Final Appeal No 3/2014 (civil)

IpsofactoJ.com: International Cases [2014] Part 9 Case 5 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

T

- vs -

Commissioner of Police

CHIEF JUSTICE GEOFFREY MA

JUSTICE R.A.V. RIBEIRO PJ

JUSTICE ROBERT TANG PJ

JUSTICE JOSEPH FOK PJ

LORD NEUBERGER OF ABBOTSBURY NPJ

10 SEPTEMBER 2014


Judgment

Chief Justice Ma

  1. The issues for determination in this appeal concern s 4 of the Places of Public Entertainment Ordinance Cap 172 (“the PPEO”),[1] which requires a licence to be obtained by any person who keeps or uses “any place of public entertainment”. There are two issues, in broad terms: the meaning of a “place of public entertainment” and the constitutionality of the licensing regime under the PPEO. The determination of these issues give rise to important consequences as far as the holding of public entertainment on public streets or other publicly accessible places in Hong Kong is concerned.

  2. For the reasons which appear in the comprehensive judgment of Mr Justice Ribeiro PJ, with which I fully agree, this appeal should be allowed. However, in view of the divergence of views among the members of the Court, I ought briefly to emphasize a few points regarding the first issue, which involves an exercise in statutory construction. According to the Court of Appeal and the majority in this Court, the meaning of a “place of public entertainment” should be restricted to a place where there is controlled admission. By controlled admission, I take this to mean some form of control over the admission of persons into a place, with the ability to exclude such persons from entry into that place. Accordingly, public streets or a section thereof and other public places to which the Ordinance might otherwise apply, unless there is this element of controlled admission, would be outside the ambit of s 4 of the Ordinance. The view of the Court of Appeal was that as far as streets to which the public had access were concerned, they would come within s 4 only if the relevant area where the entertainment took place, was cordoned off or enclosed.  The declaration sought by the Applicant in the judicial review proceedings (the Respondent in the present appeal) was that s 4 did not include “an open space area (not being enclosed)”. Before us, counsel for the Applicant[2] argued that the element of controlled admission had to be present.

  3. It is unnecessary for me to set out the facts; they are amply described in the judgments of Mr Justice Ribeiro PJ and Mr Justice Fok PJ. The relevant provisions in the PPEO to construe are s 4 which uses the term “place of public entertainment” and the interpretation provision, s 2, which defines this term and in doing so refers to the words “public entertainment”:-

  4. 2.

    Interpretation

    ....

    “place of public entertainment” (公眾娛樂場所) means –

    (a)

    so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

    (b)

    any vessel,

    in or on which a public entertainment is presented or carried on whether on one occasion or more.

    “public entertainment” (公眾娛樂) means any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment.

    4.

    Licences for places of public entertainment

    (1)

    No person shall keep or use any place of public entertainment without a licence granted under this Ordinance.

    (2)

    Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable to conviction to a fine at level 4 and imprisonment for 6 months, and to a further fine of $2,000 for every day during which the offence has continued.

    For completeness, I would also refer to the definition in Chinese of “public entertainment”:

    公眾娛樂”(public entertainment) 指本條例所指的讓公眾入場的任何娛樂,而不論是否收取入場費;

  5. The proper construction of the provisions just set out is critical in the present case. The starting point in any exercise of statutory interpretation is to look at the context and purpose of the relevant provisions. As has been stated and reiterated in numerous recent decisions of this Court,[3] it is to context and purpose that one looks first in examining the words under scrutiny. One does not begin by looking at what might be termed “the natural and ordinary meaning”, much less I would add a literal meaning, and then put the onus on anyone seeking to advance different meaning to establish some ground which compels acceptance of that different meaning.[4] It is context and purpose that will, in the vast majority of cases, be determinative of the meaning of the words sought to be construed, rather than attempting as a starting point to look at words in a vacuum.

  6. In the case of the PPEO, the context and purpose of the Ordinance is clear: it is public safety. The title of the statute emphasizes the public nature of it, and the contents of both the Ordinance and the Regulations thereunder deal predominantly with issues of safety. There is also an associated purpose which is clear from the contents of the Ordinance, namely that pre-planning (which involves risk assessment) is very much seen to be an integral part of public safety. By pre-planning I mean the requirement in obtaining a licence under the PPEO to give notification 42 days prior to the event to a number of different government departments, as may be appropriate, such as the Commissioner of Police, the Director of Fire Services, the Director of Housing, the Building Authority, the Director of Marine and the Director of Electrical and Mechanical Services. While provisions in other Ordinances to which we have been referred do involve aspects of public safety,[5] they enable the police to take action only as and when incidents or situations suddenly occur. In other words, they do not cater for any form of precautionary measures regarding public safety to be taken. The closest Ordinance in this respect is perhaps the requirement to give notice of a “public meeting” under s 7 of the Public Order Ordinance, but, as can be seen from the interpretation section of that Ordinance,[6] the ambit is limited.

  7. With this approach in mind, I turn to the exercise of construing the relevant provisions of the PPEO identified earlier.

  8. The critical words to be examined are the “place of public entertainment” to which the PPEO applies. Here, the definition of those words[7] refer to “any place, building, erection or structure”. The places intended to be covered are wide and, in view of the context and purpose of the Ordinance, intended to be so, although I accept there are limits as articulated by Mr Justice Ribeiro PJ.[8] What is clear, however, is that it makes no sense artificially to cut down the wide meaning of the word “place”. In view of what the Ordinance seeks to achieve, in adopting a purposive approach to statutory construction, this must be right.

  9. Mr Pun argues that the Ordinance, in particular s 4, can only apply in a limited way: as stated above only to places where there is the element of controlled admission. Is this right? Like Mr Justice Ribeiro PJ, I am not persuaded.

  10. First, nothing in the Ordinance, apart from the use of the word “admitted” in the definition of “public entertainment”, remotely suggests that controlled admission to a place is a pre-requisite to the applicability of the licensing regime under the Ordinance. There are of course references in the Ordinance relating to the admission of persons to a place,[9] but there are also many provisions that do not.

  11. Secondly, I can see neither policy reasons nor commonsense to restrict the application of the Ordinance in the way advanced by the Applicant.

  12. The use of the word “admitted” in the definition of “public entertainment” in s 2 of the PPEO, which is crucial to the Applicant’s case, does not on analysis compel this restrictive view of the Ordinance either:-

    1. The first observation to make is that the word “admitted” qualifies the word “entertainment”.[10] In context, as a matter of language alone, the meaning of the word “admitted” is not used in the physical sense of being allowed entry into a place. It is used to emphasize the public nature of the entertainment to which the Ordinance applies, that is, entertainments to which the public has access as opposed to those entertainments to which the public does not have access.

    2. However, Mr Pun submits that the words “public entertainment” appear in the definition of “place of public entertainment” and therefore as a matter of construction, the word “admitted” becomes applicable to the place of public entertainment. One obvious flaw to this argument is that it involves changing the applicability of the word “admitted” from “public entertainment” to the “place of public entertainment”. Nothing in the language of the Ordinance warrants this approach.

    3. More important, even if it were somehow permissible to transpose or alter the meaning the word “admitted” in this way, it is difficult to see how this can then result in the legal requirement that the Ordinance only applies to places where there is controlled admission. As a matter of statutory drafting, this seems a very odd way, to say the least, to prescribe such an important legal requirement; almost, as it were, by a side wind. As indicated earlier, nothing in the rest of the Ordinance suggests this.

    4. It is even more difficult to arrive at this conclusion when one returns to the context and purpose of the Ordinance. To say that the Ordinance applies only to places, and public places at that, where there is controlled admission, artificially limits the application of the Ordinance in a way that does not make sense.

    5. Reference to the Chinese text[11] provides little assistance as well. Read literally and in a vacuum, the words in Chinese admittedly envisage a physical entry into a place, but those words refer again only to “public entertainment’ and not “place of public entertainment”. Moreover, insofar as any doubt exists as between the Chinese and English texts, s 10B of the Interpretation and General Clauses Ordinance, Cap 1,[12] requires that regard must be had to the object and purposes of the relevant Ordinance.

  13. I am of course aware that whatever be the policy and purpose of any Ordinance, the Court cannot give a meaning to words in a statute which those words are incapable of bearing.[13] The way Mr Justice Ribeiro PJ and I have looked at the matter does not involve giving words a meaning they are incapable of bearing. 

  14. I find it difficult to accept that the Applicant’s construction of the statute, which has the consequence of creating the artificial requirement of controlled admission, could ever have been the intent of the Ordinance. It would make the PPEO inapplicable to events such as the present one where, at least potentially, if not actually, large numbers of people gathered in a public street. In such a situation, the PPEO would apply to public streets or places, or a part thereof, where there existed this element of controlled admission (such as where a part was cordoned off), but the Ordinance would be inapplicable where this element was missing, albeit the same street was involved where there may be even more people present. Neither the language of the Ordinance, nor certainly its purpose, compels this result. 

    Justice Ribeiro PJ

  15. This appeal concerns the scope of the duty to obtain a licence imposed by the Places of Public Entertainment Ordinance (“PPEO”).[14] In the Courts below, Lam J (as Lam VP then was) held that events like the event in question required such a licence.[15] The Court of Appeal disagreed.[16]

  16. A. The facts

  17. The facts are not in dispute. Since 2005, supporters of “LGBTI”[17] rights in Hong Kong, as in other countries, have commemorated the removal in 1990 by the World Health Organization of homosexuality from its list of mental disorders. They have done so by organizing an event to celebrate International Day Against Homophobia (known as “IDAHO”). Their purpose has been to raise the public’s awareness of anti-discrimination, equal opportunities and anti-homophobia issues, and to provide a platform for the LGBTI community to express their views and to share experiences of those issues.

  18. The 7th IDAHO event was scheduled to be held on Sunday, 15 May 2011, between 3.00 pm and 5.00 pm in a portion of Lockhart Road between East Point Road and Cannon Street which would then serve as a designated pedestrian precinct closed to traffic (“the pedestrian precinct”).[18] It was co-hosted by certain LGBTI and human rights organizations including Tongzhi Community Joint Meeting and Amnesty International Hong Kong. 

  19. The organizers notified the Commissioner of Police of the intended event and provided information, “including a map indicating the exact location of the IDAHO and the place where a stage would be erected” and a “draft programme rundown”.[19] They received a Notice of No Objection in accordance with the Public Order Ordinance (“POO”)[20] but were told by the Police that they might require a temporary licence under the PPEO. They were advised to raise this with the Director of the Food and Environmental Hygiene Department (“FEHD”), the designated licensing authority.[21] This the organizers duly did, submitting an application for such a licence which identified the place of the proposed entertainment and stated that a temporary stage (with dimensions not exceeding 13 x 8 x 13 ft) was proposed; that the venue would be open on all sides; and that 30 volunteers would assist.

  20. The FEHD circulated the application to six government departments[22] including the Commissioner of Police. After reviewing the application, the Commissioner wrote to the FEHD on 9 May 2011 stating that he had no objection subject to the applicant preparing an evacuation plan and ensuring that the conditions imposed by the Fire Services Department, the Buildings Department, the Environmental Protection Department and the FEHD were fully complied with. The Commissioner also recommended that additional conditions be included “for public safety and order”, including the provision of at least 30 marshals; ensuring a smooth flow of pedestrians at the venue and not occupying more than one vehicular lane at any time.

  21. On 12 May 2011, the organizers withdrew their application stating that “there will not be any ‘Entertainment’ activities during the IDAHO on 15 May 2011”. This was acknowledged by the FEHD which informed the other departments on 13 May 2011 of the application’s withdrawal.

  22. The IDAHO event began with speeches given on the stage on the themes mentioned above. At about 3.30 pm, what is now accepted to have been a dance performance (and therefore an “entertainment”[23] for PPEO purposes) began and drew about 150 to 200 participants. It was due to last for about 20 minutes but stopped after 10 minutes when a police inspector told the organizers that what they were doing required a temporary licence under the PPEO and involved committing an offence since they had none. The IDAHO event continued with readings about torture, arbitrary arrest and imprisonment suffered by homosexuals around the world. It ended at 4.30 pm, about 30 minutes earlier than scheduled. No one has been prosecuted over this incident.

  23. B. Application for judicial review

  24. Some seven months later, the applicant, who was one of the participants in the IDAHO event, sought leave to bring judicial review proceedings to challenge the position taken by the Police in requiring the dance performance to be halted for want of a PPEO licence. Although the applicant was well out of time, Lam J granted him leave to apply for judicial review seeking:

  25. .... a declaration that a place of public entertainment, for the purposes of the PPEO, does not include an open space area (not being enclosed) where a political demonstration occurs;

    or alternatively,

    .... a declaration that sections 2 and 4 of the PPEO to the extent that a place of public entertainment, for the purposes of the PPEO, does include an open space area (not being enclosed) where a political demonstration occurs” are inconsistent with Articles 27 and 39 of the Basic Law of the HKSAR .... and/or Articles 16(2) and 17 of the Hong Kong Bill of Rights .... of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 and/or Articles 19 and 21 of the International Covenant on Civil and Political Rights 1966 ...., and are unconstitutional.

    C. The main PPEO provisions engaged

  26. It will be necessary later to examine the overall structure of the PPEO and the Places of Public Entertainment Regulations (“PPER”). For the present, to facilitate discussion of the decisions below, the main PPEO provisions relevant are set out as follows.

  27. Section 4(1) lays down the duty to obtain a licence in the following terms:

  28. No person shall keep or use any place of public entertainment without a licence granted under this Ordinance.[24]

  29. Three definitions are relevant to that duty:

  30. “entertainment” includes any event, activity or other thing specified in Schedule1;

    “public entertainment” means any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment.

    “place of public entertainment” means -

    (a)

    so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

    (b)

    any vessel,

    in or on which a public entertainment is presented or carried on whether on one occasion or more; ....

  31. Schedule 1, referred to in the definition section, lists the activities that constitute “entertainment” as follows:

  32. 1.

    The events, activities and other things referred to in the definition of “entertainment” in section 2 of this Ordinance are the following or any part of any of them-

    (a)

    a concert, opera, ballet, stage performance or other musical, dramatic or theatrical entertainment;

    (b)

    a cinematograph or laser projection display;

    (c)

    a circus;

    (d)

    lecture or story-telling;

    (e)

    an exhibition of any 1 or more of the following, namely, pictures, photographs, books, manuscripts or other documents or other things;

    (f)

    a sporting exhibition or contest;

    (g)

    a bazaar;

    (h)

    ....

    (i)

    an amusement ride within the meaning of the Amusement Rides (Safety) Ordinance (Cap 449) or any mechanical device (other than such an amusement ride) which is designed for amusement;

    (j)

    a dance party.

    2.

    In this Schedule “stage performance” includes a tragedy, melodrama, comedy, farce, pantomime, revue, burlesque, burletta, shadow play, an exhibition of dancing, conjuring or juggling, an acrobatic performance and any other stage event including an interlude.

    3.

    In this Schedule, “dance party” means an event with all of the following attributes-

    (a)

    music or rhythmic sound of any kind or source is provided at the event;

    (b)

    the primary activity at the event is dancing by the persons attending the event;

    (c)

    either-

    (i)

    the number of persons attending the event exceeds 200 on at least one occasion during the event; or

    (ii)

    any part of the event occurs between 2 a.m. and 6 a.m.

    D. Lam J’s decision

  33. As reflected in the first declaration sought, the construction argument advanced on behalf of the applicant before Lam J, had two elements. It was submitted, first, that the dance performance was not “entertainment” because its sole or dominant purpose was not to provide entertainment but rather, to stage a political demonstration.[25] Lam J rejected that argument, holding that the applicability of a statutory scheme to protect public safety could not depend on a highly subjective criterion regarding the dominant purpose of a dance performance, especially since an artistic performance conveying a political message could also aim to be entertaining.[26] The Court of Appeal agreed[27] and that argument is no longer pursued.

  34. The second contention was that the expression “place of public entertainment” does not encompass an open space that is not enclosed. That is an argument to which I shall return. It rested on the concept of the general public being “admitted with or without payment” in the definition of “public entertainment”. The argument was that while a “place of public entertainment” could be an outdoor place, it had to be “a place where there is some form of physical demarcation and the organizer can exercise control by way of admission or non-admission of audience”.[28]

  35. It was rejected by Lam J who held that for the PPEO to apply, it was unnecessary for the organizer of a public entertainment to have exclusive control over attendance; that the place where the IDAHO event was held was sufficiently demarcated; and that the conditions imposed ensured that the organizers had sufficient control “to satisfy the criterion of admission”. His Lordship concluded that in the PPEO context, “the word ‘place’ should .... be given its ordinary meaning which includes an open space or a portion of a street which is not enclosed”.[29]

  36. Turning to the constitutional objection, Lam J accepted that the licensing regime does involve a restriction on the right to peaceful assembly under Article 17 of the Bill of Rights.[30] However, he rejected the unconstitutionality complaint, holding that the PPEO did not lack legal certainty;[31] that the Ordinance pursued a legitimate purpose; that the licensing requirements were rationally connected to achieving that purpose; and that those requirements were a proportionate measure.[32] Lam J therefore dismissed the application for judicial review.

  37. E. The Court of Appeal’s decision

  38. The Court of Appeal disagreed with Lam J’s construction in one crucial respect. Their Lordships essentially accepted the argument rejected by Lam J, that a place could only qualify as a place of public entertainment if it was physically cordoned off or enclosed, enabling the organizer to exercise control by way of admission or non-admission of the audience.

  39. Focusing on the definition of “public entertainment”, Cheung CJHC (with whom the other members of the Court of Appeal agreed) stated:

  40. .... the crux of the arguments turns on the reference in the definition to the general public being ‘admitted, with or without payment’ to the entertainment in question. In my view, this implies, or at least suggests, that the organiser or performer of the entertainment has, or is entitled to exercise, a certain degree of control as a matter of law; or exerts, or purports to exert, a certain degree of control as a matter of fact, over the place in which the entertainment is presented or carried on, so as to enable him to admit, or as the case may be, exclude members of the public from the entertainment.[33]

  41. His Lordship noted that the definition “refers to admitting the general public to the entertainment, rather than to the place of entertainment”, but held that “it does not make any difference”: “Admission to an entertainment connotes the idea of admission to the locality where the entertainment takes place”.[34]

  42. Cheung CJHC considered the essential element of control necessarily lacking “with an entertainment carried on in a public street where access of the public to the portion of the street in question is not restricted by the relevant authorities, and the portion of the street is not otherwise enclosed or cordoned off by the organiser or performer.”[35] He elaborated as follows[36]:

  43. .... the very idea of admitting involves the possibility of rejecting admission or excluding people from the entertainment. In the case of a public street, no member of the general public can be said to be ‘admitted’ or denied admission to an entertainment carried on there, or, to the place of entertainment in question, absent any authorisation by the Government to the organiser or performer to so control admission, or absent any unilateral attempt by the latter to do so by enclosing or condoning off the part of the street in question.

  44. His Lordship reiterated[37]:

  45. .... the very idea of the general public being admitted to an entertainment, or the place of entertainment, involves the ability on the part of the organiser or performer of the entertainment to control admission by admitting or excluding people, whether on terms (such as the sale of tickets) or unconditionally. That ability may be a legal one, such as a licence granted by the Government to so use the place together with the express or implied authority to admit or exclude people from that place.

  46. His Lordship envisaged an unauthorized exertion of de facto control over admission resulting in a public street being cordoned off or enclosed[38]:

  47. That ability may, conceivably, also be derived from a de facto exertion of control over admission. For instance, an organiser or performer may, without having obtained any necessary authority from the Government to do so, enclose or cordon off an area in a public street, within which the entertainment is presented or carried on, and exert or purport to exert the right to control admission to the enclosed or cordoned off area.

  48. Cheung CJHC concluded:

  49. Either way, it is crucial, in order to satisfy the definition of the general public being admitted to the entertainment in question, for the organiser or performer to have that ability to control admission.[39]

  50. Adding[40]:

  51. In reality, where a public street is involved, unless the place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.

  52. On the present facts, his Lordship noted[41]:

  53. There was never any application to the Government for authority or permission to use the pedestrian precinct in question in such a way as to give the organisers the ability to control admission to the pedestrian precinct. As a matter of fact, there was no attempt whatsoever on their part to exercise any such control on the day in question. Members of the public were as free as always to use the pedestrian precinct whether during the demonstration or the dance performance. We have seen videos taken of the events in question, as did the judge. What one sees is pedestrians, about their normal business, passing the area of the demonstration or performance, some glancing at it as they walk by, some pausing for a moment and then moving on, and some staying to watch. There was no question of the organisers admitting or not admitting the general public to the dance performance.

  54. The Court of Appeal concluded that the dance performance “though an entertainment, was not a public entertainment” and that “[neither] the pedestrian precinct nor the place of the performance was a place of public entertainment”.[42] The applicant was granted leave to amend his application for relief and was granted a declaration that the dance performance did not require a licence under the PPEO.[43] Having arrived at this result, the Court of Appeal did not deal with the constitutional issue.

