B. Positive obligations on the Government
In Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, the Court of Final Appeal pointed out that the right of peaceful assembly involves a positive duty on the part of the government to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully, such as to minimise any disruption to traffic and inconvenience caused to the general public.
In Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797, the Court of First Instance further held that the government should try to ensure that demonstrators must be able to proceed without fear of physical violence by opponents since such a fear would have a deterrent effect. If the Government fails to do so, the demonstrators may apply for judicial review to challenge the relevant decision or the lack of it by the Government. If the demonstrators are injured, they may also hold the police liable in negligence and claim damages for the injury if that injury was a reasonably foreseeable consequence of the police’s actions: Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.
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