IpsofactoJ.com: International Cases [2005A] Part 7 Case 10 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Yeung

- vs -

Hong Kong SAR

CHIEF JUSTICE ANDREW LI

MR JUSTICE KEMAL BOKHARY PJ

MR JUSTICE PATRICK CHAN PJ

MR JUSTICE R.A.V. RIBEIRO PJ

SIR ANTHONY MASON NPJ

5 MAY 2005


Judgment

Chief Justice Andrew Li

(delivered the judgment of the Court)

  1. The freedom to demonstrate is a constitutional right. It is closely associated with the freedom of speech. These freedoms of course involve the freedom to express views which may be found to be disagreeable or even offensive to others or which may be critical of persons in authority. These freedoms are at the heart of Hong Kong’s system and it is well established that the courts should give a generous interpretation to the constitutional guarantees for these freedoms in order to give to Hong Kong residents their full measure.

  2. In this case, the appellants were engaged in a peaceful demonstration in exercise of their constitutional right. This appeal concerns the extent of their right to do so on a public highway and the scope of police powers to curtail a demonstration on the ground that such persons were causing an obstruction.

  3. The demonstration in question took place on 14 March 2002 on the public pavement outside the main entrance to the Liaison Office of the Central People’s Government at No 160 Connaught Road West (“No 160”). The demonstrators were members of an association known as the Falun Gong and the number of persons taking part varied from four to 16. Following upon the events described more fully below, all 16 demonstrators were arrested by the police.

    THE CHARGES

  4. All of them were charged with obstruction of a public place contrary to s 4A of the Summary Offences Ordinance, Cap 228 (“the first charge”) which materially provides as follows:

    Any person who without lawful authority or excuse sets out .... any matter or thing which obstructs, inconveniences or endangers, or may obstruct, inconvenience or endanger, any person .... in a public place shall be liable to a fine of $5000 or to imprisonment for 3 months.

    The particulars charged were that, at the relevant location, the defendants:

    .... without lawful authority or excuse, set out a banner of about 5 feet x 10 feet which might obstruct, inconvenience or endanger persons in the said public place.

  5. All 16 defendants were also charged with a public place obstruction offence under s 4(28) of the same Ordinance (“the second charge”) which is relevantly in the following terms:

    Any person who without lawful authority or excuse .... does any act whereby .... obstruction, whether directly or consequentially, may accrue to a public place .... shall be liable to a fine of $500 or to imprisonment for 3 months.

    The particulars alleged that, at the relevant location, the defendants:

    .... did an act, namely assembling together and displaying a banner of about 5 feet x 10 feet outside the said entrance, whereby obstruction, whether directly or consequentially, might accrue to a public place.

  6. After being arrested and taken in police vehicles to the nearby Western Police Station (“WPS”), some of the defendants refused to alight and resisted being removed from those vehicles. Some of them also resisted being subjected to routine processing procedures inside the station. This led to nine of the defendants, including all eight of the present appellants, being charged with wilfully obstructing a police officer contrary to s 36(b) of the Offences Against the Person Ordinance, Cap 212 (“the third charge”). That section materially provides:

    Any person who .... wilfully obstructs any police officer in the due execution of his duty .... shall be guilty of an offence .... and shall be liable to imprisonment for 2 years.

    The particulars were that the relevant defendants had:

    .... on board the vehicle AM8258 at Western Police Station, .... wilfully obstructed Inspector Ho Ming-yan, a police officer ...., in the due execution of his duty.

  7. The fourth charge was brought against Madam Lu Jie, the 2nd appellant. It was alleged that, while on board the police vehicle, she committed an assault against Woman Police Constable Wong Mei-po (WPC1453), a police officer acting in the execution of her duty, contrary to s 63 of the Police Force Ordinance, Cap 232. The 2nd appellant was accused of biting the constable on her forearm.

  8. The fifth and sixth charges were also brought under s 63. They were preferred against Madam Lau Yuk-ling (the 6th appellant), it being alleged that while on board the police vehicle, and also in the station car park, she committed two separate assaults against police officers, namely WPC Wong Mei-po (mentioned above) and Chan Wai-man (WPC56952) respectively, each acting in the due execution of her duty. Those assaults were alleged to have involved the actions of grabbing the officers.

  9. Section 63 relevantly provides:

    Any person who assaults .... any police officer acting in the execution of his duty .... shall be liable on summary conviction to a fine of $5000 and to imprisonment for 6 months.

    THE PROCEEDINGS BELOW

  10. On 15 August 2002, Mr. Symon Wong, a permanent magistrate sitting at Western Magistracy, convicted the defendants on all charges after a 27-day trial. All the defendants (each of whom was of good character) were fined $1,300 for the public place obstruction offences. Those convicted of wilful obstruction of a police officer were each additionally fined $500 and the convictions for assaulting a police officer drew fines of $1,000 for each assault. The largest total fine was in the sum of $3,800, ordered against the 6th appellant.

  11. On 19 August 2002, the defendants lodged an appeal and, on 4 April 2003, they filed their preliminary grounds of appeal. Pang J, before whom the appeal had been listed, decided on 16 June 2003 that it should be transferred for hearing to the Court of Appeal. The appeal (HCMA 949/2002, Ma CJHC, Woo V-P and Stock JA) was heard in early September 2003 and, on 10 November 2004, the Court of Appeal handed down its reserved judgment, unanimously quashing the obstruction convictions on the first and second charges, but upholding (again unanimously but on varying grounds) the relevant defendants’ convictions on the third to sixth charges.

  12. The Court of Appeal therefore decided that although the public place obstruction convictions could not be sustained, the police officers had nevertheless been wilfully obstructed and assaulted while acting in the due execution of their duty.

  13. On 22 December 2004, the Appeal Committee granted the present appellants leave to appeal to this Court against the wilful obstruction and assault convictions.

    THE DEMONSTRATION

  14. Members of the Falun Gong had, since about August 2001, been demonstrating in the vicinity of the Liaison Office. In accordance with arrangements made by the police, they had been occupying a position on the pavement outside the building next door, at No 162 Connaught Road West (“No 162”).

  15. The demonstration was political in nature. The magistrate described its purpose (made evident by banners, leaflets and other materials) in the following terms:

    They protested at the treatment of their [Falun Gong] co-practitioners and asserted that the Central People’s Government, the Chairman Jiang Ze Min, in particular, had persecuted the [Falun Gong] by ordering brutal killings of its members in China.

  16. In the morning of 14 March 2002, four Falun Gong practitioners from Switzerland decided to conduct their demonstration (in the form of a proposed three-day hunger strike) seated on the pavement outside No 160, some 2 or 3 metres in front of a flag podium on which the national flag was hoisted. This was obviously a more prominent location than that occupied by the demonstrators in front of No 162. The Swiss demonstrators were joined by other Falun Gong members who stood in a compact group behind them, displaying a banner bearing the words: “Jiang Zemin: Stop Killing!” The demonstrators varied in number, but the group did not exceed 16 persons in total. The demonstration was peaceful and largely static, with the participants assuming postures apparently associated with Falun Gong rituals.

  17. The flag podium (which covers an oblong-shaped area of about 4 square metres) was situated some 8 or 9 metres in front of the main entrance to the Liaison Office building. It was flanked by lamp installations each covering a similar-sized area on either side, leaving gaps of about 3 metres between each lamp installation and the flag podium. The width of the pavement in front of the flag podium and lamp installations was about 9.5 metres, making it a wide pavement in Hong Kong terms.

  18. There was vehicular as well as pedestrian access to No 160 from Connaught Road West. Vehicles could enter and leave a basement car-park using driveways situated to the left and right of the main entrance, passing to the outside of the lamp installations. Some pedestrians might gain access to the main entrance from the pavement by walking through the gaps between the flag and lamp installations described above. Others might gain access from the pavement by crossing the vehicular driveways diagonally, skirting the lamp and flag installations.

  19. Plainly, pedestrian access was to some extent physically obstructed by the 14 March demonstration although pedestrians continued to be able to use the building’s main entrance by making a slight detour around the group of demonstrators. This does not, of course, amount to saying that the demonstrators were necessarily committing the offence of obstructing a public place, as discussed more fully below.

    EVENTS LEADING TO THE CHARGES

  20. At about 08:50 hrs on 14 March 2002, private security guards employed by the Liaison Office saw the four Swiss demonstrators take up their positions in front of No 160. They immediately made a series of telephone complaints to the police at the nearby WPS, alleging that office workers seeking access to the building and others were being obstructed.

  21. WPS was under the command of Superintendent Chiu Kai-ting, Divisional Commander, Western District (“Supt Chiu”). As he acknowledged in evidence, Supt Chiu acted as the overall commander at the scene and was responsible for all the actions taken in relation to the demonstrators. Having been told of the complaints, he, together with Senior Inspector Wong Tak-hung (“SIP Wong”), inspected the scene at about 09:00 hrs. After some 15 minutes’ observation, Supt Chiu concluded that the demonstrators were causing an obstruction. This was because he saw people wishing to enter the Liaison Office having to use the vehicular driveway to do so. He also testified that he saw local residents using the pavement being compelled to make detours to avoid the demonstrators at the scene.

  22. One of the first measures ordered by Supt Chiu involved erecting pedestrian barriers between the demonstrators and the main entrance to the Liaison Office. This took place at about 09:20 hrs and was done to avoid repetition of an incident which had taken place a fortnight earlier, on 26 February 2002, when a female Falun Gong member dashed several times into the Liaison Office building, chanting slogans and carrying a banner. However, such barriers also had the effect of denying all access to the main entrance through the gaps between the flag and lamp installations. Thereafter, access to that entrance could only be gained by crossing the vehicular driveways.

  23. The demonstration attracted media attention and, by 10:00 hrs, some 30 or so reporters had come to the scene, adding to the numbers outside No 160.

  24. An attempt was made, by a series of verbal warnings given by various police officers, to persuade the demonstrators to return to their previous location outside No 162. They were told that the demonstration in the present location constituted an offence of obstruction and that, unless they moved immediately, steps would be taken to remove and arrest them for that offence. All such warnings were ignored.

  25. The services of the Police Tactical Unit (“PTU”) were enlisted. At about 10:54 hrs, members of the PTU’s Z Company were ordered to attend at the WPS. There, at about 11:25 hrs, Supt Chiu briefed Superintendent Patrick Hodson, and Inspector Ho Ming-yan (“Insp Ho”) on the situation. They were commander of the PTU’s Z Company and platoon commander of Unit 3 of Z Company, respectively. Supt Chiu told them that complaints had been received from security officers at the Liaison Office and that a group of more than ten protestors consisting of Falun Gong members had gathered outside No 160 and were causing an obstruction. He said that warnings had been given but were ineffective so that removal and arrest action would have to be taken.

  26. After inspecting the scene with Supt Chiu, a briefing was held at about 12:25 hrs at which Supt Hodson briefed the other ranks in PTU, Z Company and officers attached to WPS who were to take part in the operation. Officers were told that there was a Falun Gong demonstration outside the Liaison Office which had caused obstruction and that the demonstrators would be warned to leave, failing which they would be arrested and removed using minimum force. Similar briefings of the police officers involved were held by Insp Ho. PTU officers were assigned to several removal teams, each comprising a sergeant and three constables, and WPS officers were given the task of cordoning off the area and taking charge of any arrested persons. The officers then took up a position outside Kwan Yick Building at 271-285 Des Voeux Road West, to await further instructions.