  55. Mr Hectar Pun who appeared[44] on the respondent’s behalf, also put his case firmly on the necessity for the organizer to exercise control over admission to the place where the entertainment was to be presented before it could qualify as a “place of public entertainment” caught by the PPEO, although he did not support the Court of Appeal’s requirement that the site be physically cordoned off or enclosed. It suffices for now to note that both those approaches adopt as the central criterion for the PPEO’s application, the ability of the entertainment’s organizer to control admission of would-be entrants to (and their exclusion from) the place of its presentation. 

  56. F. The consequences of the Court of Appeal’s decision

  57. In the foregoing paragraphs I have set out the main lines of the Court of Appeal’s reasoning in its construction of the essential provisions. There were various supporting arguments which I shall discuss in due course. But I should say at once, with great respect, that I view the consequences of their Lordships’ decision with serious misgivings. 

  58. I accept, of course, that where an organizer presents an entertainment in private premises and charges for admission, he will naturally exert control over admission both to the entertainment and to the place in or at which the entertainment takes place. However, the PPEO covers entertainments “to which the general public is admitted with or without payment” and applies to “so much of any place .... whether temporary or permanent, capable of accommodating the public .... in or on which a public entertainment is presented or carried on ....” This is apt to cover free entertainment open to the general public, where access to the place of entertainment is unrestricted and the venue not cordoned off or enclosed – a not uncommon situation, as common experience shows. 

  59. As Cheung CJHC acknowledges[45]:

  60. There can be little doubt that the purpose of the Ordinance and the licensing regulations made under it is to provide a means of effectively ensuring public safety and order, and to protect the participants to entertainment from the hazard and dangers associated with the gathering of crowds at places of public entertainment.

  61. Given that premise, it is difficult to accept that it can have been the legislative intent to confine application of the statutory scheme only to entertainments which are presented in cordoned off or enclosed premises or areas where the organizer is able to regulate admission. Adoption of that criterion means that the PPEO’s precautionary safety regime is excluded in all other cases, however many members of the public may take part. And as the Court of Appeal points out, that criterion effectively excludes all entertainments taking place in public streets or spaces. 

  62. Entertainments staged in public open spaces for members of the public without participants having to gain admission to any cordoned off area are not at all uncommon. Nor are entertainments taking place on public roads or in public plazas at all rare. Pop concerts in a public park or square, attended by hundreds or even thousands of fans come readily to mind. Crowds of revellers throng the pavements, roads and public squares at New Year’s Eve countdown celebrations and at street carnivals staged in entertainment areas like Lan Kwai Fong or Times Square. Crowds are attracted to “fun” charity races which are regularly held on public streets involving waiters carrying trays of drinks, cooks tossing pancakes, or costumed teams bearing sedan chairs, to name but a few. The general public flocks to events such as the traditional Cheung Chau Bun Festival and the Lunar New Year parade of floats in Tsim Sha Tsui. Spectators position themselves on stretches of the waterfront or around typhoon shelters where traditional Dragon Boat races are staged. Sporting events[46] such as marathons or bicycle races are run on public roads. 

  63. To attend such events, members of the general public are not required to seek admission to any demarcated or cordoned off area. Why should the acknowledged statutory purpose of providing a means of effectively ensuring public safety and good order not apply on such occasions? If anything, one would have thought that open entertainments with fluid, unregulated attendance, have a particular need for precautionary planning under the statutory licensing regime. 

  64. Against the background of these misgivings, I have arrived at a construction of the relevant provisions which respectfully differs from that of the Court of Appeal. In my judgment, viewed as a matter of language, viewed purposively, historically and in the light of the decided cases cited, those provisions supply no justification for confining the PPEO’s application in the manner proposed by the Court of Appeal or by Mr Pun in this Court.

  65. G. The Issue of Construction

  66. As was recently re-iterated in HKSAR v Li Kwok Cheung George,[47] the Court in HKSAR v Lam Kwong Wai[48] and HKSAR v Cheung Kwun Yin,[49] affirmed the need generally to interpret statutory language in the light of its context and purpose, and not only when an ambiguity may be thought to arise. It was also re-affirmed that the context of a statutory provision is taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law.[50] Adopting that approach, I shall begin by examining the language of the main provisions relevant before considering more broadly the structure, purpose and history of the PPEO and the PPER.

  67. G.1  The language of the main provisions

  68. The main provisions are set out in Section C above. The starting-point is section 4 which lays down the duty to obtain a licence by making it an offence “to use or keep any place of public entertainment without a licence” granted under the PPEO. To ascertain the scope of that duty one therefore has to ask what constitutes a “place of public entertainment”. The PPEO gives that phrase a cumulative definition.

  69. It begins with the definition of “entertainment”. The PPEO stipulates that it includes “any event, activity or other thing specified in Schedule 1”. As we have seen, Schedule 1 is cast in broad terms and lists various items such as musical performances, exhibitions, sporting contests and (as in the present case) exhibitions of dancing.

  70. It moves next to the definition of “public entertainment”. The PPEO defines this as “entertainment” within the meaning of the Ordinance “to which the general public is admitted with or without payment”. It is of the first importance to note that by this definition, an entertainment becomes a public entertainment because the general public are “admitted” to the entertainment. It makes no mention of the place at which the entertainment is staged. It certainly does not impose any requirement that the general public have to be “admitted” to such a place before the duty to obtain a licence is triggered. As I have noted, the Court of Appeal thought that there was no difference between being admitted to an entertainment and being admitted to the place where it is to be staged, holding that “Admission to an entertainment connotes the idea of admission to the locality where the entertainment takes place”. I respectfully disagree on this crucial point, but before I seek to develop the argument, the final aspect of the cumulative definition should be examined.

  71. Building upon the first two definitions, the PPEO goes on to define “place of public entertainment” as:

    • so much of any place, building, erection or structure,

    • whether temporary or permanent,

    • capable of accommodating the public

    • and any vessel

    • in or on which a public entertainment is presented or carried on whether on one occasion or more.

  72. It is at this third stage that the Ordinance turns its attention to the place at which the public entertainment is presented. Having defined what amounts to a “public entertainment”, the PPEO sets out the characteristics of venues hosting public entertainments which fall within the section 4 duty. Once more, the definition says nothing about admission to or exclusion from the site. There is nothing to suggest that someone must exercise the power to admit or exclude would-be entrants before the venue qualifies as a “place of public entertainment”. Nor is there anything to suggest that the site must be cordoned off or enclosed. A place of public entertainment may, of course, be subject to regulated admission and may involve a cordoned off or enclosed area, but the definition does not mention, let alone confine the duty to, sites exhibiting such features. 

  73. It is an inclusive definition designed to cater for various different kinds of venue at which a public entertainment might take place. It may, but does not have to, consist of or to be located in a building or structure. It is sufficient if it consists of “so much of any place, .... whether temporary or permanent, capable of accommodating the public .... in or on which a public entertainment is presented or carried on whether on one occasion or more”.[51]

  74. Accordingly, when applied to a “place” (as opposed to a building, erection or structure), it is a definition with the following elements:

    1. The venue must plainly be identifiable as “a place” – an area whose boundaries are ascertainable by description or depiction on a plan, a map, a chart or otherwise;

    2. the place in question must be the site where the public entertainment is to be presented or carried on; and

    3. it must also be a place which is capable of accommodating members of the public.

    The venue will therefore generally have two parts. It will embrace both the part of the site where the entertainment is to be presented or held, such as a stage used by the performers or presenters; and that part of the site which accommodates the members of the public in attendance. The lay-out may of course vary and entertainers may venture into the audience area while members of the audience may be invited onto the stage, so that the two parts, while together constituting the “place of public entertainment”, are not mutually exclusive. The point to note is that the definition applies just as comfortably to places to which the general public has unrestricted access as to enclosed venues where admission is regulated. Its language furnishes no reason for distinguishing between them.

  75. The Court of Appeal’s reasoning rests crucially on the definition of “public entertainment” which distinguishes a “public entertainment” from an “entertainment” by specifying that the former is an entertainment “to which the general public is admitted with or without payment”. What the Court of Appeal has done is to transpose admission to the entertainment to admission to the place where the entertainment is to be presented, even though the concept of “admission” plays no part in the definition of “place of public entertainment”. The Court of Appeal proceeded from there to postulate that the requirement of admission applied to the place connotes control over entry to that place and implies an ability to admit some members of the public while excluding others. It held that this further implies that the locality must be cordoned off or enclosed to enable such control to be effectively exercised, leading to the conclusion that without such physical means of segregation, a venue cannot qualify as a “place of public entertainment” and no duty to obtain a licence arises. With respect, I do not think the Court of Appeal’s gloss on the statute is justified.

  76. The definition of a “public entertainment” is concerned with the nature of the entertainment in question. It is not about the characteristics of the site where it is presented. Having begun by defining an “entertainment” broadly, the PPEO proceeds to limit its application to an “entertainment .... to which the general public is admitted”. That phrase is properly understood as an entertainment to which the general public have access – an entertainment open to and staged for the enjoyment of the general public. This is in contradistinction to an “entertainment .... to which the general public is not admitted”. 

  77. The definition of “public entertainment” therefore aims to draw a distinction between entertainments accessible to the general public on the one hand, and private entertainments not so accessible on the other, making the PPEO applicable only to the former. A band which plays music at a private wedding party provides entertainment, but not entertainment to which the general public is admitted. The same applies to the presentation of a film or musical recital in a private club. To take a further example, a school play or performance by a school orchestra attended only by the pupils and their parents are not entertainments to which the general public is admitted. In such cases, the need to protect the safety and good order of the general public does not arise, and the statutory purpose of the PPEO is not engaged. Such private premises may well be subject to separate safety regimes, including, for instance, under the Clubs (Safety of Premises) Ordinance.[52]

  78. The definition so understood is straightforward. If the entertainment is one open to the general public (with or without payment and, one might add, whether anyone actually shows up to attend the performance), it qualifies as “public entertainment” and comes within the licensing regime. This applies whether or not the venue is cordoned off; whether or not admission to the site is controlled; and whether or not it comprises a portion of a public street or open space. This accords with the PPEO’s policy of promoting public safety at entertainments to which the general public is admitted. 

  79. G.2  Only entertainments on private property with regulated access 

  80. In my view, transposing the word “admitted” from the definition of “public entertainment” to the definition of “place of public entertainment” (where that word is not found) has a further unwarranted effect: It confines the operation of the PPEO’s safety scheme to entertainments which take place on private property. 

  81. This is because, in the Court of Appeal’s view, such transposition requires one to postulate that someone must have power to admit or exclude members of the public to or from the place where the entertainment is to be staged. That works perfectly well if the place in question is private property, but where the entertainment is presented in a public street or public open space, the notion of anyone controlling admission to the place where the entertainment is to be carried on is something of a contradiction in terms. How can the organizer or performer lawfully exclude members of the general public from what is, by definition, a public street or public open space? It follows that the “controlled admission criterion” has the effect of restricting the PPEO’s application to entertainments on private property, where admission can be controlled. 

  82. The Court of Appeal came close to recognizing that this highly restrictive view of the Ordinance is dictated by its construction, Cheung CJHC observing that “.... the very idea of admitting involves the possibility of rejecting admission or excluding people from the entertainment. In the case of a public street, no member of the general public can be said to be ‘admitted’ or denied admission to an entertainment carried on there, or, to the place of entertainment in question ....”[53] However, the Court of Appeal thought that there was still scope for the PPEO to apply to public entertainments presented in public streets or spaces because the government might authorize “the organiser or performer to so control admission”[54] or because an organizer might exert de facto control over admission without any prior authority from the government.[55] Mr Pun was more prepared to accept that confining the Ordinance’s scope to entertainments on private property logically followed from his criterion of “controlled admission”, but he too sought to argue that the presenter of an entertainment in a public street or place might become subject to the PPEO if he obtained authority from the government to control admission. He also submitted that the Ordinance might apply where someone voluntarily subjected himself to it by applying for a licence with a view to avoiding possible prosecution for obstruction of a public place.

  83. With respect, I do not think there is any shrinking from the conclusion that a construction adopting a criterion of controlling admission to the place of the entertainment[56] (which I have called “the controlled admission criterion”) excludes the Ordinance from applying to public spaces or to private spaces to which the public is given unrestricted access. In my opinion, the instances put forward for suggesting that the PPEO might still have a role to play regarding entertainments in public places serve merely to highlight the unsatisfactory nature of that criterion.

  84. It is hard to see any logic or realism behind the suggestion that the criterion of controlled admission might be triggered by applying for government authority to control admission to the intended public place venue. Applications for road closures or for cordoning off portions of public places may of course be made under a variety of Ordinances authorising road works, digging MTR tunnels, repairing or laying public utilities, and so forth. But what is being suggested is that an application might be made to authorize control of admission to a public place for the sole purpose of presenting a public entertainment at that site. No one has been able to point to any statutory or other legal basis for granting such authority (except perhaps the PPEO itself). 

  85. I would be prepared to accept that a notice of no objection under the POO or a PPEO licence issued pursuant to an application which specifies the setting up of a stage in a public place may provide lawful authority sufficient to resist prosecution for obstruction by setting up the stage. But authorization to close off a portion of a public street or place and for the organizers to admit or exclude members of the public is an entirely different matter. 

  86. The logic is in any event hard to follow. The suggestion seems to be that there might first be an application to give the applicant control over admission into some portion of a public place and, if successful, that the applicant would thereupon become subject to a duty under the PPEO (since the criterion of controlled admission would be applicable by virtue of the prior permission granted) to make an application all over again to present the proposed public entertainment. It is hard to see how the hypothetical initial application could have proceeded unless the purpose of segregating part of the public place had been explained and accepted, which makes that application hard to distinguish from an application made under the PPEO.

  87. If what is being suggested is that the application for authority to segregate a portion of the public place does indeed proceed on the basis of a licence granted under the PPEO itself, then the authority to control admission is the outcome of a successful application and not the criterion for deciding whether the application has to be made in the first place.

  88. Similar difficulties exist in relation to the Court of Appeal’s “de facto” instance,[57] involving someone who, without any authority from the government to do so, encloses or cordons off an area in a public street, and presents the entertainment within the enclosure, controlling admission to the scene. Since this would satisfy the criterion of controlled admission, it is apparently suggested that the emergence of this situation could trigger a duty to obtain a licence. 

  89. With respect, it is a revealingly unrealistic argument. Since it is postulated that the organizer is already presenting the entertainment in the controlled enclosure without having made any licensing scheme application, why should anyone think that he would consider himself bound at that stage to make a PPEO application? What would he be applying to be licenced to do? The scheme aims to vet and then license entertainments proposed for the future. The de facto instance turns the statutory scheme on its head. It proposes a licence application to be made after the organizer has already gone ahead without being licensed. 

  90. In reality, if the organizer took it upon himself to close off a part of a public street or square and then to regulate entry by members of the public, he would rapidly find himself arrested for obstruction of a public place and find his enclosure dismantled.

  91. Another point which emerges from this discussion is that the licensing requirement benefits the organizers of a public entertainment in a public street because a licence provides lawful authority for what might otherwise amount to an unlawful obstruction if a stage or other structures are to be set up. This has led to Mr Pun’s curious suggestion that while not bound to obtain a PPEO licence, organizers of an entertainment in a public place may voluntarily opt in to the licensing scheme in order to benefit from the authorizations the licence confers. He submits that the licence somehow “transforms the nature of the place” during its subsistence. It is hard to see how if, as a matter of construction, the licensing scheme is inapplicable to such entertainments, the licensing authority has power to issue licences to those who volunteer to apply.

  92. G.3  An unnatural construction?

  93. The argument against the construction which I have put forward reflects the Court of Appeal’s approach, namely, that “Admission to an entertainment connotes the idea of admission to the locality where the entertainment takes place”. On that basis, it was suggested at the hearing that confining the use of “admitted” to the definition of “public entertainment” is somewhat unnatural, “admission” being more appropriately used in connection with admission to a locality, with the concomitant of a power of exclusion. It was argued that this was supported by the Chinese text,[58] especially the words “入場”.

  94. Leaving aside the Chinese text for the moment, the argument raised against the construction I have proposed involves two principal propositions with which I take issue. 

  95. First, it involves the proposition that in defining “public entertainment” as “.... any entertainment .... to which the general public is admitted with or without payment”, the definition necessarily imports as a concomitant, the power to regulate and refuse admission. 

  96. I am unable to agree. I do not accept that where one refers to a place to which persons are admitted, one thereby necessarily implies the existence of a means of regulatingadmission and granting entry to some, while turning others away. Thus, to state: “This is a park to which the general public is admitted,” does not imply that those who wish to enjoy a walk or a picnic in the park have to go through any process of admission involving possible refusal of entry. The statement merely indicates that the park is accessible to or open to the general public. There may be many points from which they may gain access without anyone regulating admission. Of course, having entered the park there may be rules of conduct to be observed, whether municipal by-laws, or if the property is private, rules stipulated by the owner. But that is not inconsistent with unrestricted admission. 

  97. Secondly, the argument involves the proposition that the phrase “to which the general public is admitted” is naturally to be understood as referring to a place – that “admission” is naturally tied to a locality – so that one should transpose the concept of “admission” found in the definition of “public entertainment” to the definition of “place of public entertainment”.

  98. I cannot accept that suggestion. As a matter of language, to say that “X is something or some place to which the general public is admitted” means that it is something or some place open to or accessible to the general public. While that expression might most commonly be used in relation to a locality, it is by no means confined to such usage. 

  99. Thus, one may say of a club that it has “membership to which women are admitted”. That obviously means that membership of the club is open to women. Of course, if a woman is admitted to membership, she would naturally be entitled to use the club’s premises, but it is important not to elide admission to membership with admission to such premises. They are quite distinct matters. Thus, if one says of a club that it has “membership to which women are not admitted”, it by no means follows that women are not admitted to the club’s premises (as guests or otherwise). 

  100. Again, one might say: “The Hong Kong Bar is a bar to which foreign lawyers with suitable professional qualifications are admitted”. Again, it has the meaning of the local bar being accessible to or open to qualified foreign lawyers. It does not connote admission to any locality.

  101. To take another example, one might say: “The status of Hong Kong permanent resident is a status to which persons satisfying the requirements of Article 24 of the Basic Law are admitted”. That is a statement about eligibility for a status, not admission to any locality.

  102. There is accordingly, in my view, no justification for regarding the concept “admitted” in the definition of “public entertainment” as having to be read as tied to the place where the entertainment is staged rather than simply as identifying the types of entertainment (those to which the general public is admitted) brought within the PPEO.

  103. I accept, as did Mr Johnny Mok SC,[59] that the Chinese text of the definition of “public entertainment”, especially use of the expression “入場”, carries a connotation of “locality” which, for the reasons I have given, does not exist in the English text. It follows that, on my construction, a difference exists between the two authentic texts which requires resolution in accordance with section 10B of the Interpretation and General Clauses Ordinance[60] which provides:

  104. (1)

    The English language text and the Chinese language text of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly.

    (2)

    The provisions of an Ordinance are presumed to have the same meaning in each authentic text.

    (3)

    Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.

  105. With this in mind, I turn now to consider the object and purposes of the PPEO.

  106. G.4  The purpose of the PPEO and PPER

  107. It is undoubtedly true, as Cheung CJHC pointed out, that the purpose of the Ordinance and Regulations “is to provide a means of effectively ensuring public safety and order, and to protect the participants to entertainment from the hazard and dangers associated with the gathering of crowds at places of public entertainment”.[61]

  108. Thus, the PPEO empowers the Secretary for Home Affairs to make regulations to provide for measures against overcrowding, for the control and prevention of fires, the maintenance of sanitary conditions and the maintenance of peace and good order in a place of public entertainment.[62] It also authorizes regulations to be made regarding[63]:

  109. .... the location of a place of public entertainment generally or on or in any place, building, erection or structure and the circumstances, conditions and restrictions in or subject to which such location may be permitted.

    Moreover, regulations may provide for the construction materials used, the venue’s layout and matters such as the electrical wiring and lighting arrangements for any stage erected.[64] Detailed regulations have correspondingly been made in the PPER.

  110. To be more precise, the purpose of the legislation is to promote public safety by means of a detailed precautionary licensing scheme aimed at anticipating potential dangers and putting preventative measures in place before the event occurs. 

  111. Thus, the statutory scheme requires an application for any proposed use of a place of public entertainment to be made not less than 42 days[65] before the start of the entertainment.[66] This is to allow potentially interested government departments to be consulted. Unless the application is refused outright, the PPER require the licensing authority to forward a copy to the Commissioner of Police, the Director of Fire Services, the Director of Housing or the Building Authority, the Director Marine and the Director of Electrical and Mechanical Services as appropriate.[67] There is also power given to officers of appropriate departments to enter and inspect the proposed venue.[68] 

  112. If there is no objection from the departments circulated, the applicant is required, not less than 28 days before commencement of the entertainment,[69] to supply a detailed plan of the place to which the application relates,[70] showing:

  113. (i)

    each part of the place intended to be used for holding entertainment;

    (ii)

    each part of the place intended to be used for seating or otherwise accommodating an audience (if any);

    (iii)

    each existing and any proposed exit route from the place;

    (iv)

    the position or location in the place of any existing or proposed permanent structure;

    (v)

    each part of the place in which it is intended that temporary barriers may be erected or otherwise provided;

    (vi)

    the proposed or actual location in the place of all sanitary fitments;

    (vii)

    the proposed or actual location in the place of fire service installations and equipment;

    (viii)

    all or, as may be appropriate, any 1 or 2 of the following means by which ventilation of the place, or any part thereof, is provided, namely, windows, ducts or any mechanical means;

    (ix)

    the proposed or actual location in the place of all laser equipment (if any); and

    ....

