FREEDOM OF ASSEMBLY, PROCESSION AND DEMONSTRATION

I. Freedom of Assembly, Procession and Demonstration

A. Nature, extent and limitations

Freedom of assembly, procession and demonstration is guaranteed under Article 27 of the Basic Law. Article 17 of the Hong Kong Bill of Rights also recognises the right of peaceful assembly. Freedom of demonstration is well recognised by the Court of Final Appeal as a constitutional right that is closely associated with the freedom of speech and at the heart of Hong Kong’s system. A generous interpretation to the freedom to demonstrate should be given to guarantee this constitutional right even when the view expressed may be found to be disagreeable, or even offensive, to others or may be critical of persons in authority. (Yeung May Wan & Others and HKSAR (2005) 8 HKCFAR 137)

Yet, the freedom of assembly, procession and demonstration is not absolute. Restrictions on it can be placed if (1) they are prescribed by law and (2) are necessary to pursue a legitimate aim in a democratic society, namely (i) in the interests of national security or public safety, (ii) what is necessary for the protection of the general welfare or for the interests of the collectively as a whole, (iii) protection of public health or morals, or (iv) the protection of the rights and freedoms of others.

The right of peaceful assembly and the right to freedom of expression stopped, so far as physical or geographical limits were concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter. (HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371)

As for any “public open space” (as designated by the relevant Government lease) in a private building, lawful and peaceful demonstrations may be staged as long as it is one that the public could reasonably be expected to tolerate, provided that there is no obstruction of ingress to and egress from the building and of pedestrian or vehicular traffic. However, in respect of a narrow and often busy public walkway such as the one along Queen’s Road Central near the steps to the upper ground floor, taking into account the public’s interest, tents, canopies and other temporary structures may not be able to be erected there. (Turbo Top Ltd v. Lee Cheuk Yan and Others [2013] 3 HKLRD 41)

Conducts of the public within the Legislative Council premises are regulated by the Administrative Instructions for Regulating Admittance and Conduct of Persons (Cap. 382A). Section 11 of the Administrative Instructions provides that “Persons entering or within the precincts of the Chamber shall behave in an orderly manner ...”. Under section 12(1), which the Court of Final Appeal has ruled to be constitutional, “No person shall, in a ... public gallery, display any sign, message or banner.” (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, HKSAR v Cheung Kwai Choi [2018] HKCFI 2243)

As for the use of East Wing Forecourt of the Central Government Offices (calling it “Civic Square” is a misnomer), the Director of Administration introduced a permission scheme under which the Forecourt was only open to the public on Sundays and public holidays from 10am to 6:30pm for holding public meetings and processions upon application to the Director for approval, irrespective of the manner of the intended meeting or procession or number of persons involved. This scheme was constitutional and the designated public activity area situated just outside the CGO and Tamar Park as no less effective as a demonstration locality compared with the Forecourt. (Cheung Tak Wing v. Director of Administration [2020] 1 HKLRD 906) 

“Restrictions”

A restriction on the rights to freedom of expression and assembly (article 27 Basic Law, articles 16-17 Hong Kong Bill of Rights) may be declared unconstitutional if it is:

1. not prescribed by law
2. tainted by illegality
3. not proportionate

“Prescribed by law”

A restriction is prescribed by law if it is (Cheung Tak Wing v. Director of Administration [2020] 1 HKLRD 906 at [47] – [50]):

1. Imposed with proper legal authority;
2. Accessible; and
3. Formulated with sufficient precision, clarity and safeguards to protect individual against abuse by way of arbitrary interference of his rights.

“Illegality”

A restriction could be tainted with illegality by reason of error of fact or error of law or both.

“Proportionality”

The proportionality between the restriction and the said constitutional rights can be analysed by adopting a 4-step test (Cheung Tak Wing v. Director of Administration [2020] 1 HKLRD 906 [102]):

1. Whether the restriction pursues a legitimate aim which falls within one of the permitted categories in articles 16-17 of Hong Kong Bill of Rights;
2. Whether it is rationally connected with accomplishing that aim;
3. Whether the restriction is no more than reasonably necessary for accomplishing that purpose; and
4. Whether a reasonable balance has been struck between the societal benefits of the encroaching measure on the one hand and the inroads made into the guaranteed right on the other.

The applicable standard is “no more than necessary” rather than “manifestly without reasonable foundation”.

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.

II. Public Order Ordinance (Cap. 245)

A. Public meetings, processions and gatherings

The Public Order Ordinance (Cap. 245) regulates public meetings and public processions. A public meeting means any gathering organised for discussion of matters of interest to the general public, which is held in a public place, i.e. a place where public have access to, no matter payment is required or not. However, it does not include social, recreational, cultural, academic, educational, religious or charitable gatherings, or those for the purpose of a funeral.

A public procession means a procession organised for a common purpose, which takes place in, to or from a public place.

A public meeting may take place only if (i) the Commissioner of Police is notified of the intention to hold the meeting and (ii) the meeting is not prohibited by the Commissioner of Police.

