2. Disorder in public places (Section 17B Public Order Ordinance)

2. Disorder in public places (Section 17B Public Order Ordinance)

There are 2 offences under section 17B of the Public Order Ordinance:

• Disorderly conduct for the purpose of preventing the transaction of the business of any public gathering (section 17B(1) Public Order Ordinance); and
• Disorderly conduct, or using, distributing, or displaying any threatening, abusive or insulting conduct with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused (section 17B(2) Public Order Ordinance).

Disorderly conduct to prevent the transaction of business is liable to a fine of $5,000 and imprisonment of 12 months.

“Disorderly, intimidating, insulting or provocative manner”

What amounts to “disorderly, intimidating, insulting or provocative manner” is a matter of common sense and ordinary meaning of these words. It depends on the time, place and circumstances of the conduct in question.

“Disorderly conduct” has been interpreted as “unruly or offensive behaviour”, “rough or aggressive behaviour”, or “acting in a way which disrupts public order or is against morality”. It does not need to involve any violence or cause serious disruption of public order.

“Preventing the transaction of business” in section 17B(1) of the Public Order Ordinance requires that the conduct has made it impossible in practical terms to hold or continue with the gathering.  It would cover situations where the conduct involved would interrupt the intended transaction of the business to an extent beyond what others can be expected to tolerate in a democratic society.  The transaction of business would be substantially impaired instead of being briefly interrupted. However, this offence is made out if the disorderly conduct was done with the intention to prevent the public gathering from happening or continuing.

Noisy or disorderly conduct, using, distributing, or displaying writing containing threatening, abusive or insulting words with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused under section 17B(2) of the Public Order Ordinance is liable to a fine of $5,000 and imprisonment of 12 months.

The purpose of this offence is to prevent a person from instigating public disorder involving others. It would exclude situations where the conduct is not likely to produce such violence.

“With intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused” requires that the conduct is either done with the intention to provoke others to breach the peace or the conduct is such that others will likely react to that conduct with a beach of the peace.

“Breach of the peace”

A person commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which threatens immediate danger of injury or damage to property in the presence of the targeted person or the owner of that property. (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [93])

Conduct which was peaceful in itself might, if persistently pursued, provoke others to violence. If a violent response could be considered the natural consequence of such persistent conduct, the person who pursued such conduct could be regarded as having committed a breach of the peace.

A breach of the peace on its own is not a criminal offence but the police can exercise the power of arrest when a breach of the peace occurs and require that the person breaching the peace to be subject to a bind-over order to keep the peace.

“Whereby a breach of the peace is likely to be caused”

This offence focuses on the cause and effect of the conduct involved. Even if the person who acted disorderly has breached the peace would not amount to this offence. The disorderly conduct or the use of threatening, abusive, or insulting words must either intended to cause, or there is a real risk that it would result in, imminent unlawful injury or damage to property. (HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837)

The party who might resort to violence as a result of the disorderly conduct etc. need not be the person provoked or a by-stander, it could be someone in the provoker’s group.