4. Imposition of conditions by the Commissioner of Police

4. Imposition of conditions by the Commissioner of Police

Under the Public Order Ordinance, all public meetings not prohibited and public processions not objected to must meet the following statutory conditions:

• the organiser of the procession shall be present throughout the procession;
• good order and public safety is maintained; and
• the control of any amplification device to be surrendered to a police officer if it causes a noise that would not be tolerated by a reasonable person.

The Commissioner of Police may not prohibit a public meeting or object to a public procession if the concerns about national security, public safety, public order or protection of the rights and freedom of others may be addressed by imposition of conditions.

Any conditions imposed must be given in writing and be reasonably necessary to address the concern of national security or public safety, public order or the protection of the rights and freedoms of others. The Commissioner of Police must provide reasons why the conditions imposed are necessary.

“Reasonably necessary” means (i) the conditions pursue a legitimate aim of protecting national security, public safety, public order, or the rights and freedoms of others; (ii) the conditions imposed are rationally connected with pursuing those legitimate aims; (iii) the conditions imposed must be no more than necessary for achieving that purpose; and (iv) the conditions imposed must strike a reasonable balance between the societal benefits of the encroachment of freedom of assembly, procession and demonstration, and the inroads made into these constitutionally protected rights. The pursuit of the societal interest should not result in an unacceptably harsh burden on the individual.

However, where the Commissioner of Police prohibits the holding of a notified public meeting for reasons of national security, public safety, public order or the protection of the rights and freedom of others, the Commissioner is merely required to consider whether the specified interests can be met by appropriate conditions, without requiring him to take the initiative to devise and propose conditions. It is primarily the organisers’ responsibility to put forward satisfactory arrangements to justify the holding of mass public assembly.  That would involve identifying realistic measures and persuade the Commissioner of Police that they had the ability to enforce those measures effectively. In other words, the Commissioner does not have a duty to proactively to come up with or suggest conditions that would ensure the meeting to take place. All he is required to do it to give genuine and reasonable consideration to any appropriate conditions, especially those suggested by the organisers, by assessing their workability and likely effectiveness. If the Commissioner of Police gives genuine consideration to the imposition of conditions but reasonably decides that they cannot be achieved, he can prohibit the assembly.  (HKSAR v. Chow Hang Tung [2024] HKCFA 2)