A public procession may take place only if (i) the Commissioner of Police is notified of the intention to hold the procession and (ii) the procession is not objected to or deemed to be not objected to by the Commissioner of Police.

A public gathering means a public meeting, a public procession and any other meeting, gathering or assembly of 10 or more persons in any public place.

B. Regulation of public meetings and public processions

1. Notification of public meetings

A notice of intention to hold a public meeting must be given in writing to the Commissioner of Police at least one week (i.e. no later than 11 a.m. on the same day of the week in the preceding week) before any public meeting is held. But the Commissioner of Police may accept a shorter notice if he is reasonably satisfied that an earlier notice could not be given.

The notice should include (1) the name, address and telephone number of the organiser, (2) the purpose of the meeting, (3) the date, location, time of commencement and duration of the meeting, and (4) an estimation of the number of people expected to attend the meeting.

In practice, upon receipt of the notice of intention to hold a public meeting, the police will write to enquire the details of the public meeting, such as:

• the nature of the organiser;

   

• the experience of the organiser to hold public meetings in the past;

   

• whether there would be co-organisers and their nature, experience of holding public meetings and roles in the proposed public meeting;

   

• the number of event marshals, their roles, identification marks (such as designated T-shirts) and the method to communicate with them;

   

• whether the press have been informed, and if so, the media reporting arrangement;

   

• whether amplifiers, banners and other demonstration materials would be used in the meeting and their size and number;

   

• whether there would be first aid and beverage supply stations;

   

• the theme or themes of the meeting;

   

• the method to estimate the number of people expected to attend the meeting;

   

• whether fundraising activities would take place, and if so, whether applications have been made to the relevant authorities;

   

• as regards the proposed venues, whether bookings have been made with the relevant authorities (such as the Leisure and Cultural Services Department) if required;

   

• any special arrangements under inclement weather conditions;

   

• whether the organiser has bought insurance to cover accidents during the meeting.

   

The organiser and the police may meet several times or correspond in writing for several rounds to confirm the details of the proposed meeting. The police may raise specific concerns which the organisers need to address in relation to issues of public order, public safety and the encroachment on rights and freedoms of others which the proposed meeting may bring about, before a Notice of No Objection will be issued.

The requirement of giving a written notice to the police for a public meeting does not apply to (1) a meeting of less than 50 people, (2) a meeting in private premises of less than 500 people and (3) a meeting in any school if organised by and with the consent of an accredited society of an educational establishment.

2. Notification of public processions

A notice of intention to hold a public procession must be given in writing to the Commissioner of Police at least one week (i.e. no later than 11 a.m. on the same day of the week in the preceding week) before any public procession is held. But the Commissioner of Police may accept a shorter notice if he is reasonably satisfied that an earlier notice could not be given.

A notice of the intention to hold a public procession held solely for the purposes of a funeral at which the body is present must be given in writing at least 24 hours before the forming of the procession.

The notice should include (1) the name, address and telephone number of the organiser and the connected organisation, (2) the purpose and subject-matter of the procession, (3) the date, precise route, time of commencement and duration of the procession, (4) the location, time of commencement and duration of any meeting to be held in conjunction with the procession, and (5) an estimation of the number of people expected to attend the procession.

In practice, upon receipt of the notice of intention to hold a public meeting, the police will write to enquire the details of the public procession, such as:

• the nature of the organiser;
• the experience of the organiser to hold public processions in the past;
• whether there would be co-organisers and their nature, experience of holding public processions and roles in the proposed public procession;
• the number of event marshals, their roles, identification marks (such as designated T-shirts) and the method to communicate with them;
• whether the press have been informed, and if so, the media reporting arrangement;
• whether amplifiers, banners and other demonstration materials would be used in the meeting and their size and number;
• whether there would be first aid and beverage supply stations;
• the theme or themes of the procession;
• the method to estimate the number of people expected to attend the procession;
• whether fundraising activities would take place, and if so, whether applications have been made to the relevant authorities;
• as regards the proposed route, whether relevant authorities (such as the Transport Department or the Highways Department) have been informed and coordination arrangements made;
• any special arrangements under inclement weather conditions;
• whether the organiser has bought insurance to cover accidents during the meeting.

The organiser and the police may meet several times or correspond in writing for several rounds to confirm the details of the proposed meeting. The police may raise specific concerns which the organisers need to address in relation to issues of public order, public safety and the encroachment on rights and freedoms of others which the proposed procession may bring about, before a Notice of No Objection will be issued.

A notice of intention to hold a public procession is not required if the public procession consists of less than 30 people, does not take place on a public highway or thoroughfare, or in a public park.

3. Right of Commissioner of Police to prohibit public meetings and object to public processions

Upon receiving a notice of intention to hold a public meeting or a public procession, the Commissioner of Police may issue a Notice of Prohibition against the holding of a public meeting or a Notice of Objection against the holding of a public procession.

The Commissioner of Police may (1) prohibit a public meeting of 50 or more people, or (2) object to a public procession of 30 or more people, being held if he considers that it is necessary in the interests of national security, or public safety, public order or the protection of the rights and freedoms of others.