  27. After further verbal warnings had no effect, Supt Chiu gave the order to arrest and remove the demonstrators. This was conveyed to Insp Ho who instructed members of his platoon to proceed. The relevant team of arresting officers was led by Woman Police Sergeant Ma Pui-man (“Sergeant Ma”) and included three Woman Police Constables, namely, Wong Mei-po (“WPC Wong”), Chan Wai-man (“WPC Chan”) and Chan Hoi-lei (referred to in evidence as “WPC57215”). They had the task of removing female demonstrators.

  28. When arrest action began, the demonstrators linked arms with each other, sat on the ground and struggled physically to prevent members of their group from being taken to waiting police vehicles. As part of their efforts to extract individual demonstrators from the group, the police applied what is known as the hypoglossal nerve pressure technique which is intended to overcome resistance by causing pain to the person being arrested. Eventually, after a struggle lasting about half an hour, all the demonstrators were loaded on board police vehicles and taken back to WPS.

  29. When they got back to the station, the female demonstrators, including all the present appellants, refused to leave the vehicle in question. After police warnings did not persuade them to alight, officers took action to carry them bodily off the vehicle. The appellants resisted by hanging on to the seats and other fixtures in the vehicle. This was the conduct which resulted in the wilful obstruction charge. It was also in the course of their removal from the vehicle that the relevant appellants were alleged to have assaulted the police officers in question.

    THE CONTINUING IMPORTANCE OF THE OBSTRUCTION CHARGES

  30. As previously noted, the Court of Appeal quashed the convictions for public place obstruction. However, for reasons developed more fully below, it remains analytically important for the disposal of the present appeal to examine the basis upon which those convictions were quashed and to consider the impact of such quashing on the lawfulness of the arrests, these being matters which bear directly on the prosecution’s contention that when obstructed or assaulted, the police officers in question were acting “in the due execution of their duty”.

    THE CONSTITUTIONAL GUARANTEES

  31. Central to the case is the fact that the arrests were made and the charges of public place obstruction laid against the defendants because of their conduct in the course of a peaceful public demonstration. This was not a simple case of obstruction, for instance, by inconsiderate parking of a vehicle or by dumping waste building materials on a road or by a hawker impeding pedestrians on a pavement. Here, the fact that the defendants were at the time of arrest engaged in a peaceful demonstration meant that the constitutionally protected right to demonstrate was engaged. Indeed, a peaceful demonstration, may also engage the closely related guaranteed freedoms of opinion, expression and assembly. Such fundamental rights, when engaged, have an important bearing on the scope of the offence of obstruction and consequentially on the scope of police powers of arrest on suspicion of that offence.

  32. Article 27 of the Basic Law is directly in point and relevantly states:

    Article 27

    Hong Kong residents shall have freedom of speech, .... of assembly, .... and of demonstration ....

  33. By Article 39 of the Basic Law, constitutional protection is also given to freedom of opinion, of expression and of peaceful assembly as provided for in Articles 16 and 17 of the Hong Kong Bill of Rights, those articles being the equivalents of Articles 19 and 21 of the International Covenant on Civil and Political Rights and representing part of the ICCPR as applied to Hong Kong.

  34. For present purposes, it will be sufficient to focus on the interaction between the obstruction convictions on the one hand and the constitutional right to demonstrate enshrined in Article 27 of the Basic Law on the other. As the foregoing description of the relevant events indicates, the facts are straightforward, involving an essentially static demonstration alleged to constitute a public place obstruction. The restrictions on the right to demonstrate sought to be upheld by the prosecution are those contained in the Summary Offences Ordinance and it has correctly not been suggested that those provisions in themselves go beyond what is constitutionally permissible. The present focus is therefore on how those statutory provisions were applied in the context of an exercise of fundamental rights.

    THE QUASHING OF THE OBSTRUCTION CONVICTIONS IN THE COURT OF APPEAL

  35. The Court of Appeal unanimously quashed the public place obstruction convictions principally on the basis of Stock JA’s analysis. However, Ma CJHC (with Woo V-P agreeing) sought additionally to support the conclusion reached by reference to the Public Order Ordinance, Cap 245, in the context of the permitted restrictions in the Hong Kong Bill of Rights. We are respectfully unable to support that approach. The Public Order Ordinance was not applicable on the facts and not relied on by either party. And, as indicated in the preceding paragraph, it was correctly accepted that the statutory restrictions do not themselves exceed the scope of the constitutionally permitted restrictions. Accordingly, reference to the Public Order Ordinance regime was not relevant in the context of the present case.

  36. Nonetheless, the quashing of the obstruction convictions on the basis of Stock JA’s accurate analysis of the offence in the context of the fundamental right to demonstrate, coupled with his exhaustive analysis of the facts (at paras 61 to 118 of the Judgment), is unassailable.

  37. The conviction on the first charge was quashed on the ground that it was factually unsustainable. As Stock JA put it, the suggestion that the banner itself could constitute an unreasonable obstruction was “nonsensical”. No further discussion of the first charge is called for.

  38. The real issues arose from the second charge which alleges that, by assembling together for the demonstration outside the Liaison Office, the defendants (including the present appellants) caused an obstruction to a public place. It should be noted that while the particulars of the second charge were couched in terms of the assembly constituting an act “whereby obstruction, whether directly or consequentially, might accrue to a public place”, the prosecution’s case proceeded entirely on the basis that there had been an actual, and not merely a potential, obstruction.

    THE LAW RELATING TO OBSTRUCTION OF A PUBLIC PLACE

  39. Leaving aside for the moment the constitutional right to demonstrate, the offence created by s 4(28) has two main limbs:

    1. there must be an act which directly or consequentially causes an obstruction to a public place; and

    2. that act must have been done without lawful authority or excuse.

    Although s 4(28) refers to conduct whereby an obstruction “may accrue”, this does not mean that the mere possibility of obstruction may be sufficient. As was pointed out by Stock JA (para 60), this simply means that where it is clear that obstruction will be caused, there is no need to wait until obstruction is actually caused before an offence is committed. For the purposes of considering the applicable authorities, obstructing the highway may be taken as the paradigm example of obstructing a public place, and no distinction needs to be drawn between the two.

  40. So far as the first limb is concerned, the authorities indicate that any physical occupation of a road which interferes (to an extent which is more than de minimis) with the use of that road by others constitutes an obstruction: Nagy v Weston [1965] 1 All ER 78 at 80; Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr App R 143 at 151.

  41. It is, however, the second limb which is of importance for present purposes. The fact that someone physically obstructs the highway or some public place does not in itself constitute an offence. It is only where this takes place without lawful authority or excuse that a breach of s 4(28) occurs. Accordingly, while the impeding of pedestrian access to the Liaison Office amounted to a physical obstruction for the purposes of s 4(28), the demonstrators would only be guilty of an offence under that section if they caused the obstruction without lawful excuse. The burden of proving that it was without lawful excuse lies on the prosecution: Hirst and Agu, at 150 and 151. One might add in parentheses that questions concerning lawful authority (relevant to cases involving statutory permits or licences for market and street traders, and the like: see Hirst and Agu, at 151) do not arise on this appeal.

  42. It is clear that a person who creates an obstruction cannot be said to be acting without lawful excuse if his conduct involves a reasonable use of the highway or public place: Nagy v Weston, at 80; Hirst and Agu, at 150. The suggestion in some of the earlier reported cases that the public’s right to use the highway is limited to the right of passage and re-passage and acts incidental or ancillary thereto, is too narrow. It is now established that “.... the public have the right to use the public highway for such reasonable and usual activities as are consistent with the general public’s primary right to use the highway for purposes of passage and repassage” (DPP v Jones [1999] 2 AC 240 at 255E-G per Lord Irvine of Lairg LC; see also Lord Clyde at 279F, and Lord Hutton at 290H).

  43. Many examples of obstructions which may nevertheless constitute reasonable use of the highway can be found in the cases: two friends stopping for a chat when they happen to meet on the street, people handing out leaflets for commercial purposes, collecting money on a charity’s flag-day, stopping on the street to look into shop windows, to take a photograph or to make a sketch, and so forth. While other users of the road or footpath may be to some extent impeded by such conduct, the law looks upon such cases applying what Stock JA (citing Harper v G N Haden and Sons Limited [1933] 1 Ch. 298, 320) called “the law of give and take”. It seeks to strike a balance between possibly conflicting interests of different users of the highway based on a requirement of reasonableness. Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree depending on all the circumstances, including its extent and duration, the time and place where it occurs and the purpose for which it is done: Nagy v Weston, at 80, DPP v Jones, at 257E-G, 281E-F and 293B-C.

  44. Where the obstruction in question results from a peaceful demonstration, a constitutionally protected right is introduced into the equation. In such cases, it is essential that the protection given by the Basic Law to that right is recognized and given substantial weight when assessing the reasonableness of the obstruction. While the interests of those exercising their right of passage along the highway obviously remain important, and while exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, such bounds must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.

    THE FLAWED APPROACH TO OBSTRUCTION

  45. 45. Stock JA identified as the applicable legal principles, propositions corresponding to those summarised above. He held, with the concurrence of the other members of the Court of Appeal, that there was reason to doubt (para 93):

    .... whether the fact and the centrality of the requirement of showing an unreasonable impediment to the primary right of passage, was appreciated by the police officers who on 14 March 2002 asserted that an offence had been committed, or by the prosecutor in the presentation of the case; and whether the true issues were addressed by the magistrate.

  46. He concluded that the proper issues had not been sufficiently appreciated (para 94):

    .... the transcript in this case reveals an assumption on the part of the prosecution witnesses who alleged obstruction, and also on the part of prosecuting counsel, that all that had to be shown was that pedestrians were diverted from the path which but for the presence of the demonstrators they would have taken; and that since there was a space available down the road for the Falun Gong to demonstrate, an obstruction contrary to section 28(4) of the Summary offences Ordinance was proved.

    .... With respect to the magistrate, whose task was not made easier by some unhappy exchanges between counsel, I find scant assurance from the Statement of Findings that give and take as between two rights was accorded adequate consideration: indeed, there is a strong assertion in that Statement that the demonstrators were disrespectful of the rights of those seeking access to the offices – a conclusion against which the testimony tended - with no concomitant recognition of the tolerance and respect demanded by the right to assemble and protest guaranteed in terms by the Basic Law.

  47. The principal factual conclusions reached by Stock JA were summarised as follows:

    (1)

    that the objective indicia and the facts which are common ground show clearly enough that there was ample room for pedestrians as well as office workers safely to pass and to gain access to the building;

    (2)

    that that situation was not likely materially to change;

    (3)

    that the court below failed to take into account relevant evidence;

    (4)

    that the court below accorded too little regard to the right of assembly and protest;

    (5)

    that the court below applied too restrictive a test to the issue of reasonableness as it arises when two fundamental rights compete for space on a highway; ....

  48. Accordingly, the Court of Appeal quashed the convictions on the second charge, holding that the magistrate had failed to conduct the necessary evaluation of the reasonableness of the obstruction in deciding that the demonstrators had acted without lawful excuse; or, if he did make such an evaluation, that no reasonable tribunal properly directing itself could have arrived at the conclusion reached by him. As indicated above, we endorse the Court of Appeal’s findings and conclusions in this regard.

