) Charge 2 simply required the prosecution to prove that (i) there was an unauthorized procession; and (ii) that each defendant had knowingly taken part in it (iii) without lawful authority or reasonable excuse. The defendant’s challenge that it was not an unauthorized procession but merely an orderly dispersal of the earlier meeting was carefully and convincingly rejected by the trial judge, who also found that the necessary mens reawas proved and that there was no lawful authority or reasonable excuse (paras 18-23).
• (4) The defendants’ submission against the constitutionality of s 17A(3) of the Public Order Ordinance was not reasonably arguable. The statutory maximum penalty for the offence under s 17A(3)(a) gave the court a discretion as to possible sentences ranging from non-custodial measures to the five-year maximum (only on a trial on indictment). There was no basis for saying that such a provision made the offence systemically disproportionate. In any event, the Court of Final Appeal implicitly accepted the systemic proportionality of the offences under s 17A(3) in Leung Kwok Hung & Ors v HKSARand no basis had been made out for that conclusion to be re-visited. Leung Kwok Hung & Ors v HKSAR [2005] 3 HKLRD 164 ; (2005) 8 HKCFAR 229 ; [2005] HKCU 887; and Leung Kwok Hung v Secretary for Justice (No 2) [2020] 3 HKC 83 ; [2020] 2 HKLRD 771 ; [2020] HKCA 192 considered (paras 27-34).
• (5) It was only in the extremely rare and exceptional case where an important question of sentencing principle arose that the Court of Final Appeal may contemplate entertaining an appeal in respect of sentence. Chu Yiu Keung v HKSAR [2011] 6 HKC 87; and Secretary for Justice v Wong Chi Fung [2018] 2 HKC 50 ; (2018) 21 HKCFAR 35 ; [2018] HKCFA 4 followed (para 40).

[The above is excerpted from the headnote to the report in HKC.]