    (c)

    in the case of a temporary structure, diagrams sufficient to illustrate the proposed method of construction and the spacing and scantling of structural members.

  114. Having obtained the details, the licensing authority has a general power to issue a licence in suitable terms, specifying conditions designed for the location and for the type of entertainment in question.[71] Non-compliance with any such conditions is made an offence.[72]

  115. A purposive construction of the PPEO definitions to decide whether a duty to obtain a licence arises must have regard to the licensing scheme as a whole. It must recognize that the licensing requirement is imposed to enable a risk assessment to be made in advance of the proposed event by government departments possessed of expertise and experience relevant to the venue and type of entertainment proposed. It is designed to ensure that there is enough time for site inspections by relevant departments if necessary, for proper consideration of detailed layout and structural plans, as well as the proposed programme of entertainment. It is a scheme designed to enable the licensing authority to lay down conditions concerning matters including crowd control, fire safety and sanitary facilities to suit the particular place and type of entertainment in question. It also allows for adequate manpower arrangements to be made for there to be a suitable Police, Fire Services and first aid personnel[73] presence. If the entertainment is likely to attract a large audience, the scheme also allows precautionary traffic and other arrangements to be made, facilitating the orderly arrival and dispersal of the crowds in the vicinity of the place of public entertainment.

  116. The construction urged by the respondent and adopted by the Court of Appeal has, in my view, too narrow a focus. It concentrates on the point of access to the site – on whether members of the public need to gain admission to the place where the entertainment is to take place. In doing so, it gives no weight to what is central to the legislative scheme, namely, the enabling of proper safety assessments to be made and precautionary measures to be put in place in advance. Those are matters which must be addressed well before one gets to the point of considering how access is gained to the entertainment venue. The narrow focus does not in truth take the legislation’s purpose into account.

  117. Secondly, it appears, with respect, that the Court of Appeal has misapprehended the way the legislative scheme is designed to function. Cheung CJHC sought to support the “controlled enclosure” criterion for excluding the licensing scheme in the following terms[74]:

  118. This interpretation makes good sense in the light of the context and purpose of the legislation. As mentioned, the undisputed purpose of the legislation and the licensing regime that it sets up is to deal with crowd control and general safety. It therefore makes sense to require an organiser or performer, who has sufficient control over the place of entertainment as to enable him or her to control admission, to satisfy various licensing requirements designed to ensure adequate crowd control and general safety. Contrast that with an organiser or performer who does not have that degree of control over the place of entertainment, so much so that he or she is not even in a position to control admission. In that sort of situation, it would serve little purpose to require such a person to obtain a licence and fulfil licensing requirements which are geared towards crowd control and general safety when, by definition, that person simply does not have control over the place of entertainment, or put another way, the power to control the place of entertainment lies with someone else – in the case of a public street, the Government.

    His Lordship added[75]:

    One must also consider matters from the point of view of a licensee. After all, the Ordinance and regulations impose licensing requirements. Granted that these requirements are designed for crowd control and general safety, they are only as good as the licensee’s ability to comply with them. They are premised on the licensee’s ability to control the place of entertainment and access to it. These requirements lose their meaning if the organiser or performer does not even have the ability to control admission.

  119. In my view, there are three flaws in this reasoning. The first is to adopt “the point of view of a licensee”. To argue from that perspective is to pre-suppose that a licence has been already been granted. But the purpose of the scheme is to require the would-be presenter of a public entertainment to apply for a licence, setting in train the assessment process described above. If the location is unsuitable or if, upon his application being circulated, a responsible department objects for a legitimate reason, the purpose of the Ordinance is served by refusal of a licence. Even if a licence is not refused, the legislative purpose is served by enabling a proper risk assessment to be conducted and permitting suitable conditions to be imposed in advance of the performance. 

  120. The second flaw involves the unwarranted assumption that a licensee who has power to control admission will have the ability to comply with any licensing conditions imposed and that the converse is true of a licensee who does not have such power. The fact that an organizer is able to man the entrance to the venue, charging admission or collecting tickets tells one nothing about that person’s ability or resources to ensure compliance with safety requirements within. Conversely, the organizer of a free event to which members of the general public are given unrestricted access may be perfectly well-equipped and well-prepared to comply with whatever licensing conditions might have been imposed, such as conditions regarding the number of marshals to provide, the availability of fire safety equipment, the layout and structural soundness of a stage, and so forth, matters which do not depend on whether admission to the site is regulated.

  121. The third flaw is to assume that the efficacy of the PPEO depends entirely on the ability of the licensee personally to comply with conditions imposed. But the legislative scheme also enables precautionary safety measures to be put in place by the Police, Fire Services, first aid personnel and other agencies concerned with public safety when they receive prior warning and are able to plan for the event. 

  122. Mr Pun sought to argue that confining the PPEO’s operation to public entertainments on private property was justifiable because the Police need powers to enter such premises whereas there is no such need in relation to public entertainments in public places where sufficient powers can be exercised under other applicable Ordinances such as the POO. I do not accept that argument. For the reasons set out in Section H of this judgment, the POO and the other Ordinances there considered provide no substitute for the PPEO’s precautionary safety regime. I do not accept that there is no need for such safety precautions in public places.

  123. Since the unambiguous object and purpose of the PPEO is to promote public safety by means of a detailed precautionary licensing scheme, in so far as a difference has emerged between the English and Chinese texts in the definitions of “public entertainment” and “place of public entertainment” which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which in my opinion best reconciles the texts, having regard to the aforesaid object and purpose is the construction based on the English text. It is the construction demanded by section 10B of the Interpretation and General Clauses Ordinance since it avoids placing restrictions (based on unjustifiable criteria of controlled admission, physical enclosure and private property) on the scope of the duty to obtain a licence and so avoids disabling government authorities from effectively carrying out their duty of anticipating and preventing potential danger to the public in connection with the staging of public entertainments.

  124. G.5  The history of the legislation

  125. There is, in my view, little need to go into the history of the legislation, but as it has been referred to in both Courts below and in the parties’ submissions, I should touch on it briefly.

    1. The PPEO has its origins in the Places of Public Entertainment Regulations Ordinance 1919, in which, as with the current Ordinance, “Entertainment” was defined by reference to a list of activities while “Public entertainment” was given the definition which has remained unchanged to this day.[76] There was no definition of “place of public entertainment”.

    2. In 1951, the Ordinance was amended and a definition of “place of public entertainment” was introduced which included any place on which a structure or building stood “or other place” as falling within that concept.[77] It therefore operated on the basis that any place might serve as a place of public entertainment. According to the objects and reasons published in the Gazette, this had “the effect of widening considerably the places and forms of entertainment subject to the control imposed by the Ordinance”.[78]

    3. In 1970, the definition was narrowed, the Attorney General indicating in Legislative Council that it was considered unnecessary that the definition of “place of public entertainment” should “include a place on which there is no structure capable of accommodating the public, for example, a field which is set aside for a gymkhana”.[79] This resulted in a “place of public entertainment” being defined as:

      (a)

      any place on which there is any building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

      (b)

      any vessel,

      in or on which a public entertainment is presented or carried on whether on one occasion or more.

    4. There was then a reversion to the previous policy when the definition was further amended in 1980. No longer did a “place of public entertainment” have to involve a building, erection or structure in which the public were accommodated. The definition which continues to apply today relevantly reads[80]:

      ‘place of public entertainment’ means –

      (a)

      so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public ....

  126. Cheung CJHC correctly records that the speeches in Legislative Council debating the 1980 amendment show that it was desired to cater for the emergence of small cinemas occupying part of larger premises such as a shopping mall.[81] His Lordship did not, however, address the fact that the definition had reverted to the wider definition applying to “any place” previously applicable.

  127. It suffices to say that there is nothing in the legislative history to support the argument that a place of public entertainment has to meet the criterion of controlled admission, much less to consist of a controlled enclosure. Even the narrowing of the definition in 1970 (reversed in 1980) does not help the respondent’s case. It has never been his argument that a place of public entertainment must be a “place on which there is any building, erection or structure, whether temporary or permanent, capable of accommodating the public”. The respondent accepts (the Court of Appeal held correctly[82]) that a place of public entertainment can consist of an “open space area”, subject to his proviso that it meets the criterion of controlled admission.

  128. G.6  Certain particular arguments

  129. I turn next to some particular arguments advanced in favour of the “controlled enclosure” or “controlled admission” construction. Such arguments, must be viewed recognizing that the PPEO and PPER cater for many different types of entertainment, including those which are free and those where admission is charged, taking place in all sorts of venues. 

  130. Included amongst the situations covered by the PPEO are (as I have accepted) entertainments to which the general public is admitted held in private buildings or enclosed spaces where the organizer controls entry, both to the entertainment and to the venue. But, as I have been at pains to emphasise, the PPEO does not confine itself to such situations. It follows that where arguments are advanced relying on judicial decisions or statutory provisions which are only concerned with controlled admission to venues, it should be recognized that such arguments do not address or invalidate the construction regarding areas of unrestricted access. 

  131. G.6a Scott v Cawsey

  132. This applies to the Court of Appeal’s reliance on the High Court of Australia’s decision in Scott v Cawsey.[83] The first thing to note about that case is that it was concerned with liability under section 1 of the Sunday Observance Act, 1780[84] which arose if “any house, room, or other place” was “opened or used for public entertainment or amusement, or for publicly debating on any subject whatsoever” on a Sunday, “and to which persons [were] admitted by the payment of money, or by tickets sold for money”, such a place being deemed “a disorderly house or place”.[85] As Griffith CJ explained: “.... what is made unlawful is opening or using for the specified purposes a house, room, or place to which persons are admitted on payment.”[86]

  133. It follows that Sunday Observance cases, involving persons who charge for admission to entertainments, generally involve controlled admission to places which are cordoned off or enclosed. They do not address or concern free public entertainments at sites with unrestricted access.

  134. Scott v Cawsey was such a case. The twist which gave rise to an appeal all the way to the High Court was that payment was required for admission to only part of the venue. The point in issue was whether the Sunday Observance Act applied where part of a large hall was cordoned off with admission being charged for entry into the cordoned off area (referred to as “the reserve”) where comfortable seating was provided, while entry to the hall itself was free. [87]

  135. The owner of the hall successfully argued that since admission to the hall was free, the Act had not been infringed. It was the hall which constituted the “house, room, or other place” to which persons were admitted gratis and not “for the payment of money or by tickets sold for money”. The cordoned off “reserve” was not regarded as the relevant “house, room or other place”. Griffith CJ regarded the fee charged as “a charge for special comfort afforded to persons present at an entertainment to which admission is free”.[88]

  136. It was in that context, referring to the large hall, that Griffith CJ said[89]:

  137. The term ‘admission,’ however, involves the idea of locality, and of the ability of the person who permits the admission to exclude others from the place of entertainment or amusement except with his consent.

  138. Since it was a case where the entertainment was presented in a building into which the owner admitted members of the public, it is not surprising that his power of admission was held to carry with it a power to exclude others. It provides no basis for the Court of Appeal’s gloss on the PPEO.

  139. The long title of the 1780 Act states that it is “An Act for preventing certain Abuses and Profanations on the Lord’s Day called Sunday”. Its aim was to encourage adherence to the Christian Sabbath as a day of rest and religious observance. As appears from reading section 1 as a whole,[90] its focus was not on any precautionary measures, but on the fact that the place was “opened or used” on a Sunday, penalising, after the event,[91] the deemed keeper of the disorderly house and persons who managed or conducted the entertainment or acted as master of ceremonies, or as moderator, etc, of any public debate. That its focus was on admission for payment is clear from the section’s penalising “every doorkeeper, servant or other person who shall collect or receive money or tickets from persons assembling at such house, room, or place on the Lord’s Day”. The purposes of the 1780 Act are self-evidently far removed from those of the PPEO.

  140. G.6b Provisions said to be consistent only with controlled enclosures

  141. It was argued that certain provisions in the PPEO and PPER make sense only in relation to controlled enclosures. Thus, having observed that licensing requirements designed for crowd control and general safety “are only as good as the licensee’s ability to comply with them”, Cheung CJHC continued[92]:

  142. They are premised on the licensee’s ability to control the place of entertainment and access to it. These requirements lose their meaning if the organiser or performer does not even have the ability to control admission. Thus, for instance, a licensing requirement stipulating the maximum number of the audience at an entertainment, which is no doubt an important requirement in terms of crowd control and general safety, simply cannot work if the organiser or performer has no ability to control admission.

  143. I am unable to accept that argument. In the first place, there is no universal “licensing requirement stipulating the maximum number of the audience”. The provision referred to is section 10(2)(f) which, with the other paragraphs of section 10(2) lists the sorts of conditions which the licensing authority may specify.[93] If it serves no purpose in a given case to impose a condition setting a maximum number for those to be admitted, one would expect such a condition not to feature in the licence.

  144. However, it may, in given circumstances, be sensible for such a condition to be imposed in relation to a venue with unrestricted access. Section 10(1) gives the licensing authority a discretion as to the precise terms and conditions imposed. It may make sense, for instance, to grant the licence on condition that the performance cannot begin or must cease if the attendance by those admitted to the entertainment exceeds the stated maximum save with the consent of the responsible police officer present. Such a condition does not depend on controlled admission.

  145. Another example mentioned by the Court of Appeal is regulation 170B which states:

  146. Where a licence is granted or renewed under these regulations, then for so long as the licence remains in force, the licensee shall exhibit and keep exhibited at all times the licence in a conspicuous position at the entrance or, if there is more than one entrance, the main entrance of the premises to which the licence relates.

  147. I quite agree with Cheung CJHC’s comment that[94]:

  148. This regulation is simply not capable of compliance where the place of entertainment in a public street is not, in one way or another, enclosed or cordoned off, and there is therefore no ‘entrance’ to talk of.

  149. What follows from this? The regulations are enforced by making non-compliance an offence by the licensee.[95] But where the regulation is obviously inapplicable on the facts, no one could sensibly suggest that the licensee has failed to comply and has thereby committed an offence. It does not justify the criterion of controlled admission.

  150. G.6c  Buskers

  151. A variant of the foregoing arguments involves the proposition that the licensing regime cannot have been intended to operate in relation to entertainments on public streets with unrestricted access since it would otherwise catch people like buskers, who (it is argued) are obviously not intended to be targeted by the licensing scheme.

  152. R v Bow Street Magistrates’ Court ex p McDonald,[96] was cited by the Court of Appeal[97] in support. That was a case involving a busker who was accustomed to play his guitar using amplifying equipment on roughly the same spot in Leicester Square, without any licence. Purporting to act under a warrant issued by a magistrate pursuant to the London Government Act 1963 (“the 1963 Act”), the police seized his equipment. Mr McDonald brought judicial review proceedings, challenging the magistrate’s decision to issue the warrant, contending that he did not need a licence to busk. The Court of Appeal reversed Dyson J[98] and agreed that no licence was needed. To understand the basis of the Court of Appeal’s decision, it is necessary to examine the relevant provisions of the 1963 Act.

  153. Schedule 12 paragraph 1 of the 1963 Act laid down the licensing requirement, stating:

  154. .... no premises in a London Borough .... shall be used for any of the following purposes, that is to say, public dancing or music and any other public entertainment of the like kind, except under and in accordance with the terms of a licence granted under this paragraph by [the council of the borough ....].

    Under paragraph 1(7), “premises” was defined to include “any place”.

  155. Where premises were caught by Schedule 12 paragraph 1, it was an offence under paragraph 10(1) if:

  156. (a)

    any person concerned in the organisation or management of that entertainment; and

    (b)

    any other person who, knowing or having reasonable cause to suspect that such an entertainment would be so provided at those premises

    (i)

    allowed the premises to be used for the provision of that entertainment; or

    (ii)

    let the premises, or otherwise made the premises available, to any person by whom an offence in connection with the entertainment has been committed ....

    It may be noted that such “premises” are envisaged to be under the control of a person in a position to allow them, or to let them, for use in breach of the licensing requirement.

  157. The power to forfeit Mr McDonald’s musical equipment was conferred by paragraph 12B(1) and conditioned on a person being convicted of an offence under paragraph 10(1) or (2), the forfeiture power also being linked to the powers of search and seizure which were subject to challenge by judicial review. The paragraphs conferring those search and seizure powers are important. Paragraph 12(2) provided:

  158. A police constable .... may, if authorised in that behalf by a warrant granted by a justice of the peace, enter any premises in respect of which he has reason to suspect that an offence under this Schedule is being committed.

    And paragraph 12C stated:

    A constable .... who enters any premises under the authority of a warrant granted under sub-paragraph (2) of paragraph 12 of this Schedule may seize and remove any apparatus or equipment .... found on the premises which he has reasonable cause to believe may be liable to be forfeited under paragraph 12B of this Schedule.

  159. I have emphasised the contents of paragraph 10(1) and italicised the words involving “entry into premises” in paragraphs 12(2) and 12C because they show that the premises intended to be regulated under the 1963 Act were premises controlled by others which could only be entered by a constable pursuant to a statutory power authorising the issue of a warrant. It is not surprising that Leicester Square was held not to constitute such “premises” even though “premises” was defined to include “any place”. Schiemann LJ[99] explained this as follows[100]:

  160. Schedule 12 is concerned with the control of premises to which the public is invited for the purposes of public dancing or music and any other public entertainment of the like kind. It does not forbid all music-making in public places .... They envisage a situation in which someone other than the council has the power to regulate the activities of the public in that place and where it is in the public interest that the council assume some power of entry and supervision which otherwise it would not have. The Schedule is not designed to deal with situations where what is going on is going on in a street to which every music-maker or other member of the public has access .... The wholly artificial way in which the council tried to use the powers in paragraph 12(2) to secure a warrant to obtain a right of entry to Leicester Square (a place in their ownership, and to enter which they had no need of any warrant) makes the point.

  161. As I have endeavoured to show, there is no similar wording in the PPEO or the PPER capable of supporting the view that the licensing requirements with which we are concerned are intended only apply to premises under private control and not to public squares or streets. The position of buskers in Hong Kong therefore cannot be approached along the lines of ex p McDonald. What then of the criticism that it would be absurd to apply the PPEO and PPER to buskers in Hong Kong?

  162. This case is not about buskers and it is not necessary to decide whether the PPEO applies to them. However, I will say that I am inclined to accept that it would be unnecessary and incongruous to apply the full panoply of powers and duties that apply to entertainments calling for crowd control, and so forth, to buskers playing on a pedestrian flyover or under-pass. Typically, a busker does not gather a stationary audience of any size but merely hopes that well-wishing passers-by will pause long enough to drop some money into his or her hat or instrument case before going on their way. This is not the kind of entertainment that calls for a multi-departmental pre-event risk assessment, the submission of venue plans or the tailoring of licence conditions such as those envisaged by PPEO section 10 to the busker’s activity. Given this view, is there any scope for a purposive construction of the PPEO definitions which would exclude buskers from the ambit of the Ordinance? 

  163. There is a reasonable argument that this cannot be done because of the clear language of the definitions. A busker is clearly engaged in providing “entertainment” consisting of “musical entertainment”.[101] It may be said to be “public entertainment” on the basis that it is entertainment “to which the general public is admitted with or without payment”, being accessible to all passers-by. He may furthermore be said to be playing in a “place of public entertainment” consisting of the pavement or passage way which is “capable of accommodating the public” who hear the music while walking by.

  164. But an important additional factor has to be taken into account in this analysis. Buskers and other street musicians are already subject to a much simpler licensing requirement under the Summary Offences Ordinance (“SOO”).[102] Section 4(15) provides:

  165. Any person who without lawful authority or excuse .... plays any musical instrument in any public street or road save under and in accordance with the conditions of any such general or special permit as the Commissioner of Police in his absolute discretion may issue .... shall be liable to a fine of $500 or to imprisonment for 3 months.

  166. I would accept that some regulation of buskers and street musicians is necessary to prevent public nuisance or undue obstruction in the frequently over-crowded streets of Hong Kong. However, the permit envisaged by the SOO seems far more appropriate than a fully-fledged PPEO licence. The permit issued by the Commissioner does not involve multi-departmental precautionary assessments but can still be tailored to the place and circumstances in which the busker is to perform. Given the existence of a duty far more suited for dealing with buskers, if the position of buskers had to be definitively decided, the question would arise as to whether, having subjected buskers to that duty, the legislature ought properly be taken to have intended that buskers should additionally be subject to a licensing requirement under the PPEO. A strong argument plainly exists to support a negative answer. It may very well be appropriate in such a case to imply words into the PPEO provisions to exempt from their operation, persons who already hold a permit issued under section 4(15) of the SOO.

  167. As Sir Anthony Mason NPJ pointed out in HKSAR v Lam Kwong Wai,[103] the modern approach is to adopt a purposive construction of statutes while accepting :

  168. .... that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing (R v A (No 2) [2002] 1 AC 45 at pp 67G-68H, per Lord Steyn).

    However, as his Lordship went on to state:

    A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.