    CONSEQUENCE OF QUASHING THE OBSTRUCTION CONVICTIONS

  49. It is clear that the demonstrators, including the appellants, were arrested on the footing that they had committed public place obstruction offences. Given that the convictions for those offences have been quashed, the question arises as to whether the arrests which had been based on suspicion of those offences were lawful. And if they were not lawful, one must ask whether the act of removing the appellants from the police vehicle at WPS was action taken by the police officers concerned in the due execution of their duty. If not, an essential element of the offences for which the appellants were convicted on the third to sixth charges would be missing.

  50. The Court of Appeal, on grounds which were not unanimous, held that the wilful obstruction and assault convictions could be upheld notwithstanding the setting aside of the public place obstruction convictions.

    THE “NO NEXUS” ARGUMENT

  51. The first contention, accepted by Ma CJHC and Woo V-P, but not Stock JA, was that it did not matter whether the original arrests for public place obstruction were lawful. Woo V-P put this as follows (paras 48 and 49):

    Factually and logically, there can be no nexus between the arrests of the appellants by the police on the pavement outside 160 Connaught Road West and the conduct of the appellants after the vehicle carrying them had arrived at the Western Police Station.

    Even though three officers (PW13, PW15 and PW17), the complainants of the obstruction and assault charges 3, 4, 5 and 6, took part in the arrest of the appellants, their asking the appellants to alight from the vehicle at the police station had nothing to do with the arrest. The obstruction under charge 3 did not occur on the pavement outside 160 Connaught Road West when the appellants were arrested; it occurred after the appellants had arrived at the Western Police Station when the three complainants and their colleagues requested the appellants to leave the vehicle. Whether the appellants had been lawfully arrested, the requesting police officers must be executing their lawful duties when requesting the appellants to alight (see section 51 of the Police Force Ordinance). Even if the appellants had been unlawfully arrested, they had no right to remain on the vehicle. PW15 and PW17, who were assaulted as charged in charges 4, 5 and 6, were lawfully executing their duties in using reasonable force to carry the appellants concerned out of the vehicle, but they were bitten, scratched and grabbed on the neck by these appellants.

    Ma CJHC made a similar point at para 40.

  52. With respect, this argument is unsound. The starting point is that every resident is entitled to freedom of the person. Anyone who seeks to interfere with that freedom can only do so with proper legal justification. This was well-established at common law and is now laid down in Article 28 of the Basic Law:

    Article 28

    The freedom of the person of Hong Kong residents shall be inviolable.

    No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. ....

  53. If a person is subjected to an unlawful arrest by a police officer, the continued detention of that person pursuant to the arrest perpetuates the unlawfulness and constitutes a false imprisonment. It matters not that the continued detention is placed in the hands of officers other than the original arresting officers and it is irrelevant that the latter officers may know nothing of the circumstances of the arrest. The act of maintaining custody which is unlawful forms no part of the duty of any police officer and if he is obstructed or assaulted while doing so, he is not obstructed or assaulted while acting in the due execution of his duty. On the contrary, persons unlawfully in custody are entitled to use reasonable force to free themselves.

  54. In Christie v Leachinsky [1947] AC 573, Lord Simonds stated (at 591):

    Putting first things first, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right to arrest him. And I would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist arrest unless that arrest is lawful.

    Lord Du Parcq put it as follows (at 598):

    The principles established by the authorities are agreeable to common sense, and follow from the governing rule of the common law that a man is entitled to his liberty, and may, if necessary, defend his own freedom by force. If another person has a lawful reason for seeking to deprive him of that liberty, that person must as a general rule tell him what the reason is, for, unless he is told, he cannot be expected to submit to arrest, or blamed for resistance. The right to arrest and the duty to submit are correlative.

  55. That it makes no difference that custody is handed over to a different officer has long been recognized. Thus, in Griffin v Coleman (1859) 4 H&N 265, a prisoner who had been arrested by a constable in circumstances which did not give rise to a power of arrest, was taken to the police station where some hours later, the prisoner was handcuffed and taken by the superintendent before the magistrates who eventually dismissed the case. The superintendent had not made any inquiries as to the circumstances of the arrest and was held liable for trespass to the person. Pollock CB held that “the imprisonment was utterly illegal” and that “the defendant was a party to it”. Martin B cautioned: “Every person who takes part in an unlawful imprisonment acts at his peril.”

  56. In the present case, when the demonstrators were taken to WPS, they were being detained pursuant to their arrest outside No 160. This remained the case when action was taken to remove them from the relevant vehicle at WPS. It follows that if the original arrests were unlawful, such action (taken with a view to subjecting the demonstrators to processing procedures while keeping them in custody) were also unlawful and could not have been carried out by the relevant officers in the due execution of their duty. It is quite untenable to suggest that the action taken in the car-park of WPS had “nothing to do with” the original arrest.

    THE ARGUMENTS FOR HOLDING THAT THE ORIGINAL ARRESTS WERE LAWFUL

  57. The other arguments set out in the Court of Appeal judgments proceed on the basis that the original arrests were lawful so that the subsequent actions were taken in the due execution of the officers’ duty. These arguments all relate to the power of arrest conferred on police officers by s 50 of the Police Force Ordinance, Cap 232 (“PFO s 50”), which materially states:

    50.

    (1)

    It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of –

    (a)

    any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; or

    (1A)

    A police officer may exercise the power to apprehend a person under subsection (1) without any warrant for that purpose and whether or not he has seen any offence committed.

  58. Three arguments require consideration, namely:

    1. That the arrests were justified on the basis that the arresting officers reasonably believed that the demonstrators would be charged with obstruction (per Ma CJHC, at para 39);

    2. That, as appears from the evidence of Supt Chiu and SIP Wong, all the police officers concerned had a reasonable suspicion that the offence of obstruction had been committed by the demonstrators (per Ma CJHC, at para 38); and,

    3. That although Supt Chiu, who gave the order to arrest, did not himself have reasonable grounds for suspecting that an obstruction offence had occurred (para 119), the arresting officers had the necessary reasonable suspicion, making the arrest lawful (per Stock JA, para 145).

    These will be referred to as “the first, the second and the third arguments” respectively.

    THE FIRST ARGUMENT

    (The “would be charged” limb of PFO s 50)

  59. Ma CJHC touched lightly on this argument, stating merely that:

    Sight should not be lost either of the other limb of section 50(1), namely, a reasonable belief that the relevant Appellants would be charged (the Appellants were of course eventually charged).

  60. It would appear that his Lordship was suggesting that even if reasonable suspicion of guilt could not be shown, the arrests would be within the statutory power on the basis that the arrests were carried out in the belief (which was in fact vindicated) that the demonstrators would be charged with public place obstruction. With respect, such an argument cannot be accepted.

  61. It is true that, on its face, PFO s 50 appears to provide two alternative bases for the exercise of the power of arrest:

    1. where the officer reasonably believes that the arrested person will be charged with a relevant offence; and

    2. where the officer reasonably suspects that person of being guilty of a relevant offence.

  62. However, Article 28 of the Basic Law prohibits arbitrary arrest (as does Article 5 of the Hong Kong Bill of Rights). If PFO s 50 were to be construed as permitting a resident to be arrested where there is no reasonable suspicion that such person has committed any relevant offence, but merely where the arresting officer believes that (notwithstanding the absence of reasonable suspicion) the person in question will be charged with an offence, PFO s 50 would open the door to arbitrary arrest.

  63. The need for there to be some acceptable objective justification for an arrest, as reflected in a requirement of reasonable suspicion of guilt, is essential if residents are to be safeguarded from arbitrary arrest. As the European Court of Human Rights (“ECHR”) stated (in connection with Article 5(1) of the European Convention on Human Rights) in Fox, Campbell and Hartley v UK (1990) 13 EHRR 157, at para 32:

    The ‘reasonableness’ of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5(1)(c). The Court agrees with the Commission and the Government that having a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as ‘reasonable’ will however depend upon all the circumstances.

  64. This was echoed in O’Hara v UK (2002) 34 EHRR 32, at para 34. In both of these cases, the ECHR emphasised the requirement for reasonable suspicion in order to avoid arbitrary arrest even in the context of anti-terrorist legislation. In O’Hara (at para 35), the court acknowledged that terrorist crime poses special problems since there will often be constraints on disclosing information as to the basis of the suspicion for fear of jeopardising the safety of informants. The court nonetheless stated:

    Even in those circumstances, the respondent Government has to furnish at least some facts or information capable of satisfying the Court that the arrested person was reasonably suspected of having committed the alleged offence.

  65. The ECHR stated in Fox, Campbell & Hartley (above) at para 32, that domestic courts may be justified in applying less stringent “reasonable suspicion” standards in such terrorist cases, but that some objective basis for asserting a reasonable suspicion remained essential.

  66. If PFO s 50 is to be construed consistently with our constitutional guarantees against arbitrary arrest, the provision authorising a police officer to apprehend a person “who he reasonably believes will be charged” must be read to mean “who he reasonably believes will be charged on the basis of a reasonable suspicion that the arrested person is guilty of the offence to be charged”. So understood, the first limb of PFO s 50 encompasses the second limb and does not eliminate or dilute the requirement for there to be a reasonable suspicion of guilt.

    THE SECOND AND THIRD ARGUMENTS

    (Arrests in fact based on reasonable suspicion)

  67. The second and third arguments are closely related and can be dealt with at the same time. As to the second argument, Ma CJHC (at para 38) stated:

    Insofar as the focus should be on the validity of the arrests, while doubt exists as to whether the police had reasonable grounds to stop the demonstration when they did, there was never any doubt that the police had reason to believe that an offence had been committed. Both Senior Inspector Wong and Superintendent Chiu gave evidence not only as to the obstruction, but also to the potential dangers caused by the demonstration. These dangers may have been given a prominence that, on a careful balancing exercise, might not have been merited, but to say that the police did not have any reasonable grounds to believe that an offence had been committed, is simply not supported by the facts.

    His Lordship therefore evidently held that all police officers concerned had met the reasonable suspicion requirement at the time of arresting the demonstrators. However, he did not proceed to any analysis of the facts relied on in support of that conclusion.

  68. Turning to the third argument, the essential reason why Stock JA decided (with the concurrence of the other members of the court) that the public place obstruction convictions had to be quashed was that there had been a failure on the part of the police – and particularly on the part of Supt Chiu who had ordered the arrests – properly to appreciate “the centrality of the requirement of showing an unreasonable impediment to the primary right of passage” (para 93). Stock JA held that this entailed the conclusion that Supt Chiu could not have had a reasonable suspicion that the demonstrators had committed public place obstruction offences. However, his Lordship went on to state that it did not necessarily follow that those who effected the arrests themselves had also fallen foul of the objective test of reasonable suspicion (para 129(1)).

  69. The issue identified by Stock JA concerned the nature of (para 129(2)):

    .... the circumstances in which junior officers can be said to be acting in the execution of their duty in relation to a suspect when it is not adequately shown that the test is satisfied in relation to the officer supervising the same operation.

    He expressed regret that such issue had received sparse attention in argument before the Court of Appeal.