If a notice of intention to hold a public meeting or a public procession is given to the Commissioner of Police at least one week before the intended date, the Commissioner of Police may not issue a notice of prohibition or a notice of objection later than 48 hours before the commencement of the notified meeting or procession.

If a notice of intention to hold a public meeting or a public procession is given to the Commissioner of Police 72 hours or more before the holding of the public meeting or procession and accepted by him, the Commissioner of Police may not issue a notice of objection later than 24 hours before the commencement of the notified meeting or procession.

If a notice of intention to hold a public procession is given to the Commissioner of Police less than 72 hours before the holding of the public procession and accepted by him, the Commissioner of Police may not issue a notice of prohibition or a notice of objection later than the notified commencement time of the procession.

The Commissioner of Police may prohibit a public meeting or object to a public procession on the grounds of national security or public safety, public order or the protection of the rights and freedoms of others.

If the Commissioner of Police does not object to a public procession being held, he shall issue a notice of no objection at least 48 hours or 24 hours before the holding of the public procession as the case may be, or before the commencement of the notified procession.  If the Commission of Police does not issue a notice of no objection within the time required by the Public Order Ordinance, he is taken to have issued a notice of no objection for the public procession.

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)

5. Appeal mechanism

An organiser of public meetings or public processions may appeal to an independent Appeal Board on Public Meetings and Processions against the decision of the Commissioner of Police (1) to prohibit a public meeting, (2) to object to a public procession or (3) to impose conditions on the holding of a public meeting or public procession.

The Appeal Board consists of three members selected in rotation from a panel of 15 members and is chaired by a retired judge, which can be convened at short notice. While there is no time limit to lodge an appeal, it should be lodged as soon as possible so that a Notice of No Objection can be issued following a successful appeal and in time for the intended public meeting or procession.The Appeal Board is required to act expeditiously so as to ensure that an appeal is not frustrated by the decision being delayed until after the proposed date of public meeting or procession.

The Chairman of the Appeal Board determines the procedure and practice of an appeal, which are normally informal in nature. In the hearing of an appeal, the appellant and the Commissioner of Police shall be entitled to be heard either in person or through legal representatives. The Board would often encourage dialogues between the appellant and the police in pursuit of a mutual agreement.

The Appeal Board may, after hearing an appeal, confirm, reverse or vary the prohibition, objection or condition appealed against, and the determination of an appeal board by the Board shall be final. Any further challenge to the Appeal Board’s decision will be by way of judicial review.

6. General powers of the Commissioner of Police on controlling the conduct of public gatherings

The Commissioner of Police may give orders to control and direct the conduct of all public gatherings at any public place, and specify the route and time of passage of any public procession, if he considers it necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.

If the Commissioner of Police reasonably considers it to be necessary to the prevent an imminent threats to the interests of national security or public safety, public order or the protection of the rights and freedoms of others may also give orders to control and direct the extent to which music may be played, or which music or human speech or any other sound may be amplified, broadcast and relayed in or directed towards a public place.

For public meetings of less than 50 people and public processions of less than 30 people, of which prior notification needs not be served to the Commissioner of Police, the Commissioner may still exercise his general power to control meetings, processions and gatherings.

7. Police powers over meetings, processions and gatherings

The extent and exercise of police powers over meetings, processions and gathering depend on the rank of police officers exercising the power.

Commissioner of Police

If the Commissioner of Police 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, he may, in such manner as he thinks fit, control and direct the conduct of all public gatherings, specify the route by which, and the time at which, any public procession may pass, control and direct the extent to which music may be played, or to which music or human speech or any other sound may be amplified, broadcast, relayed, or otherwise reproduced by artificial means in public places or towards public places.

Police Inspector or above

A police inspector (or above) may:

i) prohibit the display at a public gathering of any flag, banner or other emblem if there is a reasonable belief by the police inspector (or above) that the display of any flag, banner or emblem is likely to cause or lead to a breach of the peace.   Breach of the prohibition may attract a fine at $5,000 and imprisonment for 2 years.

ii) prevent the holding of, stop, disperse or vary the route of any public gathering whether or not notification to the Commissioner of Police was given.

iii) stop or disperse (1) any public gathering exclusively for religious purpose, or (2) any meeting not in a public place, or (3) any type of gathering at any time, if reasonably believes a breach of the peace may result.

iv) by exhibiting notices, erecting physical barriers, oral announcements, or use reasonably necessary force to bar any person’s, or any class of person’s, access to any public place in order to prevent any un-notified public meeting or public procession from taking place.

Police officer of any rank

Where a police inspector has issued a prohibition to display at a public gathering of any flag, banner or other emblem, any police officer may seize and detain any flag, banner or emblem. 

Any police officer may if reasonably necessary enter any premises or places and stop and board any vehicle, tramcar, train or vessel, and use such force as may be necessary for these purposes.