  169. I think it compellingly arguable that the legislative intention properly ascertained unambiguously favours a construction whereby the licensing obligations of buskers are confined to their obtaining a permit under the SOO. Accordingly, it may well be proper to imply words to that effect into the PPEO so that section 4 should be read with the italicised words implied:

  170. No person shall keep or use any place of public entertainment without a licence granted under this Ordinance or under section 4(15) of the Summary Offences Ordinance.

  171. The same question of principle can arise whenever there is an overlap between the licensing requirements of the PPEO and some other Ordinance in relation to activity which constitutes “public entertainment”: Is it the legislative intent that both licences have to be obtained and if not, which is intended to be the appropriate licence? Without in any way indicating a view as to a possible outcome, it may be noted that section 4C of the SOO imposes an obligation to obtain a permit from the Commissioner of Police on persons who organize or participate in “a lion dance, dragon dance or unicorn dance, or any attendant martial arts display, in a public place” unless exempted.

  172. G.6d Small scale public entertainments

  173. There may of course be instances of small-scale entertainments staged in public places with unrestricted access which do not involve pre-existing duties such as those mentioned above and which may attract the licensing requirements of the PPEO. One can have some sympathy for those who complain about “kill-joy” red tape interfering with enjoyable public entertainments, but complaints of that nature cannot nullify the essential statutory purpose of safeguarding public safety and good order in connection with public entertainments.

  174. In any event, the PPEO is not bereft of means to exclude or minimise the burdens of the licensing regime in appropriate cases. Thus, section 3A confers on the Secretary for Home Affairs power by Order published in the Gazette to exempt from the operation of PPEO section 4, places of public entertainment which are of a specified class or description from all or some of the provisions of the Ordinance or PPER. The Secretary has gazetted an Order exempting a number of places, including places “under the management of the Leisure and Cultural Services Department or the Home Affairs Department” from the licensing requirement.[104] Such an exemption might be applied, for instance, to places regularly resorted to by the public where informal, small scale entertainments may be carried on, since such places are managed, one assumes, with proper safety measures put in place by the said Departments. 

  175. The PPEO also provides the licensing authority with discretions to adjust the level of regulation properly called for. For instance, it may in suitable cases, accept much shorter periods of notice than the 42 days and 28 days normally called for under regulations 162(1) and 162(3) respectively. A simple entertainment posing little risk to public safety can be rapidly approved with the licensing authority declaring itself satisfied by the materials submitted. The licence can cover regular events to be held over a stated period. The licensing authority has power to waive or reduce fees[105] and, where conditions imposed are found to be inappropriate, power to vary or cancel them.[106] 

  176. But at the end of the day, a degree of inconvenience may have to be accepted to further the public safety purposes of the PPEO. As Lord Bingham of Cornhill pointed out:

  177. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.[107]

  178. Given the almost infinite forms and venues for public entertainments imaginable, it is not surprising that the PPEO’s drafting might in some circumstances be thought wanting. Adopting one construction, it may appear to have an over-broad application, imposing the inconvenience of having to apply for a licence where many might agree that it is unnecessary to operate the precautionary scheme. But adopting another construction, the PPEO may be given too narrow a scope, leaving public safety at risk in situations which clearly call for precautionary planning. The burdens of a licensing scheme are felt more in the nature of bureaucratic inconvenience than in the imposition of criminal liability. For my part, I consider it better to adopt a construction which errs on the side of ensuring public safety. 

  179. For the foregoing reasons, I respectfully disagree with the Court of Appeal’s construction. In my view, places to which the general public have unrestricted access, including public streets and spaces, are capable of qualifying as places of public entertainment within the meaning of the PPEO and PPER. There is, in my judgment, no basis for construing the relevant definitions in section 2 as confining such places to those which are subject to control over admission.

  180. H. The constitutional issue 

  181. On the basis that the PPEO applies to the IDAHO event, the respondent argues that sections 2 and 4 are unconstitutional because they are inconsistent with Articles 27[108] and 39[109] of the Basic Law and/or Articles 16(2)[110] and 17[111] of the Hong Kong Bill of Rights. The contention is that the licensing regime of the PPEO infringes the constitutionally guaranteed freedoms of expression and assembly, as demonstrated by the interference with the IDAHO dance performance.

  182. Those freedoms are of course of great importance, but they are not absolute and laws which impinge on them are valid if they pass the proportionality test which has often been applied in this jurisdiction.[112] In the present case, the licensing requirement clearly has a legitimate aim being a precautionary scheme for the effective protection of public safety and good order in places of public entertainment.[113] Plainly, the licensing regime which has been described is rationally connected with achieving that end. Neither of these points is in dispute.

  183. The constitutional objection advanced on the respondent’s behalf is that the safety of the public attending entertainment events in a public street is sufficiently catered for by powers conferred on the Police by such Ordinances as the POO, the Police Force Ordinance[114] (“PFO”) and the SOO so that it is disproportionate to impose additional fetters on the relevant freedoms in the form of the PPEO’s licensing requirements.

  184. I have accepted the argument as a matter of construction that buskers may well be sufficiently regulated by being placed under a SOO duty to obtain a permit, but cannot accept the respondent’s argument in reliance on the POO or PFO. While the regulatory schemes of the POO and PPEO overlap to a limited degree, the POO has a different purpose, deals with different subject-matter and operates in a different fashion. It provides no substitute for the well-developed precautionary licensing regime established by the PPEO.

  185. The POO is, as its title suggests, concerned with public order. It only involves the Commissioner of Police and does not cater for any multi-departmental pre-event risk assessment in relation to public entertainments. Its main purpose is to regulate public meetings and public processions and not public entertainments. Such “meetings” are defined to exclude gatherings organized exclusively for recreational or cultural purposes[115] so that many entertainments are likely to fall outside the ambit of public meetings and so will not be regulated by the POO. Similarly, since most public entertainments will not involve a “public procession”[116] the POO provisions on processions will rarely be applicable. While organizers have to notify the Commissioner of Police of intended public meetings[117] and public processions,[118] they have to give no more than a week’s prior notice. The information which must be provided is limited to the organizer’s personal details, the purpose and subject-matter of the meeting, its date, location, time of commencement, duration and an estimate of the number of people expected to attend.[119] Similar information, plus the intended route, must be given in relation to an intended public procession.[120] Such requirements do not compare with the detailed information as to the entertainment and venue that must be provided by the applicant for a licence under regulations 162-164 of the PPER.[121]

  186. Mr Pun was keen to point to the POO’s regulation of “public gatherings” which are not confined to public meetings and public processions, but include other meetings, gatherings or assemblies of 10 or more persons in any public place.[122] However, the treatment that such public gatherings receive under the POO is very limited. Under section 17, police officers are given powers to prevent, stop, disperse, etc, such public gatherings but only if they reasonably believe that they are likely to lead to a breach of the peace. Section 6 gives the Commissioner power to control and direct the conduct of public gatherings if he reasonably considers it to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others, but this is a reactive power, there being no obligation on the organizers or participants in public gatherings to give prior notice of their occurrence.

  187. Mr Pun also relied on section 10 of the PFO, but that section merely lays down a long list of the general duties of the police force. Such duties include taking lawful measures with a view to preserving the public peace, preventing and detecting crimes and offences; preventing injury to life and property, and so on. They are certainly no substitute for the PPEO’s precautionary scheme.

  188. Such constraints on the freedoms of expression and assembly as flow from operation of the PPEO generally do not involve prohibiting the event. The Ordinance therefore usually involves minimal interference with the freedoms in question. In the rare case where the location is so unsuitable or the entertainment so dangerous that the risk cannot be acceptably mitigated by imposing suitable conditions, refusal of a licence is a proportionate constraint. It is unthinkable that we should fail to learn the tragic lessons of the Lan Kwai Fong disaster of 1 January 1993.[123] But even in cases involving such dangers, the organizers may be able to find a safe alternative venue or suitably to modify the entertainment so as to obtain a licence subject to tailor-made conditions. In my view, the requirements imposed by the PPEO are no more than necessary to secure public safety and good order in places of public entertainment. It is a legitimate, rational and proportionate measure which is compatible with the constitutional guarantees.

  189. In the present case, the organizers of the IDAHO event were advised by the Police to apply for a PPEO licence. The Police were right to do so. The proposal involved putting up a stage and various smaller structures publicising the IDAHO event and a dance performance on a Sunday afternoon in a crowded pedestrian precinct. The organizers initially did submit a PPEO application but then chose to withdraw it while it was being considered by the licensing authority and interested departments. It may be that the organizers were wrongly advised since they did so on the footing that there would be no “entertainment” involved, a position which is now no longer maintained. The Police had already served a Notice of No Objection under the POO and had indicated, in response to the PPEO application that they had no objection provided specified conditions were met. There is every reason to think that if the organizers had persisted in their application, a licence would have been granted in good time before the IDAHO event and there would have been no interference with the dance performance. Only the organizers knew what they had planned by way of public entertainment and it was not too burdensome to require them to provide relevant advance information to the licensing authority in furtherance of public safety. 

  190. For the foregoing reasons, I would allow the appeal, set aside the Court of Appeal’s orders and restore the order of Lam J dismissing the application for judicial review.

    Justice Tang PJ

  191. I have had the advantage of reading the judgments of Fok PJ and Lord Neuberger of Abbotsbury in draft, I respectfully agree, for the reasons given by them, that the appeal should be dismissed. Since, I disagree with the Chief Justice and Ribeiro PJ, I will add a few words of my own.

  192. These proceedings concern the construction of s 4 of the Places of Public Entertainment Ordinance (“PPEO”), under which no person shall keep or use any place of public entertainment without a licence under PPEO.

  193. The Court is divided over the true construction of the definitions of “public entertainment” and “place of public entertainment” in PPEO.

  194. The definition of entertainment is wide and includes “any event, activity or other thing specified in Schedule 1”. Dancing is specified in Schedule 1, and I shall proceed on the basis, but do not decide, that the dancing in this case, said to be an Artistic and Dancing Expression to promote a message against discrimination, was entertainment within the meaning of PPEO.

  195. Public entertainment as defined “means any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment”.

  196. Place of public entertainment means “so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and any vessel, in or on which a public entertainment is presented or carried on whether on one occasion or more.”

  197. What is “public entertainment” is important because it is the presenting or the carrying on of public entertainment in or at a place which makes it a place of public entertainment. A place in or at which non-public (private) entertainment is presented or carried on does not require a licence under PPEO.

  198. What distinguishes private entertainment from public entertainment is the admission of the general public. When entertainment to which the general public is admitted is presented or carried on in or at a place, a licence for the place (not for the entertainment), under PPEO is required, and it is an offence to keep or use that place without a licence. What, then, is the place, the keeping or using of which without a licence is an offence? The definition of “place of public entertainment” provides the answer, namely, a place which is “capable of accommodating the public”, and the public being those who have been admitted to the entertainment, being presented or carried on there.

  199. The essence of Mr Mok’s submission is that the general public is admitted to an entertainment if they are exposed to it, for example, they could hear or see the entertainment. He accepts that if he is right, a busker would require a PPEO licence. According to Mr Mok, a busker, an exhibitor of sculptures or pictures by performing or exhibiting in public, admits the general public to the entertainment.[124]

  200. With respect, I agree with Fok PJ , for the reason given by him, that:

  201. 262.

    .... the word ‘admitted’ is to be construed in an active sense and as requiring that, for a place to be a place of public entertainment, the person presenting or carrying on the (public) entertainment must be able to control admission to the place where the entertainment is being presented or carried on.

  202. In my opinion, in context, that is the ordinary and natural meaning of “admitted”.

  203. It follows that I also respectfully agree with the Chief Judge, who said, with the concurrence of Stock VP and Barma JA :

  204. 35.

    .... the very idea of the general public being admitted to an entertainment, or the place of entertainment, involves the ability on the part of the organiser or performer of the entertainment to control admission by admitting or excluding people, whether on terms (such as the sale of tickets) or unconditionally.

  205. If “admitted” is given its ordinary and natural meaning, the PPEO would cover all obvious places for control under the PPEO, for example, entertainment in private premises such as cinemas and dance halls, and other premises, such as football stadiums, where admission of the general public is controlled. Mr Mok’s complaint is that, giving “admitted” its ordinary and natural meaning would not cover the present case, or, for example, annual count-downs where large crowds may gather, although the same safety concerns are involved. That is why we should construe “admitted” purposively to cover these other situations. Mr Mok submits that the fact that buskers will also be covered should not concern us. Buskers are already covered by s 4(15) of the Summary Offences Ordinance (“SOO”). I suspect, s 4(15) is more honoured in the breach than in the observance and that, sensibly, the police does not prosecute every busker. More to the point, I seriously doubt whether the legislature would ever have knowingly brought buskers within the ambit of the PPEO. Ribeiro PJ regards the inclusion of buskers under the PPEO “incongruous”.[125] His lordship said it may be appropriate to imply words into the PPEO provisions to exempt buskers, who already hold a permit issued under s 4(15) from the SOO.[126] Like Lord Neuberger[127], I do not believe that is an acceptable solution. Buskers would be included if Mr Mok is right. I regard the inclusion of buskers under Mr Mok’s construction, another reason why it must be rejected.

  206. The PPEO does not apply to private entertainment, although the same safety concern may be present. The legislature have chosen to cover only public entertainment. They drew the line at the admission of the general public with or without payment and not at the possible safety concern of an entertainment. The definition uses simple words, and has been in place since 1919. I do not believe the word “admitted” has ever been understood otherwise than in its ordinary and natural sense. As Fok PJ’s historical survey of the PPEO shows, for many years, (1908 to 1951 and 1970 to 1980) places of public entertainment were confined to a structure of some sort[128] and the ordinary and natural meaning of “admitted” was entirely adequate for the purpose of the PPEO. The legislature had no reason to wish for any wider meaning. However, between 1951 and 1970, and since 1980, a place of public entertainment was not confined to a structure. But, the definition of public entertainment was not amended. I cannot accept that the legislature would have left the definition unamended if they had intended any change to the ordinary and natural meaning of “admitted”.

  207. Mr Mok also asks us to distinguish between admission to the entertainment and admission to the place of entertainment. If “admitted” has the meaning ascribed to it by Mr Mok, I doubt if the distinction adds anything. If “admitted” has the meaning I prefer, the distinction would not help him. 

  208. Does the distinction mean that if the general public is admitted to the entertainment it does not matter that it was not admitted to the place of public entertainment? Suppose, an operator of a commercial drive-in cinema (who has a PPEO licence for his cinema), shows a silent film, and the movie was watched by the general public from outside the drive-in cinema. On the appellant’s case, the general public had been admitted to the entertainment. Would the fact that the operator has a licence for the drive-in cinema suffice? If so, is that because, the place at which the non-paying public saw the movie was not a place of public entertainment and no licence was required for that area? If that is right, why should it matter the general public had watched the movie from outside? If not, is it because, the place where the public saw the movie was itself a place of public entertainment and a PPEO licence was required for that area. If that is right, since the access to the entertainment by the public rendered the place at which they accessed the entertainment, a place of public entertainment, what is the relevance of the distinction? 

  209. I also believe Mr Mok has exaggerated the public safety concern in this case. Here, although there was no PPEO licence, the requirements for a public meeting or procession under the Public Order Ordinance (“POO”) were met. The Commissioner of Police did not object to the meeting or procession on public safety grounds. The facts of the present case provide a useful illustration of the dangerous implication of Mr Mok’s submission.

  210. The evidence of Robit Bhagat, Assistant Divisional Commander (Administration) Wanchai Police Division, showed that, after WSIP Chan noticed a number of performers dancing on the stage and in the area before the stage, she warned the person in charge that since there was no PPEO licence they were liable to prosecution. As a result, the dancing stopped, and the event continued with speeches. There is no reason to think that the level of danger to public safety was greater because of the dancing. Moreover, WSIP Chan went on to say she did not realize that there were story-telling in the speeches. My impression is that, had she realized that, she would have given another warning because entertainment as defined includes story-telling, and a licence would be required. 

  211. I agree with Fok PJ that since constitutionally protected freedom of expression may be involved, clear words are required to effect any such restriction. I would not give the word “admitted” a “purposive” construction which may impact these important rights.

  212. Mr Mok provided other examples where public safety may be a serious concern. He mentioned the Lan Kwai Fong disaster. But, there was a PPEO licence on the occasion. Mr Mok also mentioned annual count-downs. Two well known places for such events are the Times Square and under the Clock Tower in Tsimshatsui. Count-downs per se do not come under the definition of entertainment. Nor are they likely to be organized. So who could be required to apply for a licence? Nor is it likely that the authorities would take no measure for public safety because no PPEO licence was or could be applied for. It is common sense that the police and other relevant government departments would do all they can to ensure public safety, on such and similar events.

  213. I turn to the Chinese version of PPEO. The English and Chinese texts are equally authentic, and presumed to have the same meaning.[129] Mr Pun for the respondent, relies on the words “讓公眾入場” in the Chinese definition of public entertainment, in particular, the word “”. Mr Mok, in his oral submission, accepted that “” meant “to permit”. I am of the opinion that in the Chinese text, public entertainment is defined as entertainment to which the general public is permitted to be admitted, with or without payment. Moreover use of the expression “入場”, especially the word “”, supports the view that it was concerned with the admission to the place of entertainment and not merely to the entertainment.  

  214. I see no difference in meaning between the Chinese and English texts.

  215. For the above reasons, which, I believe, are consistent with the judgments of Fok PJ and Lord Neuberger, I would dismiss the appeal. That being the case, it is unnecessary for me to express any view on the constitutional question.

    Justice Fok PJ

    A. Introduction

  216. Under the Places of Public Entertainment Ordinance (Cap.172) (the PPEO), a person who keeps or uses a place of public entertainment must obtain a licence to do so. The question of principle raised in this appeal is whether and in what circumstances, on the true construction of the PPEO, an entertainment which is presented or carried on in a public street or other publicly accessible open space is one for which the organiser is required to obtain a licence. The Court of Appeal, differing from the Judge at first instance, held that the licencing regime did not apply to the use of a pedestrian precinct in Lockhart Road for a dance performance. The Commissioner of Police (the Commissioner) appeals, contending that it did.

  217. If the Commissioner is correct, then a subsidiary question arises as to whether the provisions of the PPEO requiring the obtaining of a licence are inconsistent with the constitutionally protected freedom of public demonstration and assembly and freedom of expression.[130]

    B. The facts

  218. Save for one matter referred to below, there was no dispute as to the facts.

  219. Various lesbian, gay, bisexual, transgender and intersex (LGBTI) and human rights organisations (the Organisers) proposed to host a 7th annual International Day Against Homophobia (IDAHO). The purpose of the 7th IDAHO was to raise public awareness of anti-discrimination, equal opportunities and anti-homophobia issues and to provide a platform for the LGBTI community to express their views and to discuss and share their experience of these matters. The 7th IDAHO was scheduled to be held on Sunday, 15 May 2011, between 3pm and 5pm on Lockhart Road between East Point Road and Cannon Street in Causeway Bay. That part of Lockhart Road is designated as a pedestrian street from 4pm to midnight on Mondays to Fridays and from noon to midnight on Saturdays, Sundays and public holidays and so was therefore a pedestrian precinct at the relevant time.

  220. Prior to the scheduled day for the 7th IDAHO, on 15 March 2011 and again on 15 April 2011, the Organisers submitted a Notification of Intention to Hold a Public Meeting to the Commissioner of Police. The notification was given pursuant to section 8 of the Public Order Ordinance (Cap.245) (the POO) and the application identified the pedestrian precinct as the place of the meeting, estimated that about 250 persons were expected to attend and stated that there would be a stage performance. The Organisers also provided a map to the police on which the position of a “stage” and an “assembly space” were respectively marked at one end of and along the pedestrian precinct. In due course, on 11 May 2011, the Commissioner issued a Notice of No Objection pursuant to section 9(4) of the POO indicating he had no objection to the 7th IDAHO being held in the pedestrian precinct, subject to certain conditions.

  221. In parallel with this, the Organisers submitted, on 15 March 2011, an application to the Food and Environmental Hygiene Department for a Temporary Places of Public Entertainment Licence under the PPEO to use the pedestrian precinct for the 7th IDAHO.  The application stated that a temporary stage would be erected and gave its dimensions as not over 13 feet x 8 feet x 13 feet. However, this application was subsequently withdrawn by the Organisers on 12 May 2011 who took the view the licence was not necessary. Whether that view is correct is, of course, the principal issue in this appeal.

  222. The 7th IDAHO took place on 15 May 2011 as planned. A rehearsal of a dance performance to be given at the event took place from about 2pm. A police sergeant asked one of the Organisers to produce the temporary licence under the PPEO for inspection and, when told that the application for this had been withdrawn, informed her that the activity was in contravention of the law.

  223. An individual, identified by the initial T, who is the respondent to this appeal, attended the event in the pedestrian precinct at about 3pm. At that time, there were about 100 participants attending the event, which began with speeches given by representatives of the Organisers and others. The dance performance began shortly thereafter at about 3.35pm. For reasons that will become apparent, it is not necessary to describe the content of this performance in any detail. It took place on and in the area immediately in front of the stage. At the time, the 7th IDAHO event had drawn about 150 to 200 participants, including T, and during the dance performance a small crowd of passers-by also watched, some stopping to do so and others merely slowing down as they walked along the pedestrian precinct.