  70. After careful consideration of O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 (“O’Hara”), his Lordship held that the arresting officers did have a sufficient basis for reasonably suspecting that the demonstrators had committed a public place obstruction offence at the time of the arrests. In particular, it was held that information imparted at the briefing attended by those officers, plus the evidence of what they saw for themselves at the scene, permitted them reasonably to suspect that at an earlier point in time, the demonstrators had committed an obstruction offence. His Lordship put it thus (para 145):

    On the evidence placed before us, I am satisfied that, despite such flaw as [there] may have been in the Superintendent’s approach to the issue of public place obstruction, there is enough upon which the magistrate could properly conclude that the arresting officers themselves had reasonable cause to suspect the commission of an offence under section 4(28) of the Summary Offences Ordinance. They had been briefed and they went to the very scene where the demonstration was still afoot. Mr. Haynes points to the fact that at the time the arresting officers went to the scene, the situation had changed, in that barriers had been erected, and that therefore the facts upon which the original view had allegedly been formed that an obstruction had been caused were no longer the same facts. This he says is highly material. The answer is that for the purpose of section 50 of the Police Force Ordinance it might not be material at all. The question for the arresting officers was not necessarily whether they reasonably suspected that an offence was in the course of commission at the very time of arrest, but rather whether they reasonably suspected that one had been committed. I think that it can reasonably be said that an officer who is given a briefing that an obstruction has taken place, and is told that those who were obstructing are still in situ, and then himself or herself sees persons fitting the description of the described group actually occupying the described place has reasonable, even if mistaken, grounds for suspecting the earlier commission of the offence ....

    THE RELEVANT PRINCIPLES

    (i) Need for genuine suspicion on reasonable grounds

  71. An examination of the legal principles relevant to the two foregoing arguments may begin with the proposition, well-established in relation to powers of arrest which are exercisable on reasonable suspicion of guilt, that the arresting officer must have both a genuine suspicion that the offence in question has been committed and reasonable grounds for that suspicion.

  72. Leaving aside for the moment a question concerning the relevance of judicial review (mentioned later in this judgment), Woolf LJ in Castorina v The Chief Constable of Surrey (CA), The Times 15 June 1988, identified the relevant questions as follows:

    (1)

    Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

    (2)

    Assuming the officer had the necessary suspicion, was there reasonable cause for that suspicion? This is a purely objective requirement to be determined by the judge if necessary on facts found by a jury.

    (ii) Suspicion in the mind of the arresting officer

  73. The House of Lords in O'Hara made it clear that when considering whether these subjective and objective requirements have been met, one is concerned solely with what was in the mind of the arresting officer. The House of Lords was dealing in that case with a provision requiring the arresting constable to have “reasonable grounds for suspecting [the person arrested] to be a person who is or has been concerned in .... acts of terrorism” and Lord Steyn stated (at 292) that provisions employing such language “categorise as reasonable grounds for suspicion only matters present in the mind of the constable.”

  74. Lord Hope of Craighead (at 298) elaborated upon this as follows:

    My Lords, the test which section 12(1) of the Act of 1984 has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.

    This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officer's own account of the information which he had which matters, not what was observed by or known to anyone else.

  75. As Lord Steyn pointed out, it is by virtue of “the longstanding constitutional theory of the independence and accountability of the individual constable” that the law has come to fasten on the mind of the arresting officer himself:

    The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest .... The executive ‘discretion’ to arrest or not, as Lord Diplock described it in Mohammed-Holgate v Duke [1984] A.C. 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.

    [O’Hara at 293D-E]

    (iii) Who is the arresting officer?

  76. The arresting officer is the constable who actually effected the arrest. Where several constables take part, they each qualify as an arresting officer. In Hussien v Chong Fook Kam [1970] AC 942 at 947, Lord Devlin explained what in law amounts to an arrest:

    An arrest occurs when a police officer states in terms that he is arresting or when he uses force to restrain the individual concerned. It occurs also when by words or conduct he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go. It does not occur when he stops an individual to make inquiries.

    (iv) Reasonable suspicion must relate to the material elements of the relevant offence

  77. For the arresting officer to meet the statutory requirements of PFO s 50, the facts reasonably suspected by him to exist must be such that, if true, they would constitute the necessary elements of the offence for which the power of arrest is sought to be exercised. As Sedley LJ in Clarke v Chief Constable of North Wales Police [1997] EWCA Civ 2432 (7 October 1997) put it (para 23):

    .... the power of arrest without warrant depends on the existence in the mind of the arresting officer of reasonable suspicion of the material elements of an arrestable offence ....

  78. This is illustrated by Chapman v DPP (1988) 153 JP 27 where the power of arrest depended on the constable having a reasonable suspicion that the person to be arrested had committed an arrestable offence, meaning an offence punishable with 5 years’ imprisonment. Bingham LJ pointed out that it was (at 33):

    .... therefore necessary to consider .... what arrestable offence, or what facts amounting to an arrestable offence, [the constable] reasonably suspected to have occurred.

  79. The magistrates found that, on the basis of information received from fellow officers, the constable suspected and had reasonable grounds for suspecting either a common assault or an assault on a police officer in the execution of his duty. However, neither of those offences were arrestable offences. An assault with the additional element of occasioning actual bodily harm was an arrestable offence. But there was no evidence and no finding by the magistrates that the constable had acted on suspicion or had reasonable grounds for suspecting that bodily injury was a material element of the offence for which he was making the arrest. Bingham LJ added (at 34):

    It is not of course to be expected that a police constable in the heat of an emergency, or while in hot pursuit of a suspected criminal, should always have in mind specific statutory provisions, or that he should mentally identify specific offences with technicality or precision. He must, in my judgment, reasonably suspect the existence of facts amounting to an arrestable offence of a kind which he has in mind.

  80. The requirement is therefore one of substance and not of technicality. It complements the related rule that upon making an arrest, the arresting officer must in ordinary circumstances inform the person arrested in substance (without the necessity of using technical or precise language) of the reason for the arrest: see Christie v Leachinsky [1947] AC 573 at 587.

  81. In relation to a public place obstruction offence, a material element is that the obstruction was unreasonable and the fact that the constitutional right to demonstrate was being exercised has to be given substantial weight when assessing reasonableness.

    (v) The standard of reasonable suspicion

  82. As noted above, the standard set by PFO s 50 is one requiring the arresting officer to have formed, at the time of arrest, a genuine suspicion of guilt held on grounds which are objectively reasonable. What is needed to meet that standard in any particular case is a question of fact and degree.

  83. In Hussien v Chong Fook Kam [1970] AC 942 at 948 (PC), Lord Devlin emphasised that proving a reasonable suspicion is not the same as showing a prima facie case, describing the latter as importing “a much stiffer test”. His Lordship continued (at 948):

    Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage.

  84. Lord Devlin (at 949) also pointed out that prima facie proof consists of admissible evidence whereas suspicion can take into account matters that could not be put in evidence at all.

  85. The requirement that the suspicion be “reasonable” stiffens the test. As Sir Fredrick Lawton pointed out in Castorina v The Chief Constable of Surrey (above):

    Suspicion by itself, however, will not justify an arrest. There must be a factual basis for it of a kind which a court would adjudge to be reasonable.

    (vi) The source and grounds for reasonable suspicion

  86. Where the factual basis for the suspicion is within the arresting officer’s own knowledge, for instance, where he witnesses a crime in progress, the application of the reasonable suspicion test is straightforward. However, in a modern police force, officers necessarily operate as a team subject to a chain of command. The information upon which arrests are made may come from a variety of sources, for instance, calls for assistance from fellow officers picked up on a beat radio, surveillance and detection reports by other police units, information from Interpol and reports from informants and members of the public. Often, as in the present case, a team of officers will be briefed about suspected offences by superior officers just prior to an operation.

  87. These are matters which have received recognition in the case-law. The focus remains on the mind of the arresting officer who must be shown to have a genuine and reasonable suspicion that the person arrested has committed a relevant offence, having in mind the material elements of that offence. But that officer’s reasonable suspicion may properly be based upon any of those sources of hearsay information provided that such information leads him to form a genuine suspicion on grounds which an objective observer would regard as reasonable.

  88. Lord Steyn in O'Hara (at 293) stated:

    In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v Chong Fook Kam [1970] AC 942, 949 .... Hearsay information may therefore afford a constable reasonable grounds to arrest. Such information may come from other officers: Hussien's case, ibid.

  89. Lord Hope put it thus:

    The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what was known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances.

    [O'Hara at 298]

  90. Dealing with police teamwork, Lord Hope added (at 301-302):

    Many other examples may be cited of cases where the action of the constable who exercises a statutory power of arrest or of search is a member of a team of police officers, or where his action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.

  91. In an operation such as that conducted in the present case, the arresting officers may be subject to the supervision of superior officers throughout and it may be on the order of a superior officer that they initiate the arrest action. It is recognized that, realistically, the arresting officer will generally not be in a position to question that order. Indeed every police officer is under a statutory duty to obey all lawful orders of his superior officers and is liable to dismissal for failure to do so: see ss 30 and 31 of the Police Force Ordinance, Cap 232. As Lord Roskill noted in McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358 at 1361:

    The arresting officer is not bound and indeed may well not be entitled to question those instructions or to ask upon what information they are founded.

  92. However, this does not mean that the arresting officer is entitled simply to rely on the fact that a superior officer has ordered the arrest. It remains essential that the arresting officer must be equipped with a sufficient factual basis to found, in his own mind, the requisite reasonable suspicion. It follows that where, for instance, a briefing precedes the arrest action, the officer giving the briefing must be careful to impart sufficient information to provide a proper factual basis for a reasonable suspicion. And where the lawfulness of the arrest is subsequently challenged, evidence of the contents of the briefing may be important.

  93. Lord Steyn dealt with orders from superior officers as follows (at 293-294):

    Given the independent responsibility and accountability of a constable under a provision such as section 12(1) of the Act of 1984 it seems to follow that the mere fact that an arresting officer has been instructed by a superior officer to effect the arrest is not capable of amounting to reasonable grounds for the necessary suspicion within the meaning of section 12(1). It is accepted, and rightly accepted, that a mere request to arrest without any further information by an equal ranking officer, or a junior officer, is incapable of amounting to reasonable grounds for the necessary suspicion. How can the badge of the superior officer, and the fact that he gave an order, make a difference? In respect of a statute vesting an independent discretion in the particular constable, and requiring him personally to have reasonable grounds for suspicion, it would be surprising if seniority made a difference .... Such an order to arrest cannot without some further information being given to the constable be sufficient to afford the constable reasonable grounds for the necessary suspicion.

    (vii) Applicability of judicial review principles

  94. The provisions of PFO s 50 give the police officer the power to arrest upon the reasonable suspicion condition being met. But he obviously has a discretion and is not obliged to make an arrest in every case where such condition is satisfied. Indeed, the authorities show that there may be cases where, notwithstanding the existence of a reasonable suspicion of guilt, an arrest may be made in bad faith or otherwise be made in circumstances justifying a judicial review on the basis laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In Mohammed-Holgate v Duke [1984] AC 437 at 443, Lord Diplock, having noted that the conditions precedent for an arrest had been fulfilled in the case at hand, continued as follows:

    .... since the wording of the subsection under which he acted is ‘may arrest without warrant,’ this left him with an executive discretion whether to arrest her or not. Since this is an executive discretion expressly conferred by statute upon a public officer, the constable making the arrest, the lawfulness of the way in which he has exercised it in a particular case cannot be questioned in any court of law except upon those principles laid down by Lord Greene M.R. in [the Wednesbury case] .... The Wednesbury principles, as they are usually referred to, are applicable to determining the lawfulness of the exercise of the statutory discretion of a constable under section 2(4) of the Criminal Law Act 1967, not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for damages for that species of trespass to the person known as false imprisonment, for which the action in the instant case is brought.