Any police officer may give any order as he considers necessary to prevent the holding of, stop, disperse, or vary the route of any public gathering, and may use reasonable force and enter any premises or place which the meeting takes place. The police would normally communicate such orders to the public by raising a flag or announcements through loudhailers or speakers.

Any police officer may prevent the holding of, stop, or disperse any public meeting or public processions (1) not having been notified to, or (2) contravening of any conditions imposed by, the Commissioner of Police.

C. Questions and Answers

1. Does the Public Order Ordinance regulate private meetings and processions?

Yes, even if the holding of the private meetings and processions does not require prior notification to the police (see answer to Question 2), other provisions of the Ordinance may also apply to these private meetings and processions, such as the offences of disorderly conduct under section 17B, unlawful assembly under section 18, and riot under section 19.

2. Do organisers need to obtain notices of no objection if meetings or processions are to be held in private premises such as private roads?

Organisers do not need to obtain notices of no objection if:

(1) it is a meeting of not more than 500 people;

(2) it is a meeting in any school registered or provisionally registered or exempted under the Education Ordinance (Cap. 279), or in any educational establishment established by any Ordinance, and the meeting is organised or approved by an accredited society of that school and with the consent of the management of such school;

(3) it is a procession not on a public highway, thoroughfare, or in a public park.

Otherwise organisers are still required to give prior notification to the Commissioner of Police.

3. What do organisers need to do to organize public meetings and processions?

Assuming the public meeting and/or procession is one that requires prior notification to the Commissioner of Police, before the proposed meeting or procession, the organisers must inform the police of his intention to hold the same one week in advance. The police may enquire in writing or by way of meetings with the organisers details of the proposed public meeting or procession.

In general, the organisers should be familiar with the locales of the proposed public meeting and the routes of the public procession. The organisers should estimate the number of participants and determine the venues to use for the public meeting. The organiser should book such venues with relevant authorities. For the public procession, the organisers should consider whether highways need to be closed to facilitate the procession; if so, they should discuss with the Transport Department and Highways Department about road closure and bus route diversion plans.

The organisers should mobilise a team of marshals sufficient to maintain public order and safety during the public meeting and procession. First aid stations may also need to be set up in the meeting location and along the procession route. The organisers shall nominate to the police a contact person, who must be present throughout the procession.

4. Can the police issue a notice of prohibition or a notice of objection merely because the public meeting or procession will likely cause inconvenience to the pubic?

No. As a general principle, any demonstration in a public place inevitably causes a certain level of disruption to ordinary life, including disruption of traffic, and it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings. Commissioner of Police may only prohibit the holding of any public meeting or procession where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.

5. If the police have already issued a notice of prohibition regarding a public meeting or a notice of objection regarding a public procession, people still participate in the public meeting or procession. Do participants commit any offences?

A public meeting or procession held in contravention of a notice of prohibition issued by the police is an unauthorized assembly. Every person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in or forms or continues to form part of any such unauthorized assembly commits an offence.

6. Can participants perform entertainment during public meetings and processions?

There is no additional step to take if the entertainment is performed in a public pedestrian precinct and the participants have no control over the admission of persons to the public entertainment and the place where it was being presented and, as a corollary, a right of exclusion from that place. If the participants have such control or right of exclusion, they will need to apply for a temporary licence under the Places of Public Entertainment Ordinance (Cap. 172) before performing entertainment.

7. If a religious group intends to hold a public procession exclusively for religious purpose, does it need to file a notice of intention to hold a public procession?

If anyone wants to hold only a gathering or assembly of persons convened or organized exclusively for social, recreational, cultural, academic, educational, religious or charitable purposes, or as a conference or seminar bona fide intended for the discussion of topics of a social, recreational, cultural, academic, educational, religious, charitable, professional, business or commercial character, then he does not need to file a notice of intention. However, if he intends to hold a public procession for these purposes, he is still required to inform the Commissioner of Police.

8. The organiser does not file a notice of intention to hold a public meeting or procession because it estimates that the number of participants will be less than 50 (in the case of the public meeting) or 30 (in the case of the public procession). However, it turns out that the number of participants is more than 50 (in the case of the public meeting) or 30 (in the case of the public procession). Does the organiser commit any offences under the Public Order Ordinance? Should the organiser stop the public meeting or procession? If so, when should the organiser stop the public meeting or procession?

If an organiser did not file a notice of intention to hold a public meeting or procession and that public meeting or procession turns out to have more than the prescribed limit of participants, the public meeting or procession will become an unauthorised assembly upon the number of participants exceeding the prescribed limit. Every person who holds, convenes, organizes, forms or collects, or assists or is concerned in the holding, convening, organizing, forming or collecting of, any public meeting or public procession after the same has become an unauthorized assembly commits an offence. The Organiser should stop the public meeting or procession in good time before the turnout reaches the prescribed limit.

9. The services of public transport are suspended during public meetings and processions. Do organisers and participants need to compensate for loss of revenues to public transport companies?

No. There is no legal basis for the public transport companies to demand compensation.