  224. Shortly after the performance began, a police inspector informed the Organisers that they required a licence under the PPEO and warned them that, as they did not have a licence, they were committing a criminal offence and might be liable to a fine and imprisonment. As a result, at about 3.46pm, the Organisers stopped the performance. It was originally to have run for about 20 minutes but was cut short by 10 minutes. After the performance was brought to an end, the 7th IDAHO event continued with readings and speeches until about 4.30pm.

    C. The litigation below

  225. The respondent began judicial review proceedings[131] challenging the Commissioner’s decision to halt the dance performance. There was, however, a dispute between the parties as to whether the dance performance was halted by the police or by the Organisers themselves in light of the police’s view that a licence under the PPEO was required. As a result, the original relief sought was amended to seek a declaration (the first declaration) that:

  226. a place of public entertainment, for the purposes of the PPEO, does not include an open space area (not being enclosed) where a political demonstration occurs.

  227. In the alternative, the respondent sought a declaration that the provisions of the PPEO, if they applied to the dance performance, were unconstitutional, being inconsistent with the provisions of articles 27 and 39 of the Basic Law, articles 16(2) and 17 of the Hong Kong Bill of Rights and articles 19 and 21 of the International Covenant on Civil and Political Rights.

  228. At first instance, before Lam J (as he then was), the respondent was unsuccessful.[132] The Judge held that the licencing regime in the PPEO did apply. He held that the dance performance was an “entertainment”, that it was also a “public entertainment” and that the pedestrian precinct was a “place of public entertainment”, as each of those terms is defined in the PPEO. The Judge also held that the provisions of the PPEO were not unconstitutional in that, although they restricted the various freedoms relied upon, they satisfied the proportionality test.

  229. On appeal, the Court of Appeal[133] allowed the appeal, differing from the Judge as to the applicability of the licencing regime. The Court of Appeal held[134] that, although not entitled to the first declaration, the respondent was entitled to a declaration in the following terms, namely that:

  230. the use of the pedestrian precinct on Lockhart Road on 15 May 2011 for the purposes of presenting or carrying on the Artistic and Dancing Expression at the 7th International Day Against Homophobia Demonstration did not require the grant of a licence for places of public entertainment under the Places of Public Entertainment Ordinance (Cap.172).

  231. Having so held, the respondent’s entitlement to the alternative declaration based on the constitutional challenge did not arise for decision and the Court of Appeal did not deal with, and expressed no views on, this issue.

    D. The relevant provisions of the PPEO

  232. Before identifying the issues for decision in this appeal, it is helpful first to set out the relevant provisions of the PPEO.

  233. Section 4(1) of the PPEO provides that:

  234. No person shall keep or use any place of public entertainment without a licence granted under this Ordinance.

    Contravention of this provision is a criminal offence under section 4(2).[135]

  235. Section 2 of the PPEO includes definitions of the terms “entertainment”, “public entertainment” and “place of public entertainment”, each of which is relevant in the context of this appeal.

  236. The definition of “entertainment” in section 2 is wide and includes “any event, activity or other thing specified in Schedule 1”. Schedule 1 provides:

  237. 1.

    The events,activities and other things referred to in the definition of ‘entertainment’ in section 2 of this Ordinance are the following or any part of any of them–

    (a)

    a concert, opera, ballet, stage performance or other musical, dramatic or theatrical entertainment;

    (b)

    a cinematograph or laser projection display;

    (c)

    a circus;

    (d)

    a lecture or story-telling;

    (e)

    an exhibition of any 1 or more of the following, namely, pictures, photographs, books, manuscripts or other documents or other things;

    (f)

    a sporting exhibition or contest;

    (g)

    a bazaar;

    (h)

    (Repealed L.N. 120 of 2002)

    (i)

    an amusement ride within the meaning of the Amusement Rides (Safety) Ordinance (Cap. 449) or any mechanical device (other than such an amusement ride) which is designed for amusement;

    (j)

    a dance party.

    2.

    In this Schedule ‘stage performance’ (舞台表演) includes a tragedy, melodrama, comedy, farce, pantomime, revue, burlesque, burletta, shadow play, an exhibition of dancing, conjuring or juggling, an acrobatic performance and any other stage event including an interlude.

    3.

    In this Schedule, ‘dance party’ (跳舞派對) means an event with all of the following attributes–

    (a)

    music or rhythmic sound of any kind or source is provided at the event;

    (b)

    the primary activity at the event is dancing by the persons attending the event;

    (c)

    either–

    (i)

    the number of persons attending the event exceeds 200 on at least one occasion during the event; or

    (ii)

    any part of the event occurs between 2 a.m. and 6 a.m.

  238. A “public entertainment” is defined as meaning:

  239. any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment.

  240. Finally, a “place of public entertainment” is defined as meaning:

  241. (a)

    so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

    (b)

    any vessel,

    in or on which a public entertainment is presented or carried on whether on one occasion or more.

    E. The issues in this appeal

  242. It is not now in issue that the dance performance staged by the Organisers was an “entertainment” within the meaning of the PPEO. At first instance, the Judge rejected the argument advanced on behalf of T that the performance was not an “entertainment” as defined because it was not for the sole or dominant purpose of entertainment but rather was for the purposes of a political demonstration.[136] That argument was “not seriously pursued” in the appeal and the Court of Appeal had no doubt the performance was an “entertainment”.[137] In this Court, the respondent expressly does not dispute that the performance was an entertainment under the PPEO being “an exhibition of dancing”.[138]

  243. The Organisers of the 7th IDAHO were plainly using the pedestrian precinct in Lockhart Road, where the temporary stage was erected and immediately in front of the stage, for the purposes of presenting or carrying on the dance performance. The question in issue is therefore whether the Organisers were keeping or using a place of public entertainment within the meaning of the PPEO, that being the activity for which a licence is required under section 4. That question in turn depends on whether the dance performance was a “public entertainment” and whether the place where it was “presented or carried on” was a “place of public entertainment”. The proper construction of the terms “public entertainment” and “place of public entertainment” in the PPEO (the construction issue) is therefore the primary focus of this appeal.

  244. If the construction issue is decided against the respondent, the constitutional issue will need to be addressed.

    F. The Construction Issue

  245. The ultimate question raised in this appeal is whether the PPEO licensing regime applied to the use of the pedestrian precinct in Lockhart Road between East Point Road and Cannon Street for the dance performance put on during the 7th IDAHO. But this involves the broader question of construction of whether and in what circumstances the PPEO applies to an entertainment presented or carried on in a public street or other publicly accessible open space.

  246. While accepting that the purpose of the PPEO was to provide a means of effectively ensuring public safety and order and to protect the participants from the hazards associated with the gathering of crowds at places of public entertainment, the Court of Appeal held that the reference to “admitted with or without payment” in the definition of “public entertainment” implied or suggested that the organiser or performer has, or is entitled to exercise, a certain degree of control as a matter of law, or exerts or purports to exert a certain degree of control as a matter of fact, over the place in which the public entertainment is presented or carried on, so as to enable him to admit, or exclude, members of the public from the entertainment.[139] The Court of Appeal concluded that[140]:

  247. In reality, where a public street is involved, unless the place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.

    The correctness of that conclusion is central to this appeal.

    F.1 The approach to construction

  248. The modern approach to statutory construction is not in issue. The proper starting point is to look at the relevant words or provisions having regard to their context and purpose: see HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at §63 and Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735 at §12. The context of a statutory provision should be taken in its widest sense and includes the other provisions of the statute and the existing state of the law: HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at §13. The purpose of a statutory provision may be gleaned from the provision itself or from a relevant report of the Law Reform Commission or the Explanatory Memorandum to the bill or from a statement of a responsible official to the Legislative Council in respect of the bill: ibid. at §14.

  249. Nevertheless, the object of the exercise is to ascertain the legislative intent of the language of the statute and, in this regard, a court cannot attribute to a statutory provision a meaning which the language, understood in the light of its context and statutory purpose, cannot bear: see HKSAR v Lam Kwong Wai at §63 and China Field Ltd v Appeal Tribunal (Buildings) (No.2) (2009) 12 HKCFAR 342 at §36.

  250. There are other canons of statutory interpretation that may also be relevant. It is a principle of statutory interpretation that a person should not be penalised except under clear law. Therefore, when considering opposing constructions of a statutory provision, the court presumes the legislature intended to observe this principle and should strive to avoid adopting a construction which penalises a person when the legislator’s intention to do so is doubtful.[141] Similarly, as part of the principle against doubtful penalisation, there is a presumption against the imposition of a statutory interference with freedom of association or of speech without clear words.[142]

  251. Before addressing the construction of the relevant provisions, it is helpful to put them in context by reference to the licensing scheme under the PPEO and the material legislative history of that ordinance.

    F.2 The licensing scheme under the PPEO

  252. The PPEO provides a statutory licensing scheme for places of public entertainment. The requirements of the application process under the PPEO and the relevant regulations thereunder establish what can be described as a multi-disciplinary, pre-event risk assessment process in relation to the keeping and use of a place of public entertainment. It is an assessment that enables risks to be identified and precautions to be put in place before a public entertainment takes place.

  253. As noted above, it is a criminal offence to keep or use a place of public entertainment without a licence granted under the PPEO. Section 10(1) provides that a licence for the purposes of the PPEO shall be in such terms as the licensing authority[143] determines. Section 10(2) specifies that the licence may be subject to terms and conditions which: specify the period of the licence; specify when the place to which it relates may be used for public entertainment; require specified measures to be taken by the licensee; require the licensee to provide first aid personnel; specify the maximum number of persons which may be admitted to the place to which the licence relates.

  254. By section 7(1), the Secretary for Home Affairs may by regulation provide for various matters including:

    1. the kinds of entertainment for which places of public entertainment may be licensed and the mode of application, and fees, for licences;

    2. the cancellation of any licence;

    3. the location of a place of public entertainment generally or on or in any place, building, erection or structure and the circumstances, conditions and restrictions in or subject to which such location may be permitted;

    4. the materials of which any place of public entertainment shall be constructed and regulating the construction of such place;

    5. the exercise of measures against overcrowding and for the control and prevention of fires and for the maintenance of sanitary conditions in any place of public entertainment;

    6. the maintenance of peace and good order in a place of public entertainment; and

    7. the entry and inspection for the purposes of securing compliance with the ordinance and regulations of a place of public entertainment.

  255. The Places of Public Entertainment Regulations (Cap.172A) (the PPER) have been duly made pursuant to section 7 of the PPEO. The PPER include detailed provisions as to the form of a licence and the manner in which it is to be applied for. Permanent and semi-permanent structures specially designed as theatres and cinemas are dealt with in Part I and other places of public entertainment in Part III. The application form distinguishes between “a place of public entertainment (cinema/theatre)”, to which regulation 3 (in Part I) applies, and “a place of public entertainment (other than cinema/theatre)” and a “temporary place of public entertainment”, to which regulation 162 (in Part III) applies.

  256. Regulation 162 provides that a person who desires to keep or use any place of public entertainment shall apply in such form as the licensing authority may specify not less than 42 days before the commencement of the proposed entertainment. If the licensing authority does not reject the application, it is required to forward a copy of the application to various persons, namely

    1. the Commissioner of Police;

    2. the Director of Fire Services;

    3. one of the Building Authority or Director of Housing or Director of Marine (depending on the place to which the application relates); and

    4. the Director of Electrical and Mechanical Services (if laser equipment is, or is to be, installed).

  257. Regulation 162(3) requires the applicant to supply (unless the application relates to a vessel) not less than 28 days before the commencement of the proposed entertainment:

  258. (a)

    a plan showing to the satisfaction of the licensing authority the layout of the place towhich the application relates including, in particular, each of the following-

    (i)

    each part of the place intended to be used for holding entertainment;

    (ii)

    each part of the place intended to be used for seating or otherwise accommodating an audience (if any);

    (iii)

    each existing and any proposed exit route from the place;

    (iv)

    the position or location in the place of any existing or proposed permanent structure;

    (v)

    each part of the place in which it is intended that temporary barriers may be erected or otherwise provided;

    (vi)

    the proposed or actual location in the place of all sanitary fitments;

    (vii)

    the proposed or actual location in the place of fire service installations and equipment;

    (viii)

    all or, as may be appropriate, any 1 or 2 of the following means by which ventilation of the place, or any part thereof, is provided, namely, windows, ducts or any mechanical means;

    (ix)

    the proposed or actual location in the place of all laser equipment (if any);

    ....

    (c)

    in the case of a temporary structure, diagrams sufficient to illustrate the proposed method of construction and the spacing and scantling of structural members.

  259. Under regulation 162(8) (and subject to the provision of certain specific certificates and plans required under regulation 162(9)), the licensing authority, once notified by each of the persons to whom the application has been forwarded that he has no objection to it, may grant the licence sought.

  260. In addition to the pre-event risk assessment process, the PPEO and PPER provide a means by which the keeping or use of a place of public entertainment may be monitored to ensure compliance with the PPEO and PPER. Thus:

    1. Regulation 169 gives the licensing authority and various of the other persons to whom the application may be forwarded the right of entry to the place to which the application relates in order to inspect it for the purposes of the PPEO.

    2. Regulation 170B provides that:

      Where a licence is granted or renewed under these regulations, then for so long as the licence remains in force, the licensee shall exhibit and keep exhibited at all times the licence in a conspicuous position at the entrance or, if there is more than one entrance, the main entrance of the premises to which the licence relates.

    3. Regulation 174(1) provides that:

      When it appears to any police officer not under the rank of Chief Inspector or to any other police officer specially authorized in that behalf in writing by the Commissioner of Police that it is necessary so to do for the protection of any person present in a place of public entertainment in an event of emergency, or for the prevention of disorder in the place of public entertainment, it shall be lawful for that officer personally to order that the place of public entertainment be temporarily closed or vacated, and upon any such order being given every member of any audience, and every other person (if any) present at the place of public entertainment shall forthwith comply with it in an orderly manner.

    4. Section 11 of the PPEO enables the licensing authority to apply to a magistrate for a prohibition order (to prohibit the operation of an unlawful place of public entertainment) and a closure order (to close a place of public entertainment where the prohibition order is not complied with).

    F.3 The legislative history of the PPEO

  261. As will be seen, the PPEO has a long legislative history. It has been the subject of numerous amendments, in the nature of incremental reactions to particular policies and events rather than comprehensive reviews of the legislative scheme, which have in turn, extended, restricted or modified the licensing regime.

  262. (a) Theatres Regulation Ordinance 1908

  263. The PPEO can be traced back to the Theatres Regulation Ordinance 1908 (Ord. No.18 of 1908) which prohibited the having or keeping of “any building, matshed or other place of public resort” for the public performance of stage plays without a licence.

  264. (b) Places of Public Entertainment Ordinance 1919

  265. The Theatres Regulation Ordinance 1908 was replaced by the Places of Public Entertainment Ordinance 1919 (Ord. No.22 of 1919) – i.e. the PPEO – which was enacted to consolidate and amend the law relating to places of public entertainment. This prohibited the keeping or use of “any permanent or temporary building or matshed” (underlining added) for any public entertainment without a licence. The 1919 Ordinance defined “Entertainment” as including:

  266. any concert, stage play, stage performance, cinematograph display, exhibition of dancing, conjuring or juggling, acrobatic performance, boxing contest, or circus, or any other entertainment of a similar character;

    and “Public Entertainment” as meaning:

    any entertainment, as above defined, to which the general public are admitted with or without payment for admission.

    (c) Places of Public Entertainment Regulation (Amendment) Ordinance 1951

  267. The PPEO as enacted in 1919 was amended by the Places of Public Entertainment Regulation (Amendment) Ordinance 1951. This substituted a new definition of “entertainment” as including:

  268. any concert, stage play, stage performance or other musical, dramatic or theatrical entertainment or any part thereof, any cinematograph display, lecture, story-telling, circus, exhibition of pictures, photographs or books, exhibition of dancing, conjuring or juggling, acrobatic performance, exhibition of abnormal persons or animals, any sporting exhibition or contest, any bazaar, any merry-go-round, flying wheel, or other mechanical device designed for amusement.

  269. More importantly, the 1951 Ordinance added a new definition of “place of public entertainment” as meaning:

  270. any place on which there is any erection or structure, any premises or building whether temporary or permanent or any water-borne craft or other place in or at which a public entertainment takes place whether on one occasion or more;

    [underlining added]

    and amended the principal legislative prohibition to one of keeping or using such a place without a licence.

  271. As stated in the “Objects and Reasons” (i.e. the explanatory memorandum) of the relevant bill, the Colonial Secretary informed the Legislative Council when moving the bill that the proposed replacement definition of “entertainment” and the interpretation for “place of public entertainment”[144] had the effect of “widening considerably the places and forms of entertainment subject to the control imposed by the Ordinance”.

  272. (d) Places of Public Entertainment (Amendment) Ordinance 1970

  273. The PPEO as amended by the 1951 Ordinance was further amended by the Places of Public Entertainment (Amendment) Ordinance 1970. This was enacted as a result of various recommendations made in the Report of a Commission of Inquiry to investigate the collapse of the stand at a tattoo held in Sek Kong. The 1970 Ordinance substituted the definition of “place of public entertainment” with a new definition of that term as meaning:

  274. (a)

    any place on which there is any building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

    (b)

    any vessel,

    in or on which a public entertainment is presented or carried on whether on one occasion or more.

    [underlining added]

  275. The Explanatory Memorandum to the relevant bill stated that the new definition of place of public entertainment “includes an[y] place on which there is a structure, whether temporary or permanent, capable of accommodating the public, such as a tent or a grandstand, and any vessel.” In moving the bill, the Attorney-General explained to the Legislative Council that the definition of “place of public entertainment” then current (in the 1951 Ordinance) was “wide enough to include a place on which there is no structure capable of accommodating the public, for example, a field which is set aside for a gymkhana” but that this was “unnecessary, since the object of the Ordinance, and of the regulations which are made under it, is to apply appropriate safety standards to buildings and structures used by members of the public attending public entertainments”. The new narrower definition would “in future only include places where a building of some kind, capable of accommodating the public, is erected and also vessels”.

  276. (e) Places of Public Entertainment (Amendment) Ordinance 1980

  277. The PPEO as amended by the 1970 Ordinance was further amended by the Places of Public Entertainment (Amendment) Ordinance 1980. This amended the definition of “place of public entertainment” to the following meaning, namely:

  278. (a)

    so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

    (b)

    any vessel,

    in or on which a public entertainment is presented or carried on whether on one occasion or more.

    [underlining added]

  279. The Explanatory Memorandum to the relevant bill stated that these amendments were “designed to make it clear that a place of public entertainment may be located within a building used also for other purposes and to ensure that the circumstances in which this is done can be regulated and appropriate restrictions and conditions imposed.” Consistently with this, the Secretary for the Environment informed the Legislative Council, when moving the bill, that the existing regulations did not cater for small 500 to 2,000-seat cinemas above ground level in multi-storey buildings and that the aim of the proposed amendment was “to dispel any doubts as to the powers of the Governor in Council to make regulations to provide for the location of places of public entertainment within buildings which are used also for other purposes and to lay down appropriate conditions.” He stated that, if the amendment was enacted, new regulations would be made to “regulate the location of small places of public entertainment, particularly cinemas, in non-domestic multi-storey buildings or the non-domestic parts of such buildings”.

  280. (f)  Public Entertainment and Amusement (Miscellaneous Provisions) Ordinance 1995

  281. The PPEO as amended by the 1980 Ordinance was further amended by the Public Entertainment and Amusement (Miscellaneous Provisions) Ordinance 1995. Relevantly in the context of this appeal, the 1995 Ordinance amended the definitions of “entertainment” to include “any event, activity or other thing specified in the Schedule” and “public entertainment” to mean “any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment.” It also added the present section 10 providing for the licence for a public entertainment to be subject to conditions.

  282. As regards the amended definitions, the Secretary for Recreation and Culture explained to the Legislative Council in moving the relevant bill that the amendment of the definition of “entertainment” was to revise and update the definition by removing outdated forms of entertainment and including laser projection display as a new form of entertainment. As regards the introduction of section 10, the Secretary explained that this was to give effect to relevant recommendations made in the Final Report of the Hon. Mr Justice Bokhary into the Lan Kwai Fong Disaster including crowd control measures and provision of first aid services.

  283. (g) Places of Public Entertainment (Amendment) Ordinance 1997

  284. The 1995 Ordinance was amended by the Places of Public Entertainment (Amendment) Ordinance 1997. This materially added section 11 to the PPEO relating to prohibition and closure orders (see above). 

  285. Also in 1997, the PPER were amended by the Places of Public Entertainment (Amendment) Regulation 1997 which added the current regulation 170B concerning the exhibition of the licence (see above).

    F.4 The context and purpose of the PPEO

  286. The context of the relevant provisions of the PPEO includes other provisions of the PPEO itself, including provisions of the PPER addressed above, and the existing state of the law, including other ordinances such as the Summary Offences Ordinance (Cap.228) (the SOO), the Police Force Ordinance (Cap.232) (the PFO) and the Public Order Ordinance (Cap.245) (the POO) relevant to the use of and policing of public places.

