HKSAR v Tai Yiu Ting [2021] 2 HKLRD 899, [2021] HKCA 630

 

On 27 March 2013, D1 – 3 (the Trio) formally announced a campaign, the goal of which was to achieve universal suffrage for the election of Hong Kong’s Chief Executive (the Campaign). A critical component of the Campaign was the “occupation” of areas in Central by protestors in pursuit of this goal, dubbed “Occupy Central”. The Trio spent time thereafter publicising the Campaign. On 31 August 2014, the National People’s Congress Standing Committee made what came to be known as the “831 decision”, concerning the election of the Chief Executive, and protests were held in its wake. On 18 September 2014, D3 filed a notice to police to hold a public meeting in Central, particularised as an assembly on Chater Road between 1 – 3 October 2014 (the Notice). Ultimately, that assembly did not take place. Other public meetings took place on 26 – 27 September 2014 on Tim Mei Avenue, near the Central Government Offices (the CGO). The number of protestors on Tim Mei Avenue swelled during this period and, by midnight on 27 September 2014, Tim Mei Avenue was fully occupied with people and use of the carriageways by vehicles had been suspended. During the period 27 – 28 September 2014, statements were made from a stage on Tim Mei Avenue by D1 and D4 – 7 individually to “over-cram” Tim Mei Avenue and other locations. Variously, when such statements were made, other defendants, including D1 – 7, were present on stage with the maker of the statement. In the early hours of 28 September 2014, the Trio appeared on stage at Tim Mei Avenue and D1 made a formal declaration that the “Occupy Central Movement” had commenced to the crowd (the Announcement). What followed was an “occupation” of roads nearby to the CGO by protestors which was not completely dispersed until early December 2014. On 28 September 2014, D8 was present on Fenwick Pier Street with a separate group. At this time, D8 made statements to the crowd, including that they should “counter-besiege” police. When a fire engine attempted to pass through that street, D8 instructed marshals to make enquiries with the firemen, which caused a delay for the attendance of the fire engine at an incident and resulted in the fire engine rerouting its trip. D9 appeared on Harcourt Road and made statements to the crowd at that location to walk out onto the road and sit there as an act of civil disobedience, and also to “counter-besiege” the police. The Trio were convicted in the District Court of a joint conspiracy to commit public nuisance, the Trial Judge finding that a conspiracy to cause a public nuisance by obstructing public places and roads in or in the neighbourhood of Central, consistent with the “occupation” component of the Campaign, was formed when D3 filed the Notice and that the conspiracy was merely modified when D1 made the Announcement. D1 – 2 and D4 – 7 were convicted of incitement to commit public nuisance, and D4 – 7 were convicted of incitement to incite public nuisance, either for statements made to the crowd at Tim Mei Avenue by those defendants individually or on the basis of joint enterprise for occasions on which each was present for statements made by others on the stage between 27 – 28 September 2014. D8 was convicted of incitement to commit public nuisance and incitement to incite public nuisance. Finally, D9 was convicted of incitement to commit public nuisance. Ds each sought leave to appeal against their convictions. D1 and D8 also sought leave to appeal against sentence.

Held, dismissing Ds’ applications for leave to appeal against conviction, and D1 and D8’s applications for leave to appeal against sentence, and dismissing the appeals, that:

 

(1) The fact that the conspiracy began with an occupation of Tim Mei Avenue instead of Chater Road did not mean there were two different conspiracies. All that happened was that the actual obstruction and resulting public nuisance was caused in one road rather than another in or in the neighbourhood of Central (R v Saffron (1988) 17 NSWLR 395 applied). (See paras.119 – 126.)

 

(2) It could not be accepted that the Trio, having planned the Campaign for some 18 months, and having seen how events had unfolded on Tim Mei Avenue, did not knowingly conspire to commit, or incite, a public nuisance on the basis that the reasonableness or unreasonableness of an obstruction of public roads could not be assessed in advance. To suggest that Ds could not have known, or could not have intended, the consequences of their actions in advance was to surrender reality and common sense to an abstract and theoretical notion of the reasonable exercise of individual rights (Ineos Upstream Ltd v Persons Unknown [2019] 4 WLR 100 doubted). (See paras.128 – 130.)

 

(3) The argument that the prosecution should have charged an offence of conspiracy to incite rather than a conspiracy to cause public nuisance was rejected. The conspiracy had all along been that thousands would be involved in the eventual occupation. The Trio must have known that such an occupation would inevitably cause a public nuisance (R v Stockli [2018] 1 WLR 5609 considered). (See paras.132 – 134, 139.)

 

(4) Given the magnitude of the illegal obstruction in question and the seriousness and extent of the offending, a charge of a substantive obstruction offence under s.4(28) of the Summary Offences Ordinance (Cap.228) was not a realistic or suitable alternative to the common law offence of public nuisance (R v Stockli [2018] 1 WLR 5609 applied; R v Rimmington [2006] 1 AC 459, HKSAR v Pearce [2009] 5 HKLRD 1 considered). (See paras.135 – 139.)

 

(5) The offence of public nuisance, in the present context of “civil disobedience” by demonstrations on public highways, was not legally uncertain given Ds knew in advance that the obstruction would be unreasonable and therefore unlawful (Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386 applied; HKSAR v Yeung May Wan [2004] 3 HKLRD 797, Yeung May Wan v HKSAR (2005) 8 HKCFAR 137, R v Rimmington [2006] 1 AC 459, Leung Tsang Hung v Incorporated Owners of Kwok Wing House(2007) 10 HKCFAR 480 considered). (See paras.140 – 148.)

 

(6) Any residual argument that the Trio may not have known that what was being caused or incited was anything less than a public nuisance was disposed of by the specific findings by the Trial Judge that they in fact knew what the consequences of their actions would be before they announced the commencement of the occupation (R v Rimmington [2006] 1 AC 459 applied). (See para.148.)

 

(7) There was no reason why the offence of incitement to incite should not be both justiciable and constitutional under Hong Kong law (R v Mohammad Sirat [1986] Crim LR 245 applied; R v Kong Yue Kwai [1996] 4 HKC 709 referred to). (See paras.149 – 150.)

 

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

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