10. Are the police allowed under the Public Order Ordinance to use force greater than objectively necessary and reasonable to enforce the Ordinance?

No. Although section 53 of the Public Order Ordinance provides for the indemnity of any person acting in good faith under the provisions of the Ordinance for any civil and criminal liability, that indemnity is subject to the restriction on the use of force as stated in section 46, which stipulates that the degree of force which may be used shall not be greater than is reasonably necessary for the lawful purpose. Otherwise, the police officers who use excessive force may be criminally and civilly liable.

III. Related offences

A. Public Order Offences

1. Unauthorized assembly (Section 17A Public Order Ordinance)

An unauthorised assembly is:

(1) Any public meeting or public procession that takes place without first having notified the Commissioner of Police, or when having been prohibited to or objected by the Commissioner of the Police;

(2) A gathering or 3 or more persons taking part or forming part of a public gathering refuse or neglect to obey any order by the police given to:

• control and direct the conduct of all public gatherings at any public place, or specifying the route and time of passage of any public procession in the interests of national security or public safety, public order or the protection of the rights and freedoms of others;
• control and direct the extent to which music may be played, or which music or human speech or any other sound may be amplified, broadcast and relayed in or directed towards a public place in order to prevent an imminent threat to the interests of national security or public safety, public order or the protection of the rights and freedoms of others;
• prevent the holding of, stop, disperse or vary the route of any public gathering whether or not notification to the Commissioner of Police was given; or
• Stop or disperse any public gathering exclusively for religious purpose, or any meeting not in a public place, or any type of gathering at any time, if reasonably believes a breach of the peace may result.

The following conduct amount to an offence under section 17A(3) of the Public Order Ordinance and is liable to imprisonment of 5 years on indictment, or a fine of $5,000 and imprisonment of 3 years on summary conviction:

• Knowingly takes or continues to take part in an unauthorised assembly without lawful authority or reasonable excuse;
• Holding, convening, organising, forming or collecting, or assisting in the holding etc. of an unauthorised assembly;

Any organiser or person acting in his place who without reasonable excuse fails to comply with any direction given to him by a police officer to ensure compliance to statutory conditions or conditions imposed by the Commission of Police is liable to a fine of $5,000 and imprisonment of 12 months.

In a prosecution for inciting others to knowingly take part in an unauthorised assembly (and by extension knowingly take part in an unauthorised assembly), an accused may raise as a defence by challenging the legality of a prohibition order issued by the Commissioner of Police if the accused was not involved in the process leading to the Commissioner’s decision to prohibit the meeting.  However, the same defence is not available if an accused was the particular individual against whom the prohibition was directed. (HKSAR v. Chow Hang Tung [2024] HKCFA 2)

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.

3. Unlawful assembly (Section 18 Public Order Ordinance)

An unlawful assembly is when 3 or more people assemble together and behave in a disorderly, intimidating, insulting or provocative manner that causes a reasonable fear that a breach of the peace may result of that behaviour. The fear of a breach of the peace may be the intention of the people behaving in that manner, or it may be a likely reaction of other people in the nearby the people behaving in that manner. A person convicted with taking part in an unlawful assembly is liable to imprisonment of 5 years on indictment, or a fine of $5,000 and imprisonment of 3 years on summary conviction.

The Court of Appeal has laid down the sentencing principles of the offence of unlawful assembly: If the case is of a relatively minor nature, such as when the unlawful assembly was unpremeditated, small in scale, involving very little violence, and not causing any bodily harm or damage to property, the court may give proportionally more weight to such factors as the personal circumstances of the offender, his motives or reasons for committing the offence and the sentencing factor of rehabilitation while proportionally less weight to the sentencing factor of deterrence; if the case is a serious one, such as when the unlawful assembly involving violence is large-scale or it involves serious violence, the court would give the two sentencing factors, namely punishment and deterrence, great weight and give very little weight or, in an extreme case, no weight to factors such as the personal circumstances of the offender, his motives or reasons for committing the offence and the sentencing factor of rehabilitation. (Secretary for Justice v Wong Chi Fung [2018] HKCFA 4, [123])

It does not matter whether the assembly started out as a lawful assembly. If 3 or more people in that assembly acted in a disorderly, intimidating, insulting, or provocative manner together and cause a reasonable fear that a breach of the peace may result, it will become an unlawful assembly.

“3 or more persons, assembled together”

This element reflects the ‘corporate nature’ of this offence. The unlawful assembly is made up of those who behave in the prohibited manner. Therefore, if there was only one person out of those who assembled together conducted himself in the prescribed manner, he could not be guilty of this offence.

Where a group of people assembled at a location and only three or more amongst them behave in the prohibited manner, it is they, not other members of their group who do not conduct themselves in such manner, who become an unlawful assembly.