  287. As to statutory purpose, it is plain from the scheme of the PPEO as well as its legislative history that its essential purpose is the regulation of safety at places where public entertainments are presented or carried on so that the safety of those members of the public attending the various forms of entertainment at those places will be adequately protected. The matters with which the licensing authority is concerned and which may be the subject of conditions in any licence granted, such as structural integrity, mechanical installations, fire precautions, first aid and sanitary fitments, are all clearly directed towards this purpose. That this is the essential purpose of the PPEO is not in dispute and was recognised both by Lam J at first instance[145] and Cheung CJHC in the Court of Appeal[146].

  288. However, it is important to recognise that there are limits to the extent this statutory purpose can be used to construe the PPEO. These limits derive in part from the self-evidently limited nature of the licensing regime imposed by the PPEO. For example, notwithstanding legitimate safety concerns that might exist in relation to forms of entertainment other than those listed in Schedule 1, those other forms of entertainment are not subject to the scheme. Similarly, notwithstanding that large numbers of people may be invited to attend a private entertainment, the PPEO only applies to those places defined as places of public entertainment. As Lord Millett NPJ observed in China Field Ltd v Appeal Tribunal (Buildings) (No.2)[147]:

  289. There can be no quarrel with the principle that statutory provisions should be given a purposive interpretation, but there has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that intention must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing.

    F.5 Is admission to the place of public entertainment required?

  290. We are concerned in this appeal with the meaning of the term “place of public entertainment” because it is the keeping or use of such a place that triggers the requirement for a PPEO licence. The definition is wide and includes any “place”. A place can prima facie be an open space if suitably defined and delineated so that it can be identified.[148] The various locations within the definition, including a suitably defined open space capable of accommodating the public, are places of public entertainment if they are places “in or on which a public entertainment is presented or carried on whether on one occasion or more”. One must therefore have regard to the definition of “public entertainment” in order to identify whether a place is a “place of public entertainment”. A “public entertainment” is defined as any entertainment within the meaning of the PPEO “to which the general public is admitted with or without payment”.

  291. On behalf of the Commissioner, Mr Johnny Mok SC[149] contends that the concept of admission only applies to the entertainment rather than the place of entertainment and is therefore only used to distinguish between a public entertainment, to which the PPEO may apply, and a non-public or private entertainment, to which the ordinance does not apply. Admission to the place of entertainment is not, it is contended, required.

  292. I accept that the definition of “public entertainment” including the requirement of admission of the public distinguishes a public entertainment from a private entertainment. That is the reason why an entertainment within Schedule 1 of the PPEO which is presented in a private home, even if many people are in attendance, is not a public entertainment. It is also why, if a person were to hire a cinema for the exclusive viewing of a film as part of a private party, the absence of admission of the public would mean the screening of the film was not a public entertainment, however many invitees there were.

  293. However, I do not, with respect, accept the Commissioner’s latter contention that admission to the place of entertainment is not required.

  294. The PPEO is an ordinance to consolidate and amend the law relating to places of public entertainment and the principal operative provision is a licence requirement for the keeping or using of a place of public entertainment. That licence requirement is directed at those persons who present or carry on public entertainments, albeit not necessarily for financial gain, in respect of their keeping or using places of public entertainment.

  295. The definition of “place of public entertainment” is not to be read in isolation and necessarily incorporates the definition of “public entertainment” since that is part of the term itself. A “public entertainment” as defined requires that it be one “to which the general public is admitted”. The requirement that the public be admitted to the place is therefore an integral part of the definition of a “place of public entertainment”. This can be seen most clearly in relation to an entertainment presented or carried on in or on a vessel. The vessel cannot be the place where the public entertainment is so presented or carried on unless the public are admitted onto it. If it were otherwise, there would be no safety concerns for the public relating to the vessel as the place of public entertainment and the legislative scheme for the notification of, among other Government agencies, the Director of Marine would make no sense. That the public must be admitted to the place in question is, in any event, also inherent in the necessity for the “place”, if other than a vessel, to be “capable of accommodating the public”. The accommodation of the public in this context clearly suggests a physical accommodation by reference to the characteristics of the location.

  296. As can be seen from the summary of the legislative history above, when the definition of “public entertainment” was introduced in 1919, the only entertainments to which the public could be admitted were entertainments which took place within a structure of some sort (“any permanent or temporary building or matshed”). Admission to the entertainment therefore involved both a locality and admission to that place where the entertainment as defined was to take place. Although the places of public entertainment were widened in 1951, then narrowed in 1970 and again widened in 1980, it was never suggested in any of the relevant explanatory memoranda or speeches in Hansard moving those legislative amendments that the admission of the public to the public entertainment did not involve an admission to a locality.

  297. If admission to the place of public entertainment were not necessary, the surprising (and therefore, in my view, unintended[150]) consequence could occur of places which were entirely remote and unconnected to where the actual entertainment was presented or carried on being constituted a place of public entertainment. For example, an entertainment which could be seen or heard from a distance removed from the principal place where the public entertainment was being presented or carried on would give rise to subsidiary places of public entertainment requiring licensing. Spectators of a football match or musical concert who found vantage points outside the stadium or auditorium where the game or concert was being played or performed would, on the Commissioner’s case,[151] be said to be admitted to the public entertainment and the various vantage points, if capable of accommodating the public, could each then be said to be places of public entertainment for which licences would be required. Yet these could be places of which the organiser of the public entertainment in the stadium or auditorium was completely unaware and over which he would have no influence as regards matters of public safety or order.

  298. One of the conditions to which a licence under the PPEO may be subject is a condition specifying the maximum number of persons which may be admitted as regards entertainments taking place in the place to which the licence relates.[152] In addition, the concept of admission to the place of public entertainment under the PPEO is reinforced by the statutory restrictions on the unauthorised sale of tickets.[153] Although post-dating the relevant definitions with which we are concerned, these provisions form part of the context of the PPEO in which the provisions under consideration are to be construed. The form of these legislative provisions is incongruous and inconsistent if the definitions in the PPEO are read as not requiring admission to the place of the entertainment and one can legitimately ask why the draftsman framed those provisions in this way if admission to the place of entertainment was not required.

  299. I have had the benefit of reading in draft the judgment of Mr Justice Tang PJ which addresses the significance of the words “讓....入場” in the Chinese version of the definition of “public entertainment”. His view on the use of those words in the Chinese definition of “public entertainment” supports the conclusion that admission of the public to the place of public entertainment, and not merely the entertainment, is required. I also note the use of the same word “” in the Chinese definition of “place of public entertainment”.

  300. I therefore conclude that admission to the place of public entertainment is required. That then raises the question of what the requirement of admission entails.

    F.6 What does the requirement of admission entail?

  301. This is the critical question in this appeal.

  302. As noted above, the Court of Appeal concluded that insofar as an open space may be a place of public entertainment the requirement that the place be one to which the public is admitted means that the place must be enclosed or cordoned off and the person who is keeping or using the place must have the right and ability to admit or exclude others from it.

  303. The Commissioner strongly challenges this conclusion and contends that the Court of Appeal’s construction is too narrow as a matter of language and contrary to the fundamental statutory purpose underlying the PPEO. The PPEO defines “entertainment” very widely to include the list of matters specified in Schedule 1 some of which typically take place both indoors and outdoors and, it is submitted, admission should be construed consistently with the application of the PPEO to these various forms of entertainment. The public interest in ensuring appropriate safety measures are in place is equally strong, if not stronger, the more open and porous to entry a particular place is. Given the PPEO’s purpose of protecting public safety and order, a purposive construction supports the conclusion that control is not necessary. All that is necessary is an area that is defined or delineated.

  304. Mr Mok argues that, since admission may be without payment and the PPEO refers only to entertainment to which the public is “admitted” but does not specify who enables admission, the legislative concern was with the fact of public access to or participation in an entertainment and thus public exposure to risks. The Commissioner refers to the dictionary definition of “admit” which includes the meanings, in an involuntary sense, of: “Be open to or compatible with; leave room for”; and “Afford entrance to; have room for”.[154] It is therefore contended that the word “admitted” is capable of being understood in this passive sense and that the words “to which the general public is admitted with or without payment” should be construed purposively as requiring only that the public entertainment is one to which members of the public are afforded or allowed access or in which the public can participate. This construction, it is argued, is entirely consistent with the natural and ordinary meaning of the word “admitted” and will best achieve the PPEO’s fundamental purpose of protecting public safety and order.

  305. Since the underlying purpose of the PPEO is accepted to be the protection of public safety and order, must the word “admitted” be construed in the sense the Commissioner contends it should or is it to be construed, as the Court of Appeal concluded, as requiring the person presenting or carrying on the entertainment to exercise control over those who are admitted?

  306. There is some justification in a number of Mr Mok’s criticisms of parts of the reasoning of the Court of Appeal for its conclusion on the issue of control.

  307. I would accept that little, if any, assistance is to be derived from reliance on either Scott v Cawsey[155] or R v Bow Street Magistrates’ Court, ex p McDonald[156].

  308. In rejecting the Commissioner’s case below, the Court of Appeal relied[157] on a passage in the judgment of Griffith CJ in Scott v Cawsey, a decision of the High Court of Australia, where he said (at p.138):

  309. The term ‘admission,’ however, involves the idea of locality, and of the ability of the person who permits the admission to exclude others from the place of entertainment or amusement except with his consent.

  310. The case concerned a statute prohibiting the use for “public entertainment or amusement” on a Sunday of “a house, room, or other place” to which persons were “admitted by the payment of money”. Payment was required for admission to the railed-off part of a larger room, to which entrance was free, in which a public entertainment was given. The statutory context and purpose was therefore very different to that of the PPEO, being aimed at persons seeking to profit from holding entertainments in premises under their control rather than public safety and order. Therefore, although suggesting that the natural and ordinary meaning of “admitted” implies control, the case provides no direct assistance on a purposive construction of the word “admitted” in the PPEO.

  311. Before Lam J, the first instance decision of Dyson J[158] (as he then was) in R v Bow Street Magistrates’ Court, ex p McDonald was relied on by the Commissioner to support the submission that the use of a place need not carry with it the right of control.[159] That case concerned the issue of whether the licensing requirements under the London Government Act 1963 applied to a busker’s use of Leicester Square to play the guitar. The Act prohibited the use of any premises, which were defined to include any place, for public entertainment without a licence. Dyson J rejected the argument that the busker could only be using Leicester Square for public entertainment if he had control of the place. The busker therefore required a licence.

  312. However, Dyson J’s judgment had been reversed on appeal and, unfortunately, the English Court of Appeal’s judgment was not cited to Lam J.[160] The English Court of Appeal reversed Dyson J on the basis that the Act was not designed to be applied to a person playing his guitar in a public place to which the public had access but over which the local council had innumerable powers.

  313. In the Court of Appeal, Cheung CJHC referred to ex p McDonald to illustrate the proposition that, absent a special arrangement with the Government, a public street is inherently inapt to be a place of public entertainment.[161]

  314. I do not think either judgment in ex p McDonald sheds light on the meaning of the word “admitted” in the PPEO. The relevant provision in the London Government Act 1963 did not require the public to be admitted either to the public entertainment or the place where the public entertainment was presented or carried on, as is required in relation to the PPEO. In any event, it was concerned with the particular factual position of a busker, which normally speaking would not give rise to the same concerns of public safety or order as a more substantial public entertainment involving, for example, the construction and use of a stage.

  315. Nor do I think the Court of Appeal’s reliance on the licensing requirements that might be imposed, in particular the conditions to which a licence might be subject under section 10 of the PPEO, demonstrates that the regime “simply cannot work if the organiser or performer has no ability to control admission”.[162] Those conditions are not mandatory and their imposition will, in any given case, depend on the circumstances of the particular place of public entertainment.[163] That some of those conditions might not be appropriate for an open space in a public street does not mean the scheme of pre-event risk assessment cannot be applied to such a place, nor that the need for such a risk assessment might not exist. Similarly, I do not share the Court of Appeal’s view that unless a public street is suitably enclosed or cordoned off, compliance with regulation 170B of the PPER is impossible.[164]

  316. Notwithstanding those criticisms of the Court of Appeal’s reasoning, I have nevertheless, for the following reasons, reached the conclusion that the requirement of admission does require some form of control over the admission of persons to the public entertainment and the place where it is being presented or carried on and, as a corollary, a right of exclusion from that place.

  317. It is true, as the Commissioner contends, that the purpose of the PPEO is to promote public safety and order and there is undoubtedly a need to regulate crowds in public places. The Lan Kwai Fong disaster on New Year’s Day in 1993 was referred to in the Commissioner’s submissions to demonstrate this need and the point was made that a PPEO licence had been issued in respect of an entertainment event which formed part of the activities resulting in the tragedy. The circumstances in which that licence was granted are not known and it cannot be assumed that the organiser of that particular entertainment for which the licence was granted did not have sufficient control over entry, so reliance on the fact of the licence having been granted cannot assist in resolving the construction issue in this appeal. In any event, more importantly, as I have already said, there is a limit to purposive construction in that a court cannot attribute to a statutory provision a meaning which the language, understood in the light of its context and statutory purpose, cannot bear. In the case of the PPEO, the statutory purpose of promoting public safety and order would be an argument in favour of a licence requirement in respect of all forms of entertainment that might draw a crowd in any place. Plainly, however, this would not be justified on the statutory language.

  318. In its natural and ordinary meaning, in my opinion, the word “admitted” suggests an active sense of giving permission to enter or have access or letting a person in. This is so even if one considers an entertainment rather than a place as the object of the admission, but it is all the more so if admission is to a place (as I have concluded above). It is certainly an unusual use of the word “admitted” to convey a sense of merely having access to or being exposed to or having an ability to participate in an entertainment. The wording of the definition would otherwise be adequate and more naturally expressed if it referred to a public entertainment being one to which the general public “has access to”, “is exposed to” or “can participate in”. The concept of admission would normally, in my view, connote something more than that.

  319. It was suggested that the additional words “with or without payment” following the phrase “to which the general public is admitted” support the argument that control of admission is unnecessary. If payment for admission to the entertainment were required, a contrary answer would be clear since there would need to be some control mechanism for this and non-payment would plainly lead to exclusion. However, the obverse is not the case. Even though admission may be without payment, this does not point inevitably to the conclusion that no form of control of admission is required. It remains necessary to ascertain the legislative intent of the words “to which the general public is admitted”.

  320. Here again, it is relevant to refer to the legislative history. The phrase “to which the general public are admitted with or without payment for admission” (emphasis added) was part of the original definition of “public entertainment” in the PPEO as enacted in 1919. As I have already observed, the places which then required licensing were all structures into which one would have to be physically admitted. There is no reason to think that the word “admitted” would then have been understood as bearing only a passive sense of having access. The active sense of the word was clear, in particular given the qualification that it mattered not whether payment was required “for admission”.[165] When the definition of “places of public entertainment” was widened in 1951, then narrowed in 1970 and then widened again in 1980, the same definition of “public entertainment” including the word “admitted” remained. There is no reason to think that the word “admitted” varied in its meaning depending on whether a place of public entertainment was limited to a structure, in which case it bore an active sense of admission, or was not so limited, in which case it bore a passive sense of admission. This change would have been significant and there is nothing in any of the admissible extrinsic materials to suggest it did change its meaning in this way.

  321. In this regard, I again respectfully refer to the views of Mr Justice Tang PJ as to the significance of the words “讓....入場” in the Chinese version of the definition of “public entertainment”. His view on the import of those words strengthens the above conclusion that, based on the English word “admitted”, the PPEO contemplates that someone must be admitting members of the public to the entertainment in the active sense of permitting them to enter and, as a corollary, exercising the ability to exclude others.

  322. I have referred above to the surprising consequence of places unconnected with the presentation or carrying on of an entertainment being places of public entertainment if admission to the place of the entertainment were not required. If admission of the public to an entertainment did not imply some control over admission or exclusion, other surprising and, in my view, unintended results would follow.

  323. It would mean that any busker performing in a place to which the public had access would require a PPEO licence. It is correct that a busker may be covered by a licence issued by the Commissioner and therefore not liable to prosecution for a nuisance committed in a public place under section 4(15) of the SOO[166], but there is nothing in the SOO or PPEO that suggests that a licence under section 4(15) of the former relieves the busker from an obligation to obtain a licence under the latter. The two ordinances are directed at different concerns and are not mutually exclusive regimes of control. On the Commissioner’s construction of “admitted”, a busker playing in a delineated portion of a public space and attracting a crowd of passers-by would be performing in a place of public entertainment and so require a licence. I do not think it is an answer to say that buskers are not within the scheme of the PPEO because they do not generally attract large crowds and so do not engage public safety concerns. The applicability of the PPEO licensing regime is not predicated on a particular number of people being admitted.

  324. The nightly laser projection display from a number of buildings in Central and Kowloon, watched by members of the public from various vantage points, would give rise to numerous places of public entertainment in open public areas subject to no control of the organisers of the display.[167] Mr Mok informed the Court that the laser display is organised by the Leisure and Cultural Services Department (LCSD). Whilst a place that is under the management of the LCSD is exempt from the operation of section 4 of the PPEO,[168] this exemption would not prevent the consequence that each of the various public spaces not managed by the LCSD where crowds might gather, and are encouraged to gather, to watch the display would be places of public entertainment and thus require a licence. Again, I do not think it is an answer to say that there is no public safety concern in relation to any of those places since that is purely a matter of assumption and, in any event, the basis for the imposition of the licence requirement is the keeping or use of a place of public entertainment and not the keeping or use of a place about which there are safety concerns. The pre-event risk assessment is designed to determine if there is a risk and, if so, what measures might be required to mitigate that risk.

  325. A vessel on which an orchestra was playing (but on which no audience was present) would not itself be a place of public entertainment but any public spaces on shore or another vessel in no way controlled by the organisers of the orchestra performance where the music could be heard by members of the public would be. 

  326. It is not uncommon to see gatherings of domestic helpers and others in various public spaces on Sundays when impromptu and informal dancing and singing performances take place which could attract passers-by to watch. On the Commissioner’s case, those places would then become places of public entertainment and the dancers or singers would need a licence under the PPEO to use them.

  327. These examples of surprising consequences of construing “admitted” as merely meaning having access to or being exposed to or being able to participate in an entertainment demonstrate, in my view, that there is, at the very least, a measure of doubt as to whether these situations are truly intended to be subject to the PPEO licence regime. Who would be responsible for applying for a PPEO licence in these cases? It would not be a principled approach to the construction of the PPEO for the answer to this question to depend on subjective factors such as the intention of the organiser of the entertainment. How, given the degree of detail required to be provided to the licensing authority, could the application in these cases be meaningfully made by the organiser? Why, in the case of buskers or other informal entertainments, should the application of the licensing regime depend on speculation as to the number of persons who might attend? It is not satisfactory to say that these surprising consequences could be avoided by the grant of exemption orders under section 3A(1) of the PPEO[169]: those orders would be dependent on the exercise of administrative discretion; in any event, they would apply to particular places, not forms of entertainment.

  328. In this regard, it is of significance, in my opinion, that the imposition of a licence requirement on the keeping or use of a place of public entertainment entails an interference with the constitutionally protected freedoms of assembly and expression.[170] Since clear words are required to effect any such restriction, I would prefer to resolve these real doubts as to meaning in favour of the construction that does not amount to a restriction of the relevant right.

  329. Similarly, since a failure to obtain a licence for the keeping or use of a place of public entertainment constitutes a criminal offence, the principle against doubtful penalisation would tend to favour adopting the construction of two competing constructions which does not give rise to a risk of prosecution.

  330. For these reasons, I have come to the conclusion that the word “admitted” is to be construed in an active sense and as requiring that, for a place to be a place of public entertainment, the person presenting or carrying on the public entertainment must be able to control admission to the place where the entertainment is being presented or carried on. Although this construction is narrower than that urged on us by the Commissioner, for the reasons I have given and notwithstanding the statutory purpose of the PPEO, I do not think the wider construction is justified.

    F.7 Unless admission can be controlled, the PPEO cannot apply to a public street or other publicly accessible open space

  331. In the course of his oral submissions on behalf of the Respondent, Mr Hectar Pun[171] appeared to suggest that the PPEO could only apply to private premises and not to any public place and therefore could not apply to a public street. However, this was inconsistent with the position taken in the Respondent’s printed case that a PPEO licence could be granted in respect of an entertainment in a public street.[172]

  332. There is certainly some basis for questioning whether the PPEO was intended to apply to a public street or any other public place to which the general public has an unrestricted right of access under the general law. As a matter of ordinary language, it is odd to speak of the public being admitted to either and the legislative history of the PPEO does not suggest this particular issue has been considered by the Legislature.

  333. On the other hand, there is nothing in the PPEO to suggest that it could not apply to an appropriately defined and delineated place in a publicly accessible open space in respect of which a person presenting or carrying on a specified entertainment could control admission. For some open public spaces, such ability to control admission might be conferred by the terms of a particular licence arrangement, e.g. in the case of the use of part of a public park. In practice, this might require the place of the public entertainment to be enclosed or cordoned-off but, depending on the particular place, control of admission might be possible without any such enclosure or cordoning-off.[173]

  334. So far as a public street is concerned, the respondent’s concession that control over admission could be exercised was premised on the grant of a licence under the PPEO. This reasoning is obviously circular since, on my construction of the relevant provisions, the ability to control admission is a necessary pre-condition to the making of an application for a licence. Since the public has a right of way over a public street, it is difficult to see how control over admission of members of the public could lawfully be exercised. Absent some other basis for exercising control over admission by members of the public to a public street, the PPEO licence regime cannot apply to an entertainment presented or carried on in a public street.