  95. Given the way the arguments were presented in the present case, the Court is not concerned with any consideration of such judicial review powers. The issue is as to whether, on the evidence and in the light of the applicable legal principles, the Court of Appeal was correct to hold (on the second and third arguments) that the condition precedent of a reasonable suspicion that the demonstrators had committed an offence of obstruction under s 4(28) was fulfilled.

    APPLICATION OF THE PRINCIPLES

  96. Initially, Mr. Paul Harris (who appeared with Mr. Cheung Yiu Leung for the 1st, 2nd, 3rd and 7th appellants) submitted in argument that Supt Chiu should be regarded as the arresting officer since he had given the order to make the arrests. He also sought to suggest that Supt Chiu did not genuinely suspect the demonstrators of any obstruction offence but had ordered the arrests merely with a view to sparing the sensitivities of the Liaison Office and therefore had issued the order for an improper reason.

  97. In his reply submissions, Mr. Harris correctly withdrew the argument that Supt Chiu should be regarded as the arresting officer in the light of the authorities canvassed. We are in any event not prepared to entertain the suggestion that Supt Chiu ordered the arrests in bad faith. This case has throughout proceeded on the footing that the relevant officers did (as they testified) genuinely suspect obstruction, the issue focusing on whether that suspicion was held on reasonable grounds. A suggestion of bad faith is a serious allegation. It was not advanced either before the magistrate or in the Court of Appeal. Neither was it fairly put to Supt Chiu in the witness-box.

  98. The arresting officers in the present case were the four-officer team comprising Sergeant Ma, WPC Wong, WPC Chan and Chan Hoi-lei (WPC57215). They were the officers who actually effected the arrest of the appellants and it is to their states of mind that one looks in deciding whether the arrests were carried out on reasonable suspicion of guilt. All except Chan Hoi-lei gave evidence so that an examination of the basis upon which they took arrest action may be made.

  99. In relation to the second argument, Ma CJHC appears to have focused instead on the evidence of Supt Chiu and SIP Wong for his conclusion that “there was never any doubt that the police had reason to believe that an offence had been committed.” He did not mention the arresting officers themselves and offered no factual analysis in support. As the authorities reviewed above show, that was an erroneous approach.

  100. Stock JA recognized that “the person who has to house the reasonable suspicion is the arresting officer himself” (para 138) but he was hampered by the fact that the Court of Appeal did not have before it transcripts of the evidence of either Insp Ho or WPC Wong. It is no doubt for this reason that he treated Insp Ho as one of the arresting officers. That was not consistent with the evidence. In the transcript (which was made available to this Court), this exchange is to be found in Insp Ho’s cross-examination:

    Q

    Officer, it appears from your evidence that you were the arresting officer of a number of these defendants; is that correct?

    A

    No, I gave instruction to my subordinate to do the arrest operation.

  101. As previously indicated, Stock JA felt able to uphold the wilful obstruction and assault convictions on the footing that the arrests had lawfully been made on reasonable suspicion supplied by the contents of the briefing and by what the arresting officers were able to see with their own eyes at the scene. His Lordship considered that the available information gave the arresting officers “reasonable, even if mistaken, grounds for suspecting the earlier commission of the offence.” We are respectfully unable to accept that conclusion.

  102. The authorities certainly support the view that an officer may properly form a reasonable suspicion based on what he has been told at a briefing, supplemented, if necessary, by what he then sees at the scene. However, it must be borne in mind that the suspicion stimulated must relate to the material elements of the offence, in this case, an offence which involved obstructing a public place without lawful excuse in the context of an exercise of the constitutional right of public demonstration. As noted above, the Court of Appeal unanimously held that the evidence did not sustain the finding that the obstruction was without lawful excuse. Stock JA, moreover, correctly held that Supt Chiu did not sufficiently have in mind the elements indicated in italics and could not, if he had himself effected the arrests, have demonstrated a reasonable suspicion of the offence in question.

  103. The evidence as to what was said at the briefing was sparse. Nothing in that evidence indicates that the briefing addressed facts which might enable the arresting officers reasonably to suspect that the obstruction caused by the demonstrators was of such character, dimensions or duration as to amount to an unreasonable use of the highway and therefore to have been without lawful excuse, bearing in mind their constitutional right to demonstrate.

  104. Insp Ho gave evidence of two briefings he had attended. The first was at 11:25 hrs when he was briefed by Supt Chiu. That briefing is not directly relevant since the arresting officers were not present. However, that evidence indicates the boundaries of the information made available to the officers concerned:

    Q

    At about 1125 hours on that day, were you given a briefing in relation to a complaint of obstruction outside 160 Connaught Road West?

    A

    Yes. Yes, I was briefed by the commander of Western Police Station. He briefed me that earlier on complaints have been received from LOCPG [i.e., the Liaison Office] concerning obstruction.

    Q

    And did he give you any further particulars about the nature of the obstruction?

    A

    A part of it at that time. Superintendent Chiu Kai-ting briefed me that there was a group of more than 10 protesters gathered at the pavement outside No. 160 Connaught Road West. And that group of people consisted of Falun Gong members and the complainant is one of the security officers of LOCPG.

    Q

    Were you given any particular instructions at this stage?

    A

    Superintendent Chiu told me that earlier on warning or warnings had been given to this group of people concerned but the warning or warnings was not effective. And he briefed me that I had to make some arrangement relating to the removal operation and arrest action.

  105. Then in relation to the 12:25 hrs briefing which was attended by the arresting officers, Insp Ho’s evidence was as follows:

    Q

    Did you later attend a briefing in relation to this demonstration that was taking place at 160?

    A

    Yes.

    Q

    Remember what time that briefing took place?

    A

    The time was 12.25 pm to 12.35 pm.

    Q

    Who gave the briefing?

    A

    My commander, that is Superintendent Ho Tak-shing, Patrick Hodson.

    Q

    And who did he brief and what did he brief them about?

    A

    He mainly told me that my team, that is sub-unit 3, would be responsible for the removal action and the escort of the prisoners -- I’m sorry, it should be the escort of (Witness continues in English) prisoner escort.

  106. Insp Ho was obviously not given any factual details bearing on the material element of lawful excuse in relation to the suspected offence. There was no mention of the demonstrators’ constitutional right of peaceful demonstration nor of any facts which might render its exercise unreasonable.

  107. Sergeant Ma, who led the team of arresting officers, gave evidence about two briefings which she attended. The first, held at about 12:25 hrs was attended by officers of the rank of sergeant and up:

    Q

    At about 12.25 pm that day, were you given a briefing?

    A

    Yes.

    Q

    Who gave you the briefing?

    A

    The commander of my sub-unit, Inspector Ho Man-yan.

    Q

    Did he give a briefing to you and to your platoon members?

    A

    Yes.

    ....

    Q

    Now, during this briefing that was given, what was said to you, as best as you can recall, the general gist of what was said?

    A

    At that time I was briefed by Inspector Ho Man-yan that a group of people had caused obstruction at the Liaison Office of the Central Peoples Government of the Special Administrative Region at No 160 Connaught Road, West.

  108. In relation to the briefing held for other ranks, Sergeant Ma’s evidence was to like effect:

    Q

    Who gave this briefing and what was said at that briefing?

    A

    Also by Inspector Ho. Likewise, the content of it was that there was a group of people causing obstruction at the aforesaid location, that is No. 160 Connaught Road, West.

  109. Sergeant Ma was also asked about what she saw at the scene:

    Q

    What did you see at the scene?

    A

    At that time I saw there was a group of people sitting outside No. 160 Connaught Road West. At that time they were holding a banner with a white background.

    Q

    Can you tell us whether you observed what some of them were doing and what positions they were in, whether they were sitting or standing?

    A

    Amongst them most of them were sitting and some of them were standing and holding the banner. For the location where they were standing, it was at the middle of the pedestrian passageway outside the office.

    Q

    Did you make any assessment of the conduct of the demonstrators, how that might affect users of the road or of the pavement?

    A

    Yes.

    Q

    What was that?

    A

    At that time I had made the assessment since that location was the main passageway for going in and out. And for the location which was occupied by them, they occupation two-thirds of the passageway horizontally. And I had reason to believe that obstruction would be caused to the people who went in and out of the office.

    Q

    .... On viewing this, did you form any view as to whether any offence had been committed?

    A

    Yes, obstruction.

    Q

    On the assessment of the situation that you saw, was that a suspicion that you had formed, that the offence of obstruction had been committed?

    A

    Yes.

  110. Sergeant Ma’s evidence was therefore to the effect that at the briefing, information about the offence of obstruction went little beyond the assertion that it had been committed without any reference to the material element of lawful excuse. The evidence of WPC Wong and WPC Chan did not take the matter any further.

  111. Stock JA’s suggestion that there was sufficient to found a reasonable suspicion that the demonstrators had, at an earlier stage, committed the offence of obstruction without lawful excuse, is not supportable. None of the arresting officers testified to harbouring any such suspicion. On the contrary, they all stated that when arriving at the scene, they considered that the offence was in the course of being committed. The warnings given by the police, some within the hearing of the arresting officers, involved stating in the present tense that the demonstrators were then causing an obstruction. From the beginning, reference had been made to a group of “more than ten” demonstrators, an apt description given the maximum of 16 participants. There was nowhere any suggestion that the demonstration had earlier been larger and so possibly more obstructive.

    CONCLUSION

  112. The inescapable conclusion is accordingly that the objective requirement of reasonable suspicion of a public place obstruction without lawful excuse cannot be made out either on the basis of what had been said at the briefings or of what was self-evident at the scene. It follows that the arrests for obstruction contrary to s 4(28) were unlawful. This in turn means that the actions taken by the officers to remove the appellants from the vehicle while keeping them in police detention were not performed in the due execution of their duty. The appeal must therefore be allowed and the convictions on the 3rd to 6th charges inclusive must be quashed.

    COMMON ASSAULT

  113. Consideration was given to the possibility of substituting convictions for common assault in respect of the 4th to 6th charges. In appropriate cases this is possible since a person who assaults a police officer who is not acting in the execution of his duty may nevertheless commit the offence of common assault on that officer.

  114. A substituted conviction would not be appropriate in the present case. As noted above, the law permits individuals to use reasonable force to resist being subjected to unlawful detention. The assaults in the present case occurred in circumstances where the relevant appellants were resisting detention and attendant procedures. Their acts would amount to common assaults if more than reasonable force was used. It is possible that their acts may have amounted to common assaults. However, whether this was the case involves a factual assessment that this Court is in no position to make, the issue never having been examined below. Such evidence as has been placed before us falls far short of establishing unequivocally that excessive force was used.

    CONDUCT OF THE POLICE

  115. This judgment should serve to clarify the law on the public obstruction offence and the law of arrest. We wish to make clear that no criticism of the conduct of any of the police officers is intended by this judgment. They had to cope with a difficult situation in relation to an area of the law which has been developing. It should be acknowledged that as is shown by the evidence including the video recordings, they acted with restraint and with disciplined professionalism throughout.