There must be sufficient connection between the conducts of those who behave in the prescribed manner to justify having them considered together. Therefore, if 3 persons in a lawful assembly committed acts of the prescribed nature at different parts of the place of assembly for different purposes, sparking off different incidents, involving and affecting entirely different mix of persons, there would not sufficient nexus to turn these independent acts into an unlawful assembly. But “sufficient nexus” is only an “important factor” in considering whether those persons were acting together, and evidence of a common purpose is only “the best or one of the most important pieces of evidence” to prove that they were so acting together. A common “purpose” does not require a “common motive”, for example the common purpose to attack police officers qualifies as a “common purpose”.

“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.

“Fear”

The fear is not about fear as to anyone’s own safety or security. Instead, it is a reasonable fear that a breach of the peace will result. (HKSAR v Leung Kwok Wah [2012] 5 HKLRD 556)

“Taking part”

1. The offence under section 18 is a participatory offence and requires all involved offenders to be “assembled together” and “conduct themselves” in the prohibited manner. It is not enough for the defendant to have been engaging in the prohibited conduct alone. They must have acted as a part of the assembly with other participants. All participants who “took part” in the assembly will have committed the offence under section 18. (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [15]). “Taking part” is the offending act.

2. Taking part is a broad expression and is not confined to the prohibited acts set out in Public Order Ordinance section 18. Mere presence does not give rise to criminal liability. But a defendant also takes part in an unlawful assembly if they act in furtherance of such prohibited acts by, for instance, facilitating, assisting, or encouraging active participants of the same. A person who provides encouragement, whether by way of words, signs or actions, may face liability as an aider and abettor of active participants or as a principal offender under section 18. (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [109(d)])

3. That a person took part in an unlawful assembly or riot may be proven by way of inference. The following evidence can support an inference of “taking part”:
   1. Time and place of arrest
   2. Items found on the defendant (e.g. helmet, body armour, goggles, a respirator, a radio transceiver, plastic ties, laser pointers, weapons and materials to make weapons such as petrol bombs) (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [78]).

“Participatory intent”

1. It must be proved that the defendant had participatory intent. This means that he intended to take part in the unlawful assembly and engage in or act in furtherance of the prohibited conduct, and was aware of the related conduct of other participants at the time. Proof of such participatory intent may generally be inferred from conduct (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [48]).  There is no requirement for the prosecution to prove any extraneous common purpose.
    
2. There is no need for the Prosecution to prove that the defendants intended to mutually assist each other.

Joint enterprise

1. The basic form of joint enterprise doctrine is not applicable because the element of “taking part in” already covers joint liability. A defendant cannot be fixed with liability as a principal offender if that defendant was not present or acted as part of an assembly with the other assembled people. But he can be criminally liable as a counsellor, procurer, conspirator, or inciter.

2. Extended form of joint enterprise may be applicable to where there was proven foresight of a more serious crime committed in the course of an agreed plan of unlawful assembly or riot.  For example, if a participant of an unlawful assembly or riot is proven to have foreseen that the offence of wounding with intent to cause of inflict grievous bodily harm or murder may be committed, that participant may be found guilty of wounding with intent or murder even when that participant was not the party inflicting the grievous bodily harm or committing the murder (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302

“Mens Rea of the Likely limb”

It must be proved that the defendant and at least 2 other people intended to assemble and conduct themselves in the manner described. However, it is not necessary to prove that the defendant intended for reasonable fear to be a likely consequence of his conduct. Whether said fears were a likely result of the defendant’s conduct is to be determined objectively and independently of what the defendant intended. (HKSAR v. Leung Chung Hang Sixtus (2021) 24 HKCFAR 164)

4. Riot (Section 19 Public Order Ordinance)

A riot is an unlawful assembly where a breach of the peace in fact occurred. Anyone taking part in an unlawful assembly that turned riotous will be considered as taking part in a riot. A person convicted with taking part in a riot is liable to imprisonment of 10 years on indictment, or a fine of $5,000 and imprisonment of 5 years on summary conviction.

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.

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.

“Commits a breach of the peace”

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

As long as someone committed violent acts, such as throwing things at police officers, then regardless of whether anyone was injured or whether any property was damaged, he would have committed a breach of the peace.

“Takes part in a riot”

In relation to the conduct constituting “taking part in a riot”, there may be different manner and degrees, but the prosecution should prove that, after the unlawful assembly has turned into a riot, the defendant's conduct still possesses the necessary “corporate nature” or “common purpose”, and that the defendants’ conduct should be considered to constitute taking part in the riot (香港特別行政區訴楊家倫 (unrep., DCCC 875/2016, 3 April 2017))

It is not necessary for the defendant to take part in the preceding unlawful assembly to take part in a riot.  It is sufficient for him to join once the riot has fully formed. (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302, [20]).

A person may “take part” in a riot in the same way as he would take part in an unlawful assembly. Accordingly, the section on “taking part” and “mental element” in the article on “unlawful assemblies” is applicable here as well.