  335. Using a public street to present or carry on an entertainment would, depending on the scale of the entertainment, very likely constitute an obstruction or otherwise be unlawful under the SOO or POO. In that case, the organiser or performer would almost certainly run the risk of being required to stop the entertainment and of being prosecuted for public nuisance or obstruction. Although this may be a reactive means of addressing a situation in which public safety concerns may arise, I do not regard this as being intrinsically inadequate and it does not persuade me that the provisions of the PPEO require the word “admitted” to be construed unnaturally in order that the PPEO scheme can then be applied to a public street. If it is thought that this conclusion leaves a lacuna in the law, that is a matter for the Legislature to address by legislation.

    F.8 The public was not admitted to the place of public entertainment in this case

  336. In the Commissioner’s printed case, it is argued that, in any event, the public was admitted to the entertainment here in a sufficiently active sense because the Organisers chose the venue, actively invited the public to attend, arranged the event in such a way as to limit their exclusionary control and continued to exercise control by the provision of marshalls.

  337. That argument of the Commissioner is premised on the rejected contention that what is required is only admission to the public entertainment and not the place of public entertainment. In the present case, Lam J found that the Organisers did not have the power to exclude other persons from the pedestrian precinct in Lockhart Road.[174]

  338. It follows that the public was not admitted to the pedestrian precinct in Lockhart Road where the dance performance presented as part of the 7th IDAHO event was presented or carried on. The pedestrian precinct was therefore not a place of public entertainment under the PPEO and the Organisers did not require a licence for its use.

    F.9 PPEO not ousted by the availability of general police control

  339. In answer to the Commissioner’s argument for a wider application of the PPEO to a place over which the organiser of a public entertainment has no control, the respondent sought to argue that there was no useful purpose in applying the licensing regime in the PPEO to a public street given the existing powers of the police to regulate activities there. The powers relied upon were those under the SOO[175], the PFO[176] and the POO[177].

  340. I do not accept this argument, which may have been advanced in order to support the contention, relevant were the constitutional issue to have arisen for decision, that the restrictions constituted by the PPEO were not necessary. The powers to be exercised by the police under those ordinances all plainly serve very different purposes to those addressed by the PPEO. None of the other ordinances address the matters with which the PPEO is concerned, nor in the same manner or degree of detail. Public safety and order may be affected by matters governed by the specific concerns of the PPEO licensing regime and which are different to those matters which give rise to the powers under the SOO, the PFO and the POO.

  341. Nor do I accept the Respondent’s argument that, if a PPEO licence has been obtained in respect of a public place, the police’s other general powers over that place are ousted and instead then limited to the powers under PPER regulations 169 or 174 (see above). In my view, that argument is untenable. Those other general powers continue to exist even where a PPEO licence is granted over a defined area of a public place.

    G. Disposition

  342. The construction issue being decided in favour of the respondent, it is not necessary to address the constitutional issue and, for the above reasons, I would dismiss the appeal.

    Lord Neuberger of Abbotsbury NPJ

    A. Introductory

  343. The issue of principle raised by this appeal is whether a licence under the Places of Public Entertainment Ordinance (Cap 172), the PPEO, is required for an entertainment which is presented or carried on in an area which is wholly comprised in a public street.

  344. The relevant facts, the legislative history of the PPEO, the relevant provisions of the PPEO, the Regulations made thereunder, the PPER, and the history of these proceedings are fully set out by Ribeiro PJ in paras 14-40 and 98-99 of his judgment and by Fok PJ in paras 171-193 and 198-219 in his judgment, and I gratefully adopt what they say.

  345. The issue which is raised by this appeal is difficult to resolve, as is apparent from the difference of opinion between the Chief Justice and Ribeiro PJ on the one hand, and Tang and Fok PJJ on the other. The difficulty is in my view attributable to a number of factors.

    • First, there is the imperfect drafting of the present version of the PPEO, which I think is partly caused by the draftsman making of successive substantial piecemeal amendments to legislation, without then fully considering the resulting legislation as a whole.

    • Secondly, and in fairness to those responsible for drafting the PPEO, the exercise of deciding how to define precisely what sort of arrangements should fall within the ambit of the PPEO is an inherently difficult exercise.

    • Thirdly, I suspect that it simply did not occur to those responsible for drafting the PPEO that entertainment of the sort which they had in mind would be provided, or at least exclusively provided, on land over which a public right of way existed.

    • Fourthly, the wider interpretation, as favoured by the appellant Commissioner of Police, appears to result in the PPEO extending to activities which many people would have expected to be outside its ambit, whereas the respondent’s narrower interpretation seems to mean that activities which one might have expected to be within its ambit are excluded from it.

  346. B. Statutory interpretation

  347. Having said that, it is of course necessary to interpret the PPEO in order to resolve the issue raised on the appeal. The issue is one of statutory interpretation, and I agree with Ribeiro PJ and Fok PJ that the statutory language must be interpreted in the light of its context and purpose, as laid down in the cases to which he refers in paras 48 and 194 of their respective judgments. However, as Fok PJ says in para 195, that should not be seen as a judicial licence to ignore or refuse to give effect to the words which the legislature has chosen to use: when construing an Ordinance, the court is an interpreter not a legislator. When considering what is sometimes referred to as a purposive approach, it is salutary to bear in mind what was said by Lord Millett NPJ in China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HFCFAR 342, para 36, quoted by Fok PJ at para 222 of his judgment.

  348. So far as the facts of the instant case are concerned, it is clear that what was involved constituted “entertainment”, that it was “presented” in a “place”, and that the presenters did not (for the reasons given by Fok PJ in paras 268-270 of his judgment) have control over who attended or saw the entertainment. Accordingly, the issue may, I suppose, be said to turn on the meaning and effect of a single word, namely “admitted”, in section 2 of the PPEO. As I have mentioned, the meaning of that word ultimately turns on its context. As Lord Hoffmann famously said, “No one has ever made an acontextual statement” - Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46, [2005] RPC 9, para 64. 

  349. In this case, the immediate documentary context of the word “admitted” is that it is in the definition in section 2 of the PPEO of “public entertainment”, namely “any entertainment .... to which the general public is admitted with or without payment”; and that expression is in turn incorporated in the definition in the same section of “place of public entertainment”, which is what must be kept or used in order for a licence to be required under section 4 of the PPEO, the section which the Commissioner contends is engaged in this case. Sections 2 and 4 must themselves be interpreted by reference to any other relevant provision of the PPEO.

  350. However, that is only the documentary context. One must also take wider matters into account as part of the context, namely the purpose of the PPEO, practicalities, common sense, the existing state of the law (including other Ordinances), any Explanatory Memorandum, and any authoritative statement to the Legislative Council. A number of cases suggest there are also certain canons of statutory construction, such as the principle that legislation which creates a criminal offence or interferes with fundamental rights should be narrowly construed, but such factors are often of limited value, as they frequently do no more than discourage a court from giving such legislation a wider meaning than that which it naturally bears.

  351. Bearing in mind the potentially many factors which fall to be taken into account when interpreting legislation, it is perhaps inevitable that the interpretation process involves what has been called an iterative process, checking the rival interpretations against the words themselves, and the documentary and wider contexts of the sort briefly summarised above.

  352. C. The meaning of the word “admitted” in its documentary context

  353. Starting with the centrally relevant words, I consider that, if the general public has the right to view entertainment because it is being presented in a street to which any member of the public has a right to be present, then it is not a natural use of words to describe the entertainment as being entertainment “to which the general public is admitted”; and that view is reinforced a little by the immediately following words “with or without payment”. I accept that the entertainment in a case such as this is presented to members of the public, because they can view it as of right given that they are entitled to be where the entertainment is presented. However, the statutory words carry with them the notion of members of the public being permitted by someone, with a legal right to refuse entry, to enjoy the presentation of the entertainment. To refer to a person being “admitted” to somewhere or something at which he or she already has an established legal right to be present would involve an unusual use of the word “admitted”. In particular, to refer to members of the public being admitted onto a public highway is not a natural use of the word “admitted”.

  354. I understand from paras 166-167 of the judgment of Tang PJ that this view is consistent with, and indeed receives even greater support from, the Chinese language version of the PPEO. However, although the appeal was argued purely by reference to the English language version, it is right to bear in mind that the Chinese version has equal status - see section 10B of the General Clauses Ordinance (Cap 1), quoted by Ribeiro PJ at para 82 of his judgment. The fact that the Chinese version post-dates, and was presumably based on, the English version does not, in my view, prevent section 10B from applying: otherwise, one would be implying an exception into a statutory provision, a course which is only to be taken when it can be shown to be necessary in order for the provision to be workable or to make sense.

  355. The application of what I regard as the natural interpretation in the present case appears to me to be reinforced by the fact that the entertainment with which we are concerned took place in a public street, where, not only does the public have a right to be present, but it must be questionable whether the presenters had a right to erect a substantial stage or to present an entertainment which may well have impeded the use of the street for a public pedestrian right of way - see the discussion in Yeung May Wan v HKSAR (2005) 8 HKCFAR 137, paras 41-44, as to what activities can lawfully be carried on in a public highway.

  356. Nonetheless, I accept that it is not a positive abuse of language to describe the general public as being “admitted” onto a public highway by the general law. However, I do not consider such a passive meaning to be a normal use of the word “admitted”, particularly in the context of the definition of “public entertainment” in section 2. Indeed, the natural, active, reading of “admitted” in the context of sections 2 and 4 is that it is the presenter of the entertainment who is envisaged as being responsible for, or controlling, admission - a view which gets some support from section 10(f), which entitles any licence to “specify the maximum number of persons which may be admitted [to the relevant] place”.

  357. I also agree with the point made by Fok PJ at his para 252, namely that the contention that “admitted” should be given what I regard as its natural meaning is supported by the fact that the words “for admission” were included after the words “with or without payment” in the definition of “public entertainment” from 1919 until they were removed in 1995. The inclusion of the words “for admission”, as I see it, emphasised that the concept of admission was being used in its active sense rather than its passive sense. I do not consider that it would be realistic to attribute to the draftsman in 1995 an intention to change the whole notion of what was meant by admission. It is a very unlikely notion, bearing in mind the other amendments made in 1995 and the absence of any reference to such intention in any contemporaneous document, coupled with the fact that the words “for admission” were retained even after the widening of the definition of “place of public entertainment” in 1980.

  358. D. Admission to public entertainment or to the place of public entertainment

  359. As Ribeiro PJ points out in paras 54-57 of his judgment, the concept of admission in section 2 of the PPEO is tied to the definition of “public entertainment”, as opposed to “place of public entertainment”. However, I do not consider that this undermines the force of the linguistic argument which I have so far been considering, for the reasons given in the next four paragraphs. Indeed, if the point is significant, it seems to me that, if anything, it tends to reinforce the view I have expressed, for the reason given in para 289 below.

  360. The first reason why it makes no difference that the admission referred to in section 2 is to public entertainment, at least in a conventional case such as the present, where there is a live musical, dramatic, or similar staged performance, is that there is no real practical distinction between admission to the place of entertainment and admission to the entertainment. In that sense, admission to entertainment differs from admission to membership of a club or to the Bar or to residency status, which are the examples given by Ribeiro PJ in his paras 78-80 (all of which I believe involve the use of the word “admitted” in its natural sense). One can be admitted to all three of these institutions without having to be in a physical place, but that is not true where one is concerned with admission to entertainment. Accordingly, in agreement with Fok PJ, as a matter of ordinary language, at least to my mind, admission to the entertainment still naturally conveys the notion of being permitted entry to a place where the person who is admitted can enjoy the entertainment.

  361. Secondly, the definition of “place of public entertainment” incorporates the definition of “public entertainment”. Accordingly, in agreement with Fok PJ at para 228 of his judgment, it appears to me that the requirement that the general public be admitted is integral to the place where the entertainment is “presented”, particularly as the PPEO is concerned with licensing places of public entertainment, not public entertainment. I note in this connection that the only place in the PPEO where “public entertainment” is referred to without being immediately preceded by the words “place[s] of”, apart from the definition of “public entertainment” in section 2 itself, is in section 10(2)(b), which refers to a “place .... used for public entertainment” (and anyway section 10 was only added in 1995). Accordingly, examination of the terms of the PPEO shows that, as is apparent from its title, its whole thrust is directed to places of public entertainment rather than to public entertainment.

  362. Thirdly, if the appropriate test was whether the public was admitted to the entertainment rather than the place of entertainment, the problems which Fok PJ identifies in para 230 of his judgment would arise. 

  363. Fourthly, quite apart from the point made in para 283 above, it appears to me that it is in any event unsafe to rely on the fact that the reference to admission is in the definition of “public entertainment”, rather than “place of public entertainment”, in the light of the legislative history of the PPEO as explained by Fok PJ at paras 208-220 of his judgment. The definition of “public entertainment” has remained effectively unchanged since 1919, and it was only in 1951 that “place of public entertainment” was defined: until then the requirement for a licence was limited to entertainments in a “building or matshed”. Accordingly, it seems tolerably clear that the PPEO initially equated admission to the place with admission to the entertainment. Of course, amendments to one statutory provision can have a consequential effect on another statutory provision, but one must be cautious of imputing to the legislature an intention to change the meaning of an existing provision, when it has not amended its wording. 

  364. If, however, the distinction between entry to the place and entry to the entertainment is significant, then, if anything, I think it tends rather to reinforce the view that, if the entertainment is presented on a public highway, it is not a natural use of the word to say that the public are thereby “admitted” to it. If one is talking about admission to the place, the public have a right to be there as a matter of public law: to that extent, albeit employing a non-natural use of the word, they can be said to be “admitted” to the place as a matter of public law. But public law does not give the public the right to see the entertainment: it is merely because they have the right to be on the street that the public happen to be able to see the entertainment. That seems to render the notion of “admission” even less appropriate as a matter of language on the Commissioner’s construction. It is true that it is the presenter of the entertainment who chooses to present it to the public in this way, but that point in no way assists the Commissioner’s argument, because it still does not involve giving a natural meaning to the word “admitted”.

  365. E. Conclusion on the natural meaning in the documentary context

  366. I do not consider that much further assistance can be obtained from the wording of the PPEO. There is some, but pretty limited, force in the respondent’s reliance on section 6(1), which forbids the sale of tickets to a place of public entertainment “in any public thoroughfare”. It suggests, albeit faintly and by negative implication, that the PPEO was not concerned with entertainment on such land. There is also a little force in the respondent’s reliance on section 7(1)(g), which enables regulations to “provide for .... entry and inspection for the purposes of securing compliance with this Ordinance .... of a place of public entertainment”, and section 10(f), which is quoted above. Those provisions tend to support the notion that the PPEO was concerned with places over which the licensee could control entry, but they are not expressed so as to apply of necessity to every place which is licensed, and section 10 was, as mentioned above, added relatively recently.

  367. It appears to me, therefore, that the natural meaning of the PPEO, at least if one confines oneself to the provisions of that Ordinance, is that it does not extend to entertainment such as that presented in the instant case, because the entertainment was entirely presented on land on which the general public had every right to be present. Nonetheless, the notion that one could describe the general public as being “admitted with or without payment” to entertainment which is “presented” in a location to which the general public has free access as of right in any event, does not appear to me to be fanciful, as Ribeiro PJ demonstrates in para 75 of his judgment. However, particularly where the entertainment is being presented in a public street, I remain of the view that such a description does not, in my opinion, involve a natural use of language, particularly in the context of the PPEO.

  368. F. The objection to the natural meaning

  369. Casting one’s eyes more widely, the obvious objection to what I consider to be the natural interpretation in the light of the terms and history of the PPEO is that it means that the public safety concerns which gave rise to, and justify, the Ordinance, would not apply to entertainments which are presented on the public highway, or (probably) on any land to which the public has access as of right. The importance of those concerns is apparent from the terms of the PPEO, and it is, I think, such concerns which ultimately, and understandably, persuade the Chief Justice and Ribeiro PJ to reach the conclusion that the PPEO should be construed more widely, as the Commissioner contends, so as to apply to entertainments held in such locations.

  370. There is obvious attraction in that view, but in the end I do not regard it as sufficiently strong to displace the natural meaning of the definitions in section 2 of the PPEO. I do not regard the consequences of the narrower construction advanced by the respondent as especially surprising, particularly in the light of the following factors, all of which therefore tend to reinforce the conclusion that what I regard as the natural meaning is the correct meaning.

  371. G. Further reasons for adopting the natural meaning

  372. First, just as it may be said that the narrower interpretation results in the exclusion of certain performances which one might expect to be included, so would the wider interpretation lead to certain performances which one would expect to be excluded. Buskers are an obvious example: I agree with Ribeiro PJ at his para 123 that it would be “incongruous” if they were within the reach of the PPEO. To counter this problem, it is suggested that, as buskers need a permit under subsection (15) of section 4 of the Summary Offences Ordinance (Cap 228), the SOO, they would be impliedly excluded from the PPEO. I cannot agree. First, section 4 of the SOO and the PPEO are concerned with different things, the one “nuisance in public places” and the other with public safety. Secondly, as section 4(15) of the SOO refers to “play[ing] a musical instrument in any public street or road”, it must extend to a pop group or even an orchestra, and it cannot reasonably be imagined that, if the Commissioner is right, it was intended to exclude them from the ambit of the PPEO.

  373. Secondly, if the PPEO had the wider effect for which the Commissioner contends, its reach would be rather uncertain, which is plainly undesirable, particularly for an Ordinance which has potential criminal sanctions. Thus, if a group of people gather in a public place for relaxation on a Sunday and decide to dance for fun or to have some informal and impromptu beauty pageant, for the amusement of anyone who passed, it is hard to see why the PPEO would not apply, as the public would, whether the organizers wanted it or not, be “admitted” on this wider interpretation. One way round that suggested by the Commissioner was that, if the performers did not intend the public to be “admitted”, the PPEO would not apply, but that seems to me to be wrong in principle and a recipe for uncertainty. Similarly, if a laser display on a building could be seen in many different public places, either side of the harbour, it would be very hard to identify the “place” of entertainment, if the wider interpretation was right. In answer, it was suggested that if the “place” was very large or uncertain, the PPEO would not apply, but, once again, that seems to me to be both arbitrary and unpredictable.

  374. It was also suggested that, if activities such as those mentioned in the preceding two paragraphs were within the PPEO, then the solution is that they could (and maybe impliedly should) be exempted under section 3A of the PPEO. I do not consider that that is a particularly satisfactory answer in principle or in practice. In principle, although it has some force, I am not attracted to the notion that a concern that a particular meaning leads to an Ordinance applying to functions which one would expect to be excluded from its ambit, can be disposed of by invoking an unfettered administrative power in the Ordinance to exempt certain functions from its ambit. In any event, in practical terms, section 3A grants a power to exempt specified locations, not specified functions, from the PPEO, and therefore I do not consider that it would really help the Commissioner’s case anyway.

  375. Thirdly, the PPEO does not apply to an entertainment, however many people may be present and whatever safety implications there may be, if the entertainment is not open to the public. Accordingly, the draftsman of the PPEO appreciated, indeed must have intended, that its reach would not extend to an entertainment to which the public was not admitted, even though the number of invitees might be very considerable. Thus, it cannot be said that the purpose of the PPEO was to ensure that all entertainments were to be subject to its provisions; it must have been realized that many very large gatherings, which could give rise to safety concerns, would be excluded from its ambit. In my view, that tends to undermine the notion that a court should strive to give the PPEO a wide, rather than a narrow, reach.

  376. Fourthly, where entertainment is presented at a location to which the public has access as of right, there are Ordinances which enable the authorities to exercise a significant degree of control, which would not, at least normally, be available to them if the entertainment was presented in a private location, ie one to which the presenter or someone else could control admission. I have in mind in particular sections 6(1) and 17(2) of the Public Order Ordinance (Cap 245), the POO, which bestow on the police a degree of control over “public gatherings” (which are defined in section 2(1)), and section 6(2) which also gives them a degree of control over many entertainments in public places. The nature and degree of control under the POO would, I accept, normally be significantly less effective than that accorded by the PPEO for a number of reasons, but the appropriate degree and nature of the control over public activities in different circumstances seems to me to be a matter for the legislature rather than the judiciary.

  377. Fifthly, if one looks at the history of the PPEO more broadly than I have done so far, it seems to me rather to confirm the narrower reading which I favour. As already mentioned, until 1951, the Ordinance only applied to buildings and matsheds, and accordingly it seems clear that the entertainments to which the general public was envisaged by the draftsman as being into a building or matshed over which the occupier of the structure or the presenter of the entertainment could control admission. When the reach of the Ordinance was extended in 1951, restricted in 1970 by going more or less back to where it had been before 1951, and then extended again in 1980, the definition of “entertainment” remained unchanged. As I have already indicated, it seems unlikely that, in the absence of any amendment to the definition and in the absence of any relevant suggestion in any Explanatory Memorandum or in any statement to the Legislative Council, the draftsman intended that the concept of “admitted” in the definition of “public entertainment” should change its meaning.