    THE COURT OF APPEAL'S DELAY IN HANDING DOWN JUDGMENT

  116. The trial before the Magistrate had taken 27 days and the appeal involved complex issues of fact and law. On 5 September 2003, the Court of Appeal reserved judgment after a three day hearing. About six months later, in early March 2004, the appellants’ solicitors wrote to the clerk of the court to inquire when judgment would be handed down. In the absence of a reply, they wrote again in the middle of August 2004. The reply indicated this was likely to be in September 2004. This was later revised to October. Judgment was eventually handed down on 10 November 2004. There was thus an interval of over 14 months between the conclusion of the hearing and the delivery of judgment.

  117. The appellants rely on the delay involved as an independent ground for challenging the convictions on the obstruction and assault charges. It is submitted that as a result of such delay, their right to be tried without delay had been breached and that the appropriate remedy is the quashing of the convictions in question.

    ARTICLE 11(2)(c) OF THE BILL OF RIGHTS

  118. Article 11(2)(c) of the Bill of Rights Cap 383 provides:

    In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality –

    (c)

    to be tried without undue delay.

  119. Article 11(4) provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. These articles are equivalent to Art 14.3(c) and 14.5 of the International Covenant on Civil and Political and Rights (ICCPR).

  120. In the present context, the appeal provides the review envisaged in Art 11(4). A criminal charge is not determined within the meaning of Art 11(2)(c) until there has been a determination on appeal. Accordingly, the guarantee of trial without delay in the determination of a criminal charge includes the appellate process. This is consistent with General Comment 13 on Art 14 of the ICCPR (21st session 1984). Paragraph 10 of that Comment stated that to make the right to be tried without delay effective, “a procedure must be available in order to ensure that the trial will proceed without undue delay, both in first instance and on appeal”. This view was applied by the Human Rights Committee in Rogerson v Australia UN Human Rights Committee Reference 802/98 (15 April 2002). In that case, it was held that an unexplained delay of almost two years by the Northern Territory Court of Appeal in giving judgment on a contempt of court matter violated the party’s right to be tried without delay in Art 14.3(c) of the ICCPR. It also held that such finding of violation constituted a sufficient remedy (paras 9.3 and 11).

    THE REASON FOR DELAY

  121. In his judgment, the Chief Judge expressed regret for the delay. He stated that the reason for delay was that he wanted to wait until after the Court of Appeal (Ma CJHC, Stock and Yeung JJA) had heard the appeal in HKSAR v Leung Kwok Hung [2004] 3HKLRD 729 which concerned freedom of expression and peaceful assembly and limits to their exercise so that the principles from that case could be borne in mind in dealing with the present case. (The Chief Judge and Stock JA sat in both appeals.) That appeal was heard on 24 to 27 February and 24 and 25 June 2004 and judgment was handed down on 10 November 2004, the same day as the judgment in the present case.

  122. Whilst we, of course, accept that the Chief Judge believed that the reason he gave justified the delay, the matter must be objectively judged. Having regard to our conclusion that the permitted restrictions in the Public Order Ordinance are irrelevant to the public place obstruction offence, the reason given is not objectively a sufficient justification for the delay.

  123. We have concluded that the convictions in question should be quashed on the ground that the police officers were not acting in the execution of their duty. Having regard to this conclusion, the challenge on the ground of undue delay does not arise for decision and it is unnecessary to determine whether there was undue delay in the present case and, if so, the proper remedy. The question of undue delay involves a consideration of many factors. In this respect, we note that there are extensive comparative materials on the matter. The Court would wish to hear comprehensive argument and examine carefully these materials before deciding these issues should they arise for decision in a future case.

    DUTY TO GIVE JUDGMENTS WITHIN A REASONABLE TIME

  124. However, it must be clearly and firmly reiterated that judges at all levels of court have a duty to give judgments within a reasonable time after the conclusion of the hearing. This is important not only for ensuring that justice is done to the parties but also for the maintenance of public confidence in the Judiciary and the judicial system.

  125. An interval of over 14 months between the conclusion of the hearing and the delivery of judgment in a criminal appeal is most exceptional. Irrespective of whether Art 11(2)(c) was breached in this case, a question on which it is unnecessary to express any view, even taking into account the complexity of the issues involved and the fact that the appellants were not in custody, we think that delay of this order is unacceptable and should not occur again.

    COSTS

  126. As the parties are agreed that costs should follow the event in this Court, the costs of this appeal are awarded in favour of the appellants with an order for legal aid taxation of the costs of those appellants who are on legal aid. As for the costs in the courts below, the parties are at liberty to make any necessary application in writing to this Court.

    Mr. Justice Bokhary PJ

  127. On 14 March 2002 a number of demonstrators including these appellants were staging a demonstration on the pavement along a public road. As it happens, the demonstrators were followers of the Falun Gong movement. The demonstration was being staged right outside the main entrance to the Liaison Office of the Central People’s Government at No. 160 Connaught Road West. And it took the form of a protest against what the demonstrators said was happening to Falun Gong followers in the Mainland. But subject to one question, the politics (if any) behind a demonstration are irrelevant to the legal issues to which it may give rise. It can happen that the demonstrators’ cause is itself intolerant. If so, there would arise the question mentioned by Gendall J at p.630 in Police v Beggs [1999] 3 NZLR 615, a decision of a two-judge division of the High Court in New Zealand hearing an appeal from the District Court. Should the law “in the name of tolerance tolerate the intolerant”? Subject to this question the freedoms of assembly, procession and demonstration are enjoyed irrespective of the participants’ politics. That question does not arise in the present case. Nor in fact did it arise in Beggs’s case which involved a student protest about education funding.

  128. Article 27 of our constitution the Basic Law guarantees freedom of assembly, procession and demonstration for Hong Kong residents. These appellants are Hong Kong residents but some of the other demonstrators were from abroad. So it should be mentioned that art. 41 extends the guarantee of these and other freedoms to persons in Hong Kong other than residents, thus matching the common law approach. This approach can be seen in R v Chiswick Police Station Superintendent, ex parte Sacksteder [1918] 1 KB 578, a deportation case heard by the Court of Appeal in England during the First World War. Scrutton LJ’s judgment in particular lays stress (at pp 589-590) on the anxious care that the courts will always give to any interference with liberty whether the person affected is a citizen or a foreigner temporarily within the sovereign’s protection.

  129. While staging their demonstration the appellants and the other demonstrators were arrested for public place obstruction. The Summary Offences Ordinance, Cap. 228, lays down two offences of public place obstruction, one under s.4(28) and the other under s.4A. Charges were brought under both in the present case.

  130. Section 4(28) provides that any person who without lawful authority or excuse does any act whereby any injury or obstruction, whether directly or consequentially, may accrue to a public place or to the shore of the sea, or to navigation, mooring or anchorage, transit or traffic shall be liable to a fine of $500 or to imprisonment for 3 months. The allegedly obstructive act consisted of gathering together in a group of 16 demonstrators: four on a hunger strike and 12 supporting them.

  131. Turning to s.4A, it provides that any person who without lawful authority or excuse sets out or leaves, or causes to be set out or left, any matter or thing which obstructs, inconveniences or endangers, or may obstruct, inconvenience or endanger, any person or vehicle in a public place shall be liable to a fine of $5,000 or to imprisonment for 3 months. The allegedly obstructive thing consisted of a banner displayed by the hunger strikers. It is common ground that the banner would not have been obstructive if the gathering of persons was not obstructive.

  132. The Court of Appeal (Ma CJHC, Woo VP and Stock JA) held, rightly in my view, that the demonstration did not amount to offences under those sections. And they quashed the demonstrators’ convictions in the Magistrate’s Court (Symon Wong, Esq.) for public place obstruction. The respondent has not cross-appealed against the quashing of those convictions. But the arguments presented on behalf of the respondent in resisting the appeal makes it necessary to examine the inter-relationship between free assembly and public place obstruction. And I will do so in due course.

  133. After the demonstrators were arrested they were all taken in police vehicles to a police station. Upon arrival there the police ordered them to alight from the vehicles and enter the station for processing as persons under arrest. Some of the demonstrators complied with that order. But the appellants declined to do so. Instead they remained in a vehicle linking arms, holding on to their seats and chanting slogans. They physically resisted when the police prised them from the vehicle and carried them into the station. So in addition to public place obstruction outside the Liaison Office, all the appellants were charged with obstructing a police officer in the due execution of his duty, contrary to s.36(b) of the Offences Against the Person Ordinance, Cap. 212. And some of them were also charged with assaulting a police officer in the due execution of his duty, contrary to s.63 of the Police Force Ordinance, Cap. 232. The Court of Appeal has quashed the convictions for public place obstructions. So this appeal is against their judgment affirming the convictions for obstructing a police officer in the due execution of his duty and for assaulting a police officer in the due execution of his duty.

    REASONABLE OBSTRUCTION

  134. The presence of these demonstrators did not prevent persons from passing and re-passing along the pavement in front of the Liaison Office. Nor did it prevent persons from entering or leaving the Liaison Office by its main entrance. But persons passing or re-passing along the pavement might have had to make a detour around the demonstrators. And so might persons entering or leaving the Liaison Office. So the presence of the demonstrators did cause an obstruction. But public place obstruction does not consist of mere obstruction. It consists of unreasonable obstruction in the sense of obstruction that the public cannot reasonably be expected to tolerate. I say so for the following reasons.

  135. It is by no means easy to imagine a meaningful assembly, procession or demonstration that would not cause some measure of obstruction in the ordinary sense of the term. What then would happen if it were to be held that people inevitably commit public place obstruction whenever they cause anything that would in common parlance be called an obstruction? The consequence, I think, would be that the freedoms of assembly, procession and demonstration would be unacceptably curtailed.

  136. The Irish case of Lowdens v Keaveney [1903] 2 IR 82 is instructive. It was decided by the Divisional Court of the Queen’s Bench Division of the High Court of Justice in Ireland. Lowdens was the leader of a band which had played political party tunes through the streets of Belfast. He was charged under a statutory provision (14 & 15 Vict. c. 92, s.13) which made it an offence for any person wilfully to prevent or interrupt the free passage of persons or carriages in a public street. The trial magistrates convicted him.

  137. But the Divisional Court quashed his conviction. They quashed it because the trial magistrates had omitted to consider whether his user of the street was, under the circumstances, reasonable. Lord O’Brien CJ referred (at p.87) to instances in which “the whole street .... may be swept and the greatest physical obstruction caused - traffic brought absolutely to a standstill”. The examples which he gave were “the funeral of some distinguished man”, “a regiment of soldiers marching along a street, playing a martial air”, “some great civic pagent” and “a trades procession [by which] cabs and carriages are brought to a standstill whilst the procession was passing”. And he then said:

    These instances show that taking part in a procession which has caused obstruction in the street and the natural and probable consequence of taking part in which was that obstruction would ensue is not enough to create liability under the statute. There must be something more. What more must there be. What other condition is necessary? This, namely, that the user of the street was an unreasonable one. The necessity for the existence of this condition is obvious, and the law on the subject is clear.

    For that last proposition Lord O’Brien CJ cited Sir George Jessel MR’s judgment in Original Hartlepool Collieries Co. v Gibb (1877) 5 Ch D 713 (a first instance decision concerning a navigable river as a public highway).

