HKSAR v Fu Chi On [2024] 3 HKLRD 455, [2022] HKCFI 1895

Jonathan Ip and Jay Koon represented the 4^th appellant in HKSAR v Fu Chi On [2024] 3 HKLRD 455, [2022] HKCFI 1895.

D1-4 (Ds) were convicted after trial of taking part in an unlawful assembly, contrary to s.18(1) and (3) of the Public Order Ordinance (Cap.245). The prosecution case was that on the evening of 25 December 2019, Ds participated in a procession of some 100 people at a shopping plaza. The persons assembled, wearing mainly black, walked in circles passing by shops on various floors and shouted slogans about the police including “Black cops, may your whole family die” and slogans directed at certain shops such as “he who eats at [a particular shop] is heartless”; and some made speeches relating to the Anti-Extradition Law Amendment Bill Movement. Some of the shops lowered their shutters. Police arrived and issued warnings to disperse. The persons assembled then scattered. D1-3 were arrested at the scene. Ds appealed against their convictions, contending, inter alia, that: (i) the slogans chanted by the participants in the procession fell within the protection of freedom of speech and expression under art.16 of the Hong Kong Bill of Rights and art.27 of the Basic Law; (ii) Ds did not conduct themselves in a disorderly, insulting or provocative manner within s.18(1) of the Ordinance; (iii) Ds’ conduct was not likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace, or would by such conduct provoke other persons to commit a breach of the peace within s.18(1); and (iv) the Magistrate erred in the identification of D4, who was not arrested at the scene but was alleged to be seen from footage captured from the scene. He was intercepted by the police a few days after the incident, and the prosecution sought to identify D4 by a comparison of the video footages captured on that day and the footage captured on the day of the incident.

Held, dismissing the appeals, that:

Freedom of speech or expression

• (1) The essence of freedom of speech or expression included not only the content of expression but also the means of expression. It encompassed non-mainstream, unpopular, offensive or even heretical views and means of expression (HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442 applied). (See paras.97, 101.)
• (2) The offence involved satisfied all the conditions of the test of constitutionality, including proportionality. (See para.105.)
• (3) As a matter of operational proportionality, if it was only a small number of participants deviating from the approved route of procession without any conduct or behaviour causing serious disruption to public order, an order for the stop or dispersal of the gathering would not be compatible with the principle of proportionality on an operational level, and the authorities would need to consider whether there were any other measures which were compatible with the principle of proportionality to deal with the situation (Kudrevicius v Lithuania (2016) 62 EHRR 34, Leung Kwok Hung v Secretary for Justice (No 2) [2020] 2 HKLRD 771 considered). (See paras.112-114.)
• (4) In the circumstances of this case, taking action to enforce the law would not fail the proportionality test. (See para.115.)

Elements of the offence of unlawful assembly

• (5) The Court of Final Appeal made a determination on the elements of the offence and the matters that had to be proved in HKSAR v Lo Kin Man, which was applicable to this case (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 applied). (See para.86.)
• (6) If it could be proved beyond reasonable doubt that, where three or more persons assembled together, there was “the prohibited conduct”, then it was proved that there was an unlawful assembly. “The prohibited conduct” was a combination of “the prescribed conduct” and “the stipulated fear”, as set out in Holdings 7 and 8 below. It was the duty of a tribunal of fact to assess on the evidence whether the prosecution had proved “the prohibited conduct”, having regard to the background, nature and overall circumstances surrounding the case in the course of consideration, in particular, to assess whether “the stipulated fear”, if any, was reasonable, and to assess whether a balance in safeguarding the rights of the parties when “the prohibited conduct” arose had been struck (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 applied). (See paras.86, 106-107.)
• (7) “The prescribed conduct” meant conduct which was disorderly, intimidating, insulting or provocative. The meaning of each of these words had been discussed in various authorities set out in paras.119-123 of this Judgment (Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556, HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, Secretary for Justice v Chung Ka Ho [2021] 2 HKLRD 1354 applied). (See paras.118-123.)
• (8) “The stipulated fear” meant fear of a breach of the peace. The essence of the concept of “breach of the peace” was to use actual violence or threatened violence on another person or his property, or to cause people reasonably to fear that violence would occur. The relevant principles had been discussed in various authorities set out in paras.126-148 of this Judgment (R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105, Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556, HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, HKSAR v Wong Yeung Tat [2016] 4 HKLRD 445, HKSAR v Ng Man Yuen Avery [2021] 2 HKLRD 1111, HKSAR v Leung Chung Hang Sixtus (2021) 24 HKCFAR 164, HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 applied). (See paras.125-148.)
• (9) Upon review of all relevant circumstances, the slogans chanted by the protesters were insulting. Some of the slogans had the effect of provocation as well. There were people in the procession “conducting themselves in the prescribed manner”. Such conduct was also likely to cause someone to have the “stipulated fear”: the only reasonable inference supported by the evidence was that during the entire course of the procession, even if those present at the scene appreciated that this was a demonstration and showed proper tolerance, in the context of the overall circumstances at that time, it would be logical and reasonable for someone to fear that there would be an imminent breach of the peace. (See paras.152-153, 177-178.)

Identification of D4

• (10) The images of the relevant footage were of high clarity and what was shown could be seen clearly. A jury may make its own identification from the video footage. The tribunal of fact may determine the identity of the person in the footage based on a comparison of the footage (AG’s Reference (No 2 of 2002) [2003] 1 Cr App R 21, HKSAR v Kwok Kin Ming, Timothy [2020] HKCA 543 applied). (See para.207)
• (11) Even if the quality of the identification evidence was unsatisfactory, provided that there was circumstantial evidence capable of supporting the inference that the accused was the offender in the case, the tribunal of fact may take that into account. If the evidence as a whole was sufficient to prove that the accused was the offender, the conviction was safe. There may not be a single piece of evidence capable of supporting a safe conviction in a case, but a number of pieces of evidence, taken together, may lead to a conclusion of guilt with certainty (HKSAR v Tsang Chi Wai (transliteration) (CACC 384/2012, [2013] CHKEC 1129) applied). (See paras.240-241.)
• (12) Upon consideration of the video footages and the circumstantial evidence, this Court agreed with the Magistrate that the subject person in the footages was D4. (See paras.236, 239, 246.)

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