A person only takes part in a riot if he participated in the acts that breached the peace; such participation must be “some individual activity in furtherance of the riot” (香港特別行政區訴莫嘉濤  (unrep., DCCC 901/2016, 2 May 2018), [111]). For example, if the act turning an unlawful assembly into a riot is moving in a threatening manner, the defendant must have so moved in order to form the guilty conduct. If the acts turning an unlawful assembly into a riot are comprised of many different acts, such as moving, threatening, using violence and damaging property, the defendant must have participated in some of these acts. However, even if the defendant was simply present, if he supported and/or encouraged others to take part in a riot (i.e. committing acts that breach the peace), and intended to further the riot, then he also “takes part in a riot”.

The guilty intention of “taking part in a riot” is that the defendant must have an intention to take part in a riot, and recklessness is not a sufficient for this offence. However, the court rejected the defendants’ argument that, in order for someone to take part in a riot, he must not only possess a common purpose together with other rioters, but also intend to assist each other through violence. (香港特別行政區 訴 莫嘉濤 (unrep., DCCC 901/2016, 2 May 2018), [106]-[108])

“Taking part”

1. Taking part is a broad expression and is not confined to the conducts set out in Public Order Ordinance section 19. A defendant is “taking part” in the relevant riot if (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§ 14, 109(d)):
   1. The person commits a breach of peace under section 19
   2. The person acts in furtherance of such prohibited acts which includes acts of facilitating, assisting or encouraging those taking part in a riot 

2. Mere presence does not make a person guilty, however, it does not take a great deal of activity on the defendant’s part to move the case from “mere presence” to “facilitating, assisting or encouraging”. “If the accused, being present, provides encouragement by words, signs or actions, he or she may be held to be taking part and guilty as a principle or held to be an aider and abettor”. Similarly, those present to lend the courage of their presence to the active participants, or to assist, if necessary, can be found guilty of the offences (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§ 81-85, 109(e)).

3. If the defendant’s presence occurs in circumstances qualifying it as “encouragement” of the breach of the peace by others, then he or she can be found guilty of taking part in a riot without specific conduct (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at § 86).

4. In deciding whether a defendant was present at the scene, evidence regarding the geographical area affected, the conduct of and communications maintained among the participants and the duration of the disturbances should be considered as a whole (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at § 76).

5. The following evidence can support an inference of “taking part”:
   1. Time and place of arrest
   2. Items found on the defendant (e.g. helmet, body armour, goggles, a respirator, a radio transceiver, plastic ties, laser pointers, weapons and materials to make weapons such as petrol bombs) (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at § 78).

6. A realistic view should be taken of the duration of the riot. So long as 3 or more participants remain actively engaged in the criminal assembly (not necessarily including the person or persons whose breaches of peace transformed the unlawful assembly into a riot – they may have left), the riot remains in being as a matter of law. Latecomers, who joined a riot after its formation, may also be guilty of the offences (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§20, 77).

“Participatory Intent”

1. Taking part in a riot is participatory in nature. The defendant must have a participatory intent.

2. Participatory intent means intending to take part in the riot, being aware of the related conduct of other participants and intending, while assembled together with them, to engage in or act in furtherance of the prohibited conduct. Proof of such participatory intent may generally be inferred from conduct (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§22, 48, 109(c)).

3. The concept of “breach of peace” in section 19 includes, but is not confined to, situations which might give rise to provoked retaliation. In cases involving actual or threatened violence to property, the owner of such property need not be present for there to be a breach of peace (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302 at §§93, 109(i)).

Joint enterprise

1. The basic form of joint enterprise doctrine is not applicable because the element of “taking part in” already covers joint liability. A defendant cannot be fixed with liability as a principal offender if that defendant was not present or acted as part of an assembly with the other assembled people.  But he can be criminally liable as a counsellor, procurer, conspirator, or inciter.

2. Extended form of joint enterprise may be applicable to where there was proven foresight of a more serious crime committed in the course of an agreed plan of unlawful assembly or riot. For example, if a participant of an unlawful assembly or riot is proven to have foreseen that the offence of wounding with intent to cause of inflict grievous bodily harm or murder may be committed, that participant may be found guilty of wounding with intent or murder even when that participant was not the party inflicting the grievous bodily harm or committing the murder (HKSAR v Lo Kin Man (2021) 24 HKCFAR 302).

9. Obstruction of public places (Section 4A Summary Offences Ordinance)

Anyone who sets out or leaves anything which obstructs, inconveniences or endangers any person or vehicle in a public place shall be liable to a fine of $5,000 or to imprisonment for 3 months.

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.

10. Entering or remaining in precincts of Chamber of the Legislative Council (Section 20 Legislative Council (Powers and Privileges) Ordinance)

Any person who enters or attempts to enter the Legislative Council Chamber or its precincts in contravention of any of the Rules of Procedure, any resolution of the Council, or any Administrative Instructions issued by the President of the Legislative Council is liable to a fine of $2,000 and to imprisonment for 3 months.

The offence of entering or remaining in the precincts of the Legislative Council Chamber does not apply to members of the Legislative Council, anyone acting within the precincts of the Chamber under the orders of the Legislative Council President, and police officers on duty within the precincts of the Chamber.

“Chamber” of the Legislative Council includes the chamber where Legislative Council proceedings are being conducted, any galleries and places provided for the public and the media, and any lobbies, offices or precincts used exclusively in connection with the proceedings of the Legislative Council.