  378. Sixthly, as pointed out by Fok PJ in argument, a relatively narrow meaning is supported by the reference to “vessel” in para (b) of the definition of “place of entertainment”. If the entertainment consisted of music being played on a ship in the harbour, and the public, while not permitted to be on the ship, could enjoy the music from the shore, it seems to me that the ship alone would be the relevant “place”. In addition, as Fok PJ explains at para 228 of his judgment, the reference to vessel also supports the notion that the draftsman had in mind admission to the place of entertainment.

  379. Seventhly, it would not in any event be surprising if the draftsman of the PPEO had taken the view that there was no need to cater for entertainments which were presented in an area where the public had a right of way. Particularly before 1999, there must have been considerable doubt whether a live show, whether drama, music, dance, reading or anything else, could be presented in a public thoroughfare. The decision of the House of Lords in Director of Public Prosecutions v Jones [1999] 2 AC 240 is of some significance in this connection. The English Divisional Court decided in 1997 that a public demonstration on a public highway was a public nuisance because it was an impermissible use of the highway. In the House of Lords, two of the five Law Lords agreed, although the majority held that such a use was permissible provided that it was both reasonable and not inconsistent with the ability of the public to pass and repass - see at [1999] 2 AC 257E, 281A-H, and 286H-287A). It is also worth noting that all three Law Lords in the majority appear to have thought that they were developing the law - see per Lord Irvine of Lairg LC at 254H, referring to “the law today”, Lord Clyde at 279G, referring to the fact that “the law may develop and change”, and Lord Hutton at 286H, who considered that the existing law was thereby being “extended”.

  380. It therefore seems quite likely that those responsible for drafting the PPEO believed that no relevant public entertainment could be lawfully carried on and presented on land over which the general public had a right of way, as it would not have been a permissible use of such land, as indeed the Divisional Court and two Law Lords apparently would have thought. That real possibility appears to me to reinforce the point that a court should not strain the natural meaning of the definition in question to extend it to such entertainment, particularly bearing in mind that the court’s role is to interpret and not to legislate.

  381. Eighthly, there is the fact that the PPEO (i) interferes with the fundamental right of freedom of expression, and (ii) creates (albeit contingently, namely if a place of public entertainment is kept or used without a licence) a criminal offence. In the present context, I do not find these factors of much weight, except, as I have mentioned, to provide support for the view that we should not give the words at issue a wide meaning if that is not their natural meaning, particularly if it leads to uncertainty.

  382. I.   Four ancillary points

  383. Finally, I should mention that there was some discussion about whether, if (as I have concluded) the respondent’s case is correct,

    1. the PPEO could never apply to a public highway or other public location,

    2. if it could so apply, the “place” concerned would have to be cordoned off in order for the PPEO to apply,

    3. the PPEO would apply if the presenter cordons off or otherwise encloses the land even if he had no right to do so, and

    4. a presenter of entertainment which was not within the ambit of the PPEO could, as the respondent suggested, voluntarily apply for a licence thereby bringing the entertainment within the reach of the PPEO.

    I do not consider that it is necessary to address any of those points in order to dispose of this appeal, but, as some time was devoted to them, I will briefly express a view. 

  384. As to point (i), this case is concerned with a performance on land over which there is an unrestricted right of way. Unless someone has authority under an Ordinance to permit presenters of entertainment both to use land subject to a public right of way for entertainment and to control entry thereto, I would have thought that the PPEO could never apply to any land subject to a normal public right of way. Different considerations may apply to land which can be publicly enjoyed, and different considerations probably would apply but in respect of such land in a case where a lawful permission has been given to presenters of entertainment to cordon off or enclose the land for the purpose of entertainment so that it can properly be said that the public is admitted to the land in question, and therefore to the entertainment.

  385. So far as point (ii) is concerned, in practice it may well be that, where the entertainment is presented in a publicly accessible space, the PPEO could not apply unless that space was cordoned off or enclosed in some other way, because otherwise there would be no means of controlling admission. However, the public location may be a peninsula connected to the land by a narrow causeway, or a cul-de-sac with a narrow entrance, in which case no cordoning off or the like would be required. In the end, it is a question of fact whether the presenter of the entertainment, or indeed some other person, has sufficient control over who comes to view the entertainment for it to be said that the general public are admitted thereto.

  386. Turning to point (iii), I agree with Ribeiro PJ when he says at paras 69-70 of his judgment that, where the land is public highway, an entertainment would not become a public entertainment if it was cordoned off or otherwise enclosed by a presenter of entertainment. Although the presenter might in practice control admission to the land, he would be committing an offence, and, anyway, the fact that the land was cordoned off would not alter the fact that the public had the right to be there. Greater difficulties might arise where the land was subject to more limited public rights, but it is unnecessary and inappropriate to consider that on this appeal.

  387. As to point (iv), the respondent’s contention is unarguable: either an entertainment is within the ambit of the PPEO or it is not. I agree with Ribeiro PJ’s comments in para 71 of his judgment.

  388. J. Conclusion

  389. For these reasons, and for the reasons given by Fok PJ, I would dismiss the appeal of the Commissioner of Police. Indeed, were it not for the fact that I am disagreeing with the Chief Justice and Ribeiro PJ, from whose opinions I differ with considerable diffidence, I would have limited myself simply to agreeing with the judgment of Fok PJ. However, as it is, like Tang PJ, I consider it appropriate to express my reasons in my own words, which may represent a slight difference of emphasis or approach from that of Fok PJ, but that should not detract from the fact that I agree with his judgment.

  390. If I had been minded to allow the appeal, it would have been necessary to consider the constitutional issue identified by Ribeiro PJ in para 136 of his judgment. In that connection, it is right to record that I entirely agree with his analysis in paras 137-144 of his judgment.

  391. Chief Justice Ma

  392. By a majority, Mr Justice Ribeiro PJ and I dissenting, the appeal is dismissed. As to costs, we direct that the parties be at liberty to serve on other party and lodge with the Registrar of the Court within 14 days of the handing down of this judgment any written submissions, with liberty to serve and lodge any written submissions in reply within 14 days thereafter.


[1] For the relevant text, see para 3 below.

[2] Mr Hectar Pun, with him Mr Newman Lam and Mr Albert Wong. The Appellant was represented by Mr Johnny Mok SC and Mr Abraham Chan.

[3] Such as Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, at paras 75-77; Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351, at para 15.

[4] See Vallejos at para 76.

[5] Such as s 10 of the Police Force Ordinance, Cap 232; s 17 of the Public Order Ordinance Cap 245 (in relation to public gatherings).

[6] Section 2.

[7] See para 3 above.

[8] See para 55 below.

[9] Such as s 10(2)(f) of the PPEO whereby the licensing authority can specify the maximum number of persons who may be admitted as regards an entertainment.

[10] As stated in s 2, “entertainment” means the events, activities and other things set out in Schedule 1 of the Ordinance.

[11] See para 3 above.

[12] Set out in para 82 below.

[13] See HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at para 63 (per Sir Anthony Mason NPJ); China Field Ltd v Appeal Tribunal (Buildings) (No. 2) (2009) 12 HKCFAR 342 at para 36 (per Lord Millett NPJ).

[14] Cap 172.

[15] HCAL 102/2011 (16 July 2012).

[16] Cheung CJHC, Stock VP and Barma JA, CACV 244/2012 (18 September 2013).

[17] Lesbian, gay, bisexual, transgender and intersex.

[18] The area was regularly designated a pedestrian precinct between 4.00 pm and midnight on weekdays and between noon and midnight on weekends and public holidays.

[19] Agreed Facts §§17 and 18.

[20] Cap 245. Conditions stipulated included a requirement to notify the Police if the organizers became aware of any drastic increase or decrease in the number of participants over or under the 250 people stated in the notice and arranging for 4 or 5 marshals and one first aid attendant to assist at the meeting.

[21] Designated by the Secretary for Home Affairs under PPEO section 3B.

[22] Director of Fire Services, Director of Buildings, Commissioner of Transport, Director of Highways, Director of Environmental Protection and Commissioner of Police.

[23] Which includes “an exhibition of dancing” (Schedule 1, para 2).

[24] Section 4(2) makes contravention an offence punishable by a fine and imprisonment for 6 months, and by a further fine of $2000 for every day during which the offence continues.

[25] Judgment §§46, 70-72.

[26] Judgment §§73-77.

[27] Court of Appeal §15.

[28] Judgment §§50, 52.

[29] Judgment §§59-69.

[30] Article 17: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

[31] Judgment §§81-85.

[32] Judgment §§86-95.

[33] Court of Appeal §28.

[34] Court of Appeal §§29-30.

[35] Court of Appeal §34.

[36] Ibid.

[37] Court of Appeal §35.

[38] Ibid.

[39] Court of Appeal §36.

[40] Court of Appeal §40.

[41] Court of Appeal §53.

[42] Ibid.

[43] Court of Appeal §55.

[44] With Mr Newman Lam and Mr Albert N B Wong.

[45] Court of Appeal §22.

[46] “A sporting exhibition or contest” being a category of “entertainment”: Schedule 1, para 1(f).

[47] FACC Nos 4, 5 and 6 of 2013 (5 June 2014) at §37.

[48] (2006) 9 HKCFAR 574 at 606.

[49] (2009) 12 HKCFAR 568 at §12.

[50] Other matters which may legitimately be taken as indicating the statutory purpose were also noted in Cheung Kwun Yin at §14, including the Explanatory Memorandum of a bill and a statement made by a responsible official of the government in relation to the Bill in the Legislative Council.

[51] See also section 7(c) which confers power to make regulations to provide for “the location of a place of public entertainment generally or on or in any place, building, erection or structure and the circumstances, conditions and restrictions in or subject to which such location may be permitted.”

[52] Cap 376. 

[53] Court of Appeal §34. At §40, Cheung CJHC added: “In reality, where a public street is involved, unless the place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.”

[54] Ibid.

[55] Court of Appeal §35.

[56] Whether or not with the help of cordoning off or enclosing the site.

[57] Court of Appeal §35.

[58] The Chinese definition of “public entertainment” (公眾娛樂) being “指本條例所指的讓公眾入場的任何娛樂,而不論是否收取入場費”.

[59] Appearing with Mr Abraham Chan for the Commissioner.

[60] Cap 1.

[61] Court of Appeal §22, quoting from the Affidavit of Tse Wing Yee, Winnie, Principal Assistant Secretary for Home Affairs dated 6 March 2012, §31.

[62] PPEO section 7(e) and (f).

[63] PPEO section 7(c).

[64] PPEO section 7(d).

[65] Or such lesser period as the licensing authority may allow.

[66] PPER regulation 162(1).

[67] PPER regulation 162(2).

[68] PPER regulation 169; made pursuant to PPEO section 7(g).

[69] Or such lesser period as the licensing authority may allow.

[70] PPER regulation 162(3).

[71] PPEO section 10(1).

[72] PPER regulation 171.

[73] As envisaged by PPEO section 10(2)(e).

[74] Court of Appeal §37.

[75] Court of Appeal §39.

[76] “‘Public Entertainment’ means any entertainment, as above defined, to which the general public are admitted with or without payment for admission.”

[77] “‘Place of public entertainment’ means any place on which there is any erection or structure, any premises or building whether temporary or permanent or any water-borne craft or other place in or at which a public entertainment takes place whether on one occasion or more....” (Italics supplied)

[78] Judgment §9.

[79] Judgment §11.

[80] Judgment §14.

[81] Court of Appeal §25.

[82] Court of Appeal §26.

[83] (1907) 5 CLR 132.

[84] An Imperial statute applicable to the State of Victoria: per Higgins J at 166.

[85] At 137.

[86] At 138.

[87] At 138-139.

[88] At 142.

[89] At 138.

[90] “From and after the passing of this present Act any house, room or other place which shall be opened or used for publick entertainment or amusement, or for publickly debating on any subject whatsoever, upon any part of the Lord’s Day, called Sunday, and to which persons shall be admitted by payment of money or by tickets sold for money, shall be deemed a disorderly house or place; and the keeper of such house, room or place shall forfeit the sum of two hundred pounds for every day that such house, room or place shall be opened or used as aforesaid on the Lord’s Day, to such person as will sue for the same, and be otherwise punishable as the law directs in cases of disorderly houses; and the person managing or conducting such entertainment or amusement on the Lord’s Day, or acting as master of the ceremonies there, or as moderator, president or chairman of any such meeting for publick debate on the Lord’s Day, shall likewise for every such offence forfeit the sum of one hundred pounds to such person as will sue for the same; and every doorkeeper, servant or other person who shall collect or receive money or tickets from persons assembling at such house, room, or place on the Lord’s Day, or who shall deliver out tickets for admitting persons to such house, room or place on the Lord’s Day, shall also forfeit the sum of fifty pounds to such person as will sue for the same.”

[91] By a common informer’s action.

[92] Court of Appeal §39.

[93] Section 10 relevantly provides: (1) A licence for the purposes of this Ordinance shall be in such terms as the licensing authority by which it is granted determines and .... such licence shall be subject to such conditions (if any) as are specified in the licence.” (2) Without affecting the generality of subsection (1), terms or conditions referred to in that subsection may – (f) specify the maximum number of persons which may be admitted as regards entertainments taking place in the place to which the licence relates ....”

[94] Court of Appeal §40.

[95] PPER regulation 171.

[96] (1996) 95 LGR 359.

[97] Court of Appeal §§41-42.

[98] Ex p McDonald (unreported, Lexis Transcript CO/2683/93, 14 December 1994).

[99] With whom Sir Ralph Gibson and Nourse LJ agreed.

[100] At 365. An additional reason given by his Lordship was that many persons might busk at an attractive spot in Leicester Square every day and the Act did not envisage several persons being licensed during one day to operate in one place.

[101] Schedule 1 paragraph 1(a).

[102] Cap 228.

[103] (2006) 9 HKCFAR 574 at §63.

[104] Places of Public Entertainment (Exemption) Order, Cap 172, para 2.

[105] PPER regulation 178.

[106] PPEO section 10(3).

[107] R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 at §33; cited in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §71.

[108] Article 27: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

[109] Giving constitutional effect to the International Covenant on Civil and Political Rights as implemented by the Hong Kong Bill of Rights Ordinance (Cap 383).

[110] Article 16(2): “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

[111] Article 17: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

[112] Discussed in the context of the freedom of assembly in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §§33-38.

[113] Falling within the permitted restrictions under BOR Article 17.

[114] Cap 232.

[115] POO section 2.

[116] Defined as “any procession in, to or from a public place”: section 2.

[117] POO sections 7 and 8.

[118] POO sections 13 and 13A.

[119] POO section 8(4).

[120] POO section 13A(4).

[121] Set out in Section G.4 above.

[122] POO section 2.

[123] Where 21 persons died and many were injured from the crush of severe overcrowding in New Year’s Eve celebrations in a network of narrow, sloping streets in an entertainment area. See the Final Report of the Inquiry by Mr Justice Bokhary dated 23 February 1993. As pointed out in the affidavit of Ms Tse Wing Yee Winnie dated 6 March 2012 (§§28 and 33), some of the PPEO’s 1995 amendments, including the addition of the present section 10 conferring power to impose conditions, were made to give effect to recommendations made by that Inquiry.

[124]In HKSAR v Li Yiu-kee (ESS 43427/2010, unreported), in the run-up to 4 June 2010, 2 sculptures, the Goddess of Democracy and a statue commemorating 4 June 1989 were placed at the Times Square. They were seized by the police and the person responsible prosecuted under PPEO, because the exhibition of sculptures came within the definition of entertainment and there was no licence under PPEO. The person was convicted and fined $2000. The hearing of his appeal has been held over to await our decision. We are not here concerned with that appeal and I express no view on the correctness or otherwise of that decision, but it illustrates the implication of Mr Mok’s submission.

[125] Para 123.

[126] Para 126.

[127] Para 298.

[128] Para 229.

[129] s 10B(1) and (2) Interpretation and General Clauses Ordinance Cap 1.

[130] Under articles 27 and 39 of the Basic Law, articles 16(2) and 17 of the Hong Kong Bill of Rights and articles 19 and 21 of the International Covenant on Civil and Political Rights

[131] In HCAL 102/2011

[132] CFI Judgment dated 16 July 2012

[133] Cheung CJHC, Stock VP and Barma JA

[134] CACV 244/2012, Reasons for Judgment, 18 September 2003; reported in [2013] 4 HKLRD 384

[135] This provides: “Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine at level 4 [i.e. $25,000] and imprisonment for 6 months, and to a further fine of $2,000 for every day during which the offence has continued.”

[136] CFI Judgment §§46, 70-77

[137] CA Judgment §15

[138] Case for the Respondent §10

[139] CA Judgment §§28, 34-36

[140] CA Judgment §40

[141] Bennion on Statutory Interpretation (6th Ed.), section 271 (pp.749-750)

[142] Bennion on Statutory Interpretation (6th Ed.), sections 276 (pp.761-762) and 277 (pp.762-763)

[143] Under section 3B, the Secretary for Home Affairs has authorised the Director of Food and Environmental Hygiene as the relevant licensing authority to issue or cancel licences and exercise other functions relating to licensing matters.

[144] i.e. “any .... other place in or at which a public entertainment takes place ....”

[145] CFI Judgment §§39, 42 and 44

[146] CA Judgment §22

[147] (2009) 12 HKCFAR 342 at §36

[148] Powell v The Kempton Park Racecourse Company Limited [1899] AC 143 at 194 per Lord James of Hereford

[149] Appearing with Mr Abraham Chan

[150] It is an interpretative presumption that the court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament; the more unreasonable the result, the less likely it is that Parliament intended it: Bennion on Statutory Interpretation (6th Ed.), section 312 (pp. 869-870).

[151] In particular, on the Commissioner’s case as to what constitutes being “admitted” to an entertainment (as to which see below).

[152] PPEO, section 10(2)(f), which provides that the licence may: “specify the maximum number of persons which may be admitted as regards entertainments taking place in the place to which the licence relates and any such term or condition may specify such a maximum as regards entertainments in general or specify 2 or more such maxima as regards specified entertainments of different classes or descriptions.” (Underlining added)

[153] PPEO, section 6(1): “No person shall sell, or offer or exhibit or have in his possession for sale, or solicit the purchase of, any ticket or voucher authorizing or purporting to authorize admission to any place of public entertainment licensed under this Ordinance or any place with respect to which duty on payments for admission is payable under the Entertainments Tax Ordinance – ....”. (Underlining added)

[154] Shorter Oxford English Dictionary (5th Ed.) p.29

[155] (1907) 5 CLR 132

[156] (1996) 95 LGR 359

[157] CA Judgment §§32-33

[158] R v Bow Street Magistrates’ Court, ex p MacDonald, Lexis transcript, CO/2683/93, 14 December 1994

[159] CFI Judgment §§56-58

[160] The spelling of the busker’s name in the title of the first instance decision (MacDonald) was different to that used in the Court of Appeal decision (McDonald) and neither party was aware of the Court of Appeal decision.

[161] CA Judgment §41

[162] CA Judgment §39

[163] Under PPEO section 10(3), the licensing authority may cancel, waive or vary any conditions subject to which a licence has been granted.

[164] CA Judgment §40

[165] This qualification remained until the definition of “public entertainment” was amended in 1995 when the types of entertainment covered by the PPEO was expanded to those listed in the Schedule (now Schedule 1). There is nothing to suggest that its removal was intended to change the meaning of “admitted” from an active into a passive sense.

[166] Section 4(15) provides that: “Any person who without lawful authority or excuse – .... plays any musical instrument in any public street or road save under and in accordance with the conditions of any such general or special permit as the Commissioner of Police in his absolute discretion may issue; .... shall be liable to a fine of $500 or to imprisonment for 3 months.”

[167] The display is said to be the “World’s Largest Permanent Light and Sound Show” in which “coloured lights, laser beams and searchlights perform in an unforgettable all-round spectacle synchronised to music and narration that celebrates the energy, spirit and diversity of Hong Kong”: see http://www.discoverhongkong.com/eng/see-do/highlight-attractions/harbour-view/a-symphony-of-lights.jsp

[168] Places of Public Entertainment (Exemption) Order (Cap.172D), section 2

[169] This provides that:

The Secretary for Home Affairs may .... exempt places of public entertainment which are of a specified class or description from –

(a)

this Ordinance or particular provisions of this Ordinance specified in the order;

(b)

regulations under this Ordinance which are so specified or particular provisions of such regulations being provisions which are so specified.

[170] The focus of the PPEO is on the places where public entertainments are presented or carried on and not the public entertainments themselves and there is no question of the legislative scheme being intended to have any influence or control over the content of any entertainment. Nevertheless, the licence requirement itself is a restriction on the rights in question.

[171] Appearing with Mr Newman Lam and Mr Albert N.B. Wong

[172] Case for the Respondent, §5(2)

[173] E.g. by reason of the physical characteristics of the public street or by the use of “bouncers” to exclude persons from entry

[174] CFI Judgment §31

[175] Sections 4 and 4A

[176] Section 10

[177] Sections 9, 11(2) and 17(2)


Representations

Mr Johnny Mok SC and Mr Abraham Chan, instructed by the Department of Justice, for the Appellant.

Mr Hectar Pun, Mr Newman Lam and Mr Albert N.B. Wong, instructed by Vidler & Co., assigned by the Director of Legal Aid, for the Respondent.


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