  138. Lowdens's case was applied by the Court of Criminal Appeal in R v Clark (No. 2) [1964] 2 QB 315 (in which Lord Parker CJ said at p.321 that “Lowdens v Keaveney is valuable as setting out the true position”). Clark was the field secretary of the Campaign for Nuclear Disarmament. He had been convicted of inciting persons to commit a public nuisance by obstructing the highway in and around Whitehall in the course of a demonstration. His conviction was quashed on the ground that the trial judge had failed to leave to the jury the question of whether or not, granted obstruction, the highway user involved was unreasonable.

  139. In Hirst v Chief Constable of West Yorkshire (1987) 85 Cr App R 143 two animal rights supporters obstructed free passage along a street while demonstrating outside a furrier’s shop. They were convicted of wilfully obstructing free passage along a highway without lawful authority or excuse. Their appeal to the Divisional Court of the Queen’s Bench Division succeeded on the ground that the trial magistrates had omitted to consider the question of reasonableness.

  140. None of that is to deny that the primary purpose of a highway is - as the Divisional Court of the Queen’s Bench Division held in Ex parte Lewis (1888) 21 QBD 191, as the English Court of Appeal held in Hickman v Maisey [1900] 1 QB 752 and as the House of Lords held in Director of Public Prosecutions v Jones [1999] 2 AC 240 - free passage. The police have the important and sometimes difficult duty of preserving such free passage. But highway user does not end with passing or re-passing or even with matters incidental thereto. There is more. In Hague v Committee for Industrial Organization 307 US 496 (1938) at p.515 Roberts J, in a judgment which enjoyed the concurrence of Black J, said in the United States Supreme Court that:

    Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.

    This statement including highways among traditional public fora was endorsed (at pp 480-481) in the majority judgment of the United States Supreme Court delivered by O’Connor J in Frisby v Schultz 487 US 474 (1987). To these statements made in the United States Supreme Court may be added one made in the High Court of Australia. As Brennan CJ observed in Levy v Victoria (1997) 189 CLR 579 at p.594, “actions as well as words can communicate ideas”.

  141. I am aware that in the Scottish case of M’Ara v Magistrates of Edinburgh 1913 SC 1059 decided by the Inner House of the Court of Session some 90 years ago the Lord President (Lord Dunedin) said (at p.1073) that “the right of free speech is a perfectly separate thing from the question of the place where the right is to be exercised”. But coming to more recent times, I agree with Lamer CJC’s statement in the Supreme Court of Canada in Committee for the Commonwealth of Canada v Canada (1991), 77 DLR (4th) 385 at p.394 a-b. He said that “the freedom of expression .... necessarily implies the use of physical space to meet its underlying objectives”. And then there is the approach of the European Commission of Human Rights to the inter-relationship between freedom of expression and freedom of assembly. That is dealt with in Lester & Pannick: Human Rights Law and Practice, 2nd ed.(2004) at p. 380, para. 4.11.2. There it is said that “[w]here applicants have complained of violations of their right to freedom of expression under art 10 in cases concerning meetings or assemblies, the Commission analysed the complaint in terms of art 11 [on freedom of peaceful assembly and association] being the operative provision, subsuming the right to freedom of expression within it.”

  142. To that may be added what Hughes CJ said when delivering the opinion of the United States Supreme Court in De Jonge v Oregon 299 US 353 (1937). He said (at p.364) that “[t]he right to peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” Much the same sort of point is made by Prof. Manfred Nowak in his book UN Covenant on Civil and Political Rights: CCPR Commentary (1993) at p.370. There he says that “the focus of freedom of assembly is clearly on its democratic function in the process of forming, expressing and implementing political opinions”. (Emphasis in the original).

  143. From what I have seen of its jurisprudence on freedom of assembly, the United States Supreme Court has tended to give almost extreme illustrations when indicating the degree of interference with free passage along a highway that is to be regarded as unacceptable. Thus in Schneider v State 308 US 147 (1939) at pp 160-161 it was put like this in the opinion of the court delivered by Roberts J:

    Municipal authorities, as trustees for the public, have the duty to keep their communities' streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets.

  144. The mere fact that an assembly, a procession or a demonstration causes some interference with free passage along a highway does not take away its protection under art. 27 of the Basic Law. In my view, it would not lose such protection unless the interference caused is unreasonable in the sense of exceeding what the public can reasonably be expected to tolerate. As to that, I think that the participants in a large or even massive assembly, procession or demonstration will often be able to say with justification that their point could not be nearly as effectively made by anything on a smaller scale. Subject to this, the most obviously relevant considerations are, I think, how substantial the interference is and how long it lasts. But other considerations can be relevant, too. These include, I think, whether the interference concerned had been recently preceded by another act or other acts of interference on another occasion or other occasions. What the public can reasonably be expected to tolerate is a question of fact and degree. But when answering this question, a court must always remember that preservation of the freedom in full measure defines reasonableness and is not merely a factor in deciding what is reasonable.

  145. This approach is, I think, consistent with the one adopted by the Privy Council in Francis v Chief of Police [1973] AC 761, a constitutional appeal from St Christopher, Nevis and Anguilla. The Privy Council’s decision in that case was informed by decisions of the courts of Canada (Roncarelli v Duplessis (1959) 16 DLR (2d) 689), India (principally Gopalan v State of Madras [1950] SCR 88 and Indulal v The State AIR (50) (1963) Gujarat 259), Pakistan (Safdar v Province of West Pakistan (1964) 16 All Pak LD (Lahore) 718) and the United States (including the cases of Saia v New York 334 US 588 (1948) and Kovacs v Cooper 336 US 77 (1949) which appear to be in conflict).

  146. Francis had used a loudspeaker at a public meeting without having obtained permission from the Chief of Police to do so. A local statute made it an offence to use any “noisy instrument” at a public meeting or procession without such permission. Did that requirement of permission contravene the guarantee of freedom of communication conferred by s.10 of the St Christopher, Nevis and Anguilla Constitution? The Privy Council declined to strike down the requirement but limited its operation. Delivering their Lordships’ advice, Lord Pearson said this (at pp 772H-773A):

    Whatever may be the exact construction of section 10, it must be clear that

    (1)

    a wrongful refusal of permission to use a loudspeaker at a public meeting (for instance if the refusal is inspired by political partiality) would be an unjustified and therefore unconstitutional interference with freedom of communication, because it would restrict the range of communication, and

    (2)

    some regulation of the use of loudspeakers is required in order that citizens who do not wish to hear what is said may be protected against ‘aural aggression’ if that might reach unbearable intensity.

    [emphasis supplied]

  147. The law calls upon ordinary highway users to accommodate demonstrators’ freedom to demonstrate by tolerating some interference with their own right to pass and re-pass along the highway. They are expected to show such tolerance even if they do not sympathise with the demonstrators’ cause. Hopefully they will do so with patience born of the sentiment expressed in the English Court of Appeal in R v Home Secretary, ex parte O’Brien [1923] 2 KB 361. There Scrutton LJ famously said (at p.382) that “[i]t is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all”.

  148. Then there is the other side of the coin. The law also calls upon demonstrators to accommodate other people’s rights, especially ordinary highway users’ right of free passage. For that purpose demonstrators have to tolerate some interference with their own freedom to demonstrate. Such tolerance is expected of demonstrators however strongly they may feel about their cause. Hopefully they will understand the point made by John Stuart Mill in his timeless essay "On Liberty" (1859). He wrote, I take it from p.72 of ISBN 1-85715-081-3, that “[a]s soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion.”

  149. Having looked at both sides of that coin, one is reminded of what the Privy Council said in Attorney General v Lee Kwong-kut [1993] AC 951 at p.975 C-D and we repeated in the mandatory life sentence case of Lau Cheong v HKSAR (2002) 5 HKCFAR 415 at p.449 D-E. This is that the courts often are required “to maintain the balance between the individual and the society as a whole”.

    POWERS OF ARREST

  150. Section 50(1) of the Police Force Ordinance, Cap. 232, says:

    50.

    (1)

    It shall be lawful for any police officer to apprehend any person who he reasonably believes will be charged with or whom he reasonably suspects of being guilty of -

    (a)

    any offence for which the sentence is fixed by law or for which a person may (on a first conviction for that offence) be sentenced to imprisonment; or

    (b)

    any offence; if it appears to the police officer that service of a summons is impracticable because -

    (i)

    the name of the person is unknown to, and cannot readily be ascertained by, the police officer;

    (ii)

    the police officer has reasonable grounds for doubting whether a name given by the person as his name is his real name;

    (iii)

    the person has failed to give a satisfactory address for service; or

    (iv)

    the police officer has reasonable grounds for doubting whether an address given by the person is a satisfactory address for service.

  151. To be constitutional those powers of arrest have to be read in a sense consistent with freedom of the person and freedom from arbitrary arrest, both guaranteed by art. 28 of the Basic Law. Read literally s.50 appears to consist of two discrete bases for arrest: one being reasonable belief that a person will be charged with an offence and the other being reasonable suspicion that he is guilty of an offence. But it would be sinister if a police officer reasonably believed that a person would be charged with an offence even though he did not reasonably suspect him of being guilty of it. I cannot imagine that any right-thinking police officer would wish to effect an arrest in that state of mind. Section 50(1) must therefore be read as requiring reasonable suspicion of guilt. Of course the fact that a person is eventually acquitted of an offence does not necessarily mean that the police officer who arrested him for that offence could not have reasonably suspected him of being guilty of it.

    REASONABLE SUSPICION OF AN UNREASONABLE OBSTRUCTION

  152. As I have noted, pedestrians might have had to make a detour past these demonstrators. Was the presence of these demonstrators open to a reasonable suspicion of amounting to an unreasonable obstruction? “Yes” argued the respondent’s first leader Mr. Gerard McCoy SC. Ably as always, he urged everything that can possibly be put forward in support of that argument. But he properly volunteered a concession. He conceded that not every gathering of demonstrators at the spot in question would have been open to a reasonable suspicion of amounting to an unreasonable obstruction. For example, he said, a gathering of two elderly ladies could not possibly be open to such a suspicion.

  153. Whereupon Mr. Paul Harris for the appellants pertinently pointed to a counter-proposal made to the police’s proposal that the demonstrators move to a nearby spot. This counter-proposal was that the four hunger strikers be permitted to remain for three days where they were. The respondent’s second leader Mr. Kevin Zervos SC properly conceded that a hunger strike is a legitimate form of demonstration. Demonstrators naturally want their demonstration to make an impact. And the hunger strikes that make an impact tend to be ones lasting at least a few days. Each of them sitting peaceably on the ground in the lotus position, these four hunger strikers were positioned side-by-side and close together. I see no material difference between such a gathering and the one in Mr. McCoy’s example of two elderly ladies. And I do not think that it would be right to ignore the counter-proposal when deciding whether this demonstration was open to a reasonable suspicion of amounting to an unreasonable obstruction. But even if the counter-proposal were ignored, I would still be of the view that this demonstration was not open to such a suspicion.

  154. Albeit wrongly, the magistrate found the demonstrators guilty of public place obstruction. Not surprisingly therefore, he did not consider the question of whether, although they were not guilty, the arresting officers nevertheless reasonably suspected that they were. Having quashed the public place obstruction convictions, the Court of Appeal had to answer that question. They had to do so in order to deal with the other convictions. For it was an essential ingredient of the other offences that the police officers concerned were acting in the due execution of their duty. They would be if, but only if, the arrests for public place obstruction were lawful. And those arrests would be lawful if, but only if, the arresting officers reasonably suspected that the demonstrators were guilty of public place obstruction.