“Precincts of the Chamber” covers the entire building in which the Chamber is situated and any forecourt, yard, garden, enclosure, or open space adjoining or appertaining to that building and provided for the Legislative Council to use. This extended area is only applicable for the whole of any day the Legislative Council or its committee is sitting.

The President of the Legislative Council may regulate the admittance and conduct of the public (other than members or officers of the members of the Legislative Council) by way issuing administrative instructions. Contravening these Administrative Instructions would amount to an offence under section 20 of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382).

Offences in contravention of Administrative Instructions for Regulating Admittance and Conduct of Persons (Cap. 382A) include failing to behave in an orderly manner when entering or within the precincts of the Chamber, failing to comply with any direction given by any officer of the Council for the purposes of keeping order, and displaying any sign, message or banner, including on any item of clothing, in the press or public gallery.

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.

13. Criminal contempt of court

The common law has traditionally divided contempt of court into two categories – civil and criminal. In the simplest terms civil contempt is committed when an order of the court made in civil proceedings is disobeyed. More often than not its procedures are invoked by a party in whose favour an order has been made who wants to see it enforced.

Criminal contempt is applied to all other contempt, but more often than not those are contempt that somehow interfere with the administration of justice in a more general way, for example disrupting court proceedings, publishing materials that might influence the court, or insulting a judge.

Where an injunction order has been granted against occupiers of a public area (such as a section of highways) and those occupiers refuse to leave, criminal contempt would be committed if:

• those occupiers, knowing of the injunction order, continue to remain in the area with the intention to remain; and
• their conduct in remaining is inherently likely to prejudice or interfere with the due administration of justice, for example, when the bailiffs are about to execute or executing the injunction order in effecting the clearance and removal of obstacles.

Contempt is committed even if the occupiers did not, in fact, obstruct or interfere with those who are responsible for clearing up the obstacles.

Whether each of the respondents intentionally chose to remain and did remain at the area so as to amount to criminal contempt would be a matter of fact and degree in every instance for the court to decide.

The maximum penalty is imprisonment for 7 years and a fine.

B. Offences Involving Weapons & Prohibited Items

1. Prohibition of offensive weapons at public meetings and processions (Section 33 Public Order Ordinance)

Anyone who has with him any offensive weapon during any public meeting or public procession without lawful authority or reasonable excuse shall be guilty of possession of offence weapon in public place. A person convicted with possession of offence weapon in public place is liable to imprisonment of 3 years.

“Offensive weapon”

Offensive weapon means any article made, or adapted for use, or intended for causing injury to the person. Apart from traditional weapons such as knives, other items such as extendable batons and petrol bombs can also be caught by this offence.

Even where an item is not an offensive weapon by itself, it can become an offensive weapon by reason of the intention of the possessor to use it as an offensive weapon.

2. Possession of offensive weapon with intent (Section 17 Summary Offences Ordinance)

Anyone who has in his possession any wrist restraint or other instrument manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use for any unlawful purpose, is liable to a fine of $5,000 or to imprisonment for 2 years.

Offensive weapon means any article made, or adapted for use, or intended for causing injury to the person.

Even where an item is not an offensive weapon by itself, it can become an offensive weapon by reason of the intention of the possessor to use it as an offensive weapon.

The offence under this provision is not just targeted at offensive weapons but also handcuffs and other items used for restraining a person, and other items that can be used for unlawful purposes. Considering the specified items listed in this provision, e.g. crowbar, picklock etc., items that will assist in breaking into premises or vehicles will also likely be caught by this offence.

The meaning of this section vis-à-vis the type of offensive weapon should be interpreted narrowly. In stipulating ‘crowbars, picklocks skeleton keys’ and ‘other instruments fit for unlawful purposes’ in this section, the drafters of the section plainly specified a kind of instruments and envisaged offences limited to gaining unlawful access to premises, vehicles or other private property. An unrestricted construction of the section is contrary to this intention. Accordingly, 6-inch plastic cable ties fall outside the ambit of this section. (HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191).

“Intent to use the same for any unlawful purpose”

The words “with intent to use the same for any unlawful purposes” must be understood to refer to an intent to use the offending article or instrument in a manner reflecting the stated use or purpose under the section and not to any unrestricted unlawful purpose. Where the intended use does not reflect the stated use or purpose, prosecution under this section would not succeed (HKSAR v. Chan Chun Kit (2022) 25 HKCFAR 191, [84]).

3. Making or possession of explosives (Section 55 Crimes Ordinance)

Anyone who makes or knowingly has in his possession or custody or under his control, an explosive substance is liable to imprisonment for 14 years unless he can show that he has made it or possess it for a lawful object.

If it is proved that the person charged knows that he is in possession or custody of or has control over (other than premises) a thing containing an explosive substance, he is presumed to know that he is in possession of an explosive substance.

“Explosive substance” includes any materials for making any explosive substance, any equipment or part of equipment intended to be used, adapted for causing explosion