11. Public nuisance

11. Public nuisance

A public nuisance is a common law offence. It is committed by doing an act not warranted by law, or omitting to discharge a legal duty, and the effect of such act or omission was to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise of rights common to everyone. The offence of public nuisance covers a wide and diverse range of activities, such as obstructing public highways or public places and roads. The maximum penalty is imprisonment for 7 years and a fine. (section 101I(1), Criminal Procedure Ordinance (Cap. 221))

In acting or omitting to act, the defendant knew, or ought to have known the consequence of what he did or omitted to do.

It is necessary for the prosecution to prove that the public, opr a class of the public, would be obstructed in the exercise of rights common to everyone, for example, the use of public carriageways, and that the suffering of common injury by members of the public by interference with rights enjoyed by them as a class of the public.

Where a case concerns citizens’ exercising of their right of free speech, right of assembly and right of demonstration, the court will consider whether the demonstrators’ conduct impinged unreasonably on the rights of others and whether the demonstration involves a reasonable use of the highway or public places.

The reasonableness test is essentially a question of fact and degree depending on all the circumstances, including the extent and duration of the obstruction, the time and place where the obstruction occurs, as well as the purpose for which the obstruction is done.

Where the obstruction in question results from a peaceful demonstration the court should recognize citizen’s constitutional rights to peaceful demonstration and give it substantial weight in the balancing exercise. What is reasonable must not be so narrowly defined as to devalue, or unduly impair the ability to exercise, the constitutional right.

The right to express views extends to the manner in which the protestors wish to express their views as well as the location(s) where they wish to do so, such as on the pavements or plazas outside government buildings or embassies.