  155. Taking a view which I feel unable to share, Woo VP said that “there can be no nexus between the arrests of the appellants by the police on the pavement outside 160 Connaught Road West and the conduct of the appellants after the vehicle carrying them arrived at the Western Police Station”. So he omitted to consider whether the arresting officers reasonably suspected that the demonstrators were guilty of public place obstruction. Regrettably therefore, we do not have the benefit of his views on the question of reasonable suspicion.

  156. Chief Judge Ma thought that there was a basis for reasonable suspicion. It is clear that he thought that Superintendent Chiu and Senior Inspector Wong had such suspicion. The superintendent gave the order to arrest, and the chief inspector communicated it to the arresting officers i.e. those who physically executed the arrests. Although he did not say so in terms, I think that the Chief Judge should be understood to have thought that the arresting officers, too, reasonably suspected that the demonstrators were guilty of public place obstruction.

  157. Mr. Justice Stock JA said: “I do not accept that such suspicion as the Superintendent may have nursed that a public place obstruction offence had been committed was reasonably based”. Later on in his judgment Stock JA said:

    We have not been taken to the evidence of the officers named in charges 3 to 6 (charge 7 did not involve an arresting officer) as part of any attempt to demonstrate that they could not have harboured the requisite state of mind. Indeed, we do not have the transcript of the testimony of Inspector. Ho (charge 3) or of WPC Wong (charges 4 and 5), but only of WPC Chan (charge 6) and Inspector Chan (charge 7). In so far as it seems clear that the magistrate did address the question of the states of mind of the arresting officers, it seems to me to be difficult for the appellants to demonstrate, without reference to the effect of their testimony that his conclusion was erroneous.

    Now the immediate problem with that is this. The magistrate did not consider the question of whether, although the demonstrators were not guilty of public place obstruction, the arresting officers nevertheless reasonably suspected that they were. And even if the magistrate had considered that question, the Court of Appeal were in as good a position as he was to decide the objective element of the question i.e. the reasonableness of the suspicion. So the Court of Appeal should have considered that element afresh. They should have done so by examining all the material evidence. That task is now for us to perform.

  158. Still later on in his judgment Stock JA dealt with the briefings which the arresting officers had received and with the conduct of the two witnesses the transcript of whose testimony the Court of Appeal did not have, saying:

    I think that it can reasonably be said that an officer who is given a briefing that an obstruction has taken place, and is told that those who were obstructing and still in situ, and then himself or herself sees persons fitting the description of the described group actually occupying the described place has reasonable, even if mistaken, grounds for suspecting the earlier commission of the offence. It must follow from this that the conduct of Inspector Ho who was party to the arrests and of WPC Wong in effecting arrests was lawful; and it is. therefore difficult to conclude other than that their conduct in taking the appellants to the police station, and in removing them from the van, was other than conduct in the lawful execution of their duty.

    We have the transcript of those two witnesses’ testimony. And their testimony does not advance the respondent’s case beyond the point to which the other evidence takes it.

  159. Section 50(1) of the Police Force Ordinance is to be described in the way in which Lord Steyn described s.12(1) of the Prevention of Terrorism (Temporary Provisions) Act 1984 in O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286. In a speech with which Lords Goff of Chieveley, Mustill and Hoffmann agreed while also agreeing with Lord Hope of Craighead’s speech, Lord Steyn said (at p.292F) that “.... section 12(1), and similar provisions .... categorise as reasonable grounds for suspicion only matters present in the mind of the [arresting officer]”.

  160. I would not attempt an exhaustive definition of arresting officer. But I think that this much can be said. Essentially an arresting officer is the one who takes an accused into custody by conduct such as, typically, laying hands on him. But it can be by conduct such as pointing a weapon at him. Indeed it can be by conduct such as directing a verbal command at him backed by an obvious preparedness to use physical force if necessary.

  161. Constitutionally and obviously, s.50(1A) of the Police Force Ordinance states that a police officer may exercise his power to apprehend a person under subsection (1) “whether or not he has seen any offence committed”. I call that obvious because it is inherent in the concept of reasonable suspicion. Reasonable suspicion can be - and I expect usually is - generated by information. Both in the House of Lords and in the European Court of Human Rights (where it is constituted as O’Hara v United Kingdom [2002] 34 EHRR 32), O’Hara's case was treated as one of reasonable suspicion generated by information.

  162. What information or assessment given to him at a briefing would suffice to generate reasonable suspicion in an arresting officer’s mind must depend on the circumstances of each case. Suppose a briefing fails to generate a reasonable suspicion in an arresting officer’s mind. Even so, it can happen that the situation that he finds at the scene of arrest will, on its own or together with the briefing, generate such a suspicion. Conversely it can happen that a reasonable suspicion generated in an arresting officer’s mind by a briefing will be dispelled by the situation that he finds at the scene.

  163. There is no evidence that the briefings in the present case dealt adequately if at all with the element of reasonableness. Those briefings suffice for a conclusion that the arresting officers formed a reasonable suspicion that the demonstration amounted to an obstruction. But they do not suffice for a conclusion that the arresting officers formed a reasonable suspicion of an unreasonable obstruction. And the evidence as to the situation which these arresting officers found at the scene of arrest does not reveal a situation capable of causing or contributing to a reasonable suspicion of an unreasonable obstruction. Indeed the situation was more apt to dispel any suspicion of an unreasonable obstruction. The being so, the arrests of the demonstrators were unlawful.

  164. I have every sympathy for all the police officers in this case. But I do not feel able to say that they were acting in the due execution of their duty. That being so, the convictions for obstructing a police officer in the due execution of his duty and for assaulting a police officer in the due execution of his duty cannot stand. It is unnecessary to consider whether, on the charge of obstructing a police officer in the due execution of his duty, the appellants would in any event have a defence on the basis that they were innocent demonstrators merely resuming the exercise of their freedom of demonstration.

    SUBSTITUTION

  165. In regard to the convictions for assaulting a police officer in the due execution of his duty, there remains the question of substituting convictions for common assault. But the problem with such a course is this. There was never any focus at the trial on the question of common assault. Defence counsel’s efforts were concentrated on the issue of whether the police officers were acting in the due execution of their duty. The material evidence was not as clear as it might have been. Substitution is more naturally within the province of an intermediate appellate court than a final appellate court. And we do not have the benefit of the Court of Appeal’s opinion on substitution in the present case. All things considered, I do not think that it would be appropriate for us to order substitution now.

    DELAY

  166. The appellants succeed without having to rely on their complaint of delay developed in a balanced argument which Mr. Philip Dykes SC presented and Mr. Harris adopted. So all that I would say about delay is this. A heavy workload can make delay difficult to avoid. So can other factors. Even so, it always remains important to give judgment expeditiously. I agree with what the other members of the Court say in this connection.

    CONCLUSION

  167. For the foregoing reasons, I would allow the appeal to quash all the convictions without substituting any other conviction. As to costs, I agree with the other members of the Court.

  168. While justice to the appellants requires the quashing of their convictions without any substitution, justice to the police officers involved in this case requires this acknowledgement. They were, as police officers so often are, confronted with an extremely difficult situation. Far from deserving any criticism, they deserve praise for the patience and restraint with which they conducted themselves.

  169. The Court unanimously allows the appeal. The costs of this appeal are to be paid by the respondent to the appellants with an order for legal aid taxation of the costs of those appellants who are on legal aid. In relation to the costs in the courts below, the parties are at liberty to make any necessary application in writing to this Court.


Cases

Nagy v Weston [1965] 1 All ER 78

Hirst and Agu v Chief Constable of West Yorkshire (1987) 85 Cr App R 143

DPP v Jones [1999] 2 AC 240

Harper v G N Haden & Sons Ltd [1933] 1 Ch. 298

Christie v Leachinsky [1947] AC 573

Griffin v Coleman (1859) 4 H&N 265

Fox, Campbell and Hartley v UK (1990) 13 EHRR 157

O’Hara v UK (2002) 34 EHRR 32

O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286

Castorina v The Chief Constable of Surrey (CA), The Times 15 June 1988

Hussien v Chong Fook Kam [1970] AC 942

Clarke v Chief Constable of North Wales Police [1997] EWCA Civ 2432 (7 October 1997)

Chapman v DPP (1988) 153 JP 27

McKee v Chief Constable for Northern Ireland [1984] 1 WLR 1358

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Mohammed-Holgate v Duke [1984] AC 437

Rogerson v Australia UN Human Rights Committee Reference 802/98 (15 April 2002)

HKSAR v Leung Kwok Hung [2004] 3HKLRD 729

Police v Beggs [1999] 3 NZLR 615

R v Chiswick Police Station Superintendent, ex parte Sacksteder [1918] 1 KB 578

Lowdens v Keaveney [1903] 2 IR 82

Original Hartlepool Collieries Co. v Gibb (1877) 5 Ch D 713

R v Clark (No. 2) [1964] 2 QB 315

Ex parte Lewis (1888) 21 QBD 191

Hickman v Maisey [1900] 1 QB 752

Hague v Committee for Industrial Organization 307 US 496 (1938)

Frisby v Schultz 487 US 474 (1987)

Levy v Victoria (1997) 189 CLR 579

M’Ara v Magistrates of Edinburgh 1913 SC 1059

Committee for the Commonwealth of Canada v Canada (1991), 77 DLR (4th) 385

De Jonge v Oregon 299 US 353 (1937)

Schneider v State 308 US 147 (1939)

Francis v Chief of Police [1973] AC 761

Roncarelli v Duplessis (1959) 16 DLR (2d) 689)

Gopalan v State of Madras [1950] SCR 88

Indulal v The State AIR (50) (1963) Gujarat 259

Safdar v Province of West Pakistan (1964) 16 All Pak LD (Lahore) 718

Saia v New York 334 US 588 (1948)

Kovacs v Cooper 336 US 77 (1949)

R v Home Secretary, ex parte O’Brien [1923] 2 KB 361

Attorney General v Lee Kwong-kut [1993] AC 951

Lau Cheong v HKSAR (2002) 5 HKCFAR 415

Legislations

Summary Offences Ordinance, Cap 228: s.4, s.4A

Offences Against the Person Ordinance, Cap 212: s.36

Police Force Ordinance, Cap 232: s.50, s.63

Basic Law: Art.27, Art.28, Art.39

Hong Kong Bill of Rights: Art.5, Art.11, Art.16, Art.17

International Covenant on Civil and Political Rights: Art.19, Art.21

European Convention on Human Rights: Art.5

International Covenant on Civil and Political and Rights: Art.14.3, Art.14.5

Authors and other references

Lester & Pannick: Human Rights Law and Practice, 2nd ed.(2004)

Prof. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993)

John Stuart Mill, "On Liberty" (1859)

Representations

Mr. Philip Dykes SC and Mr. Paul Harris (instructed by Messrs Ho, Tse, Wai & Partners, assigned by the Legal Aid Department) for the 4th, 5th, 6th and 8th appellants

Mr. Paul Harris and Mr. Cheung Yiu Leung (instructed by Messrs Ho, Tse, Wai & Partners) for the 1st, 2nd, 3rd and 7th appellants

Mr. Gerard McCoy SC (instructed by the Department of Justice), Mr. Kevin P Zervos SC and Mr. Robert KY Lee (of that Department) for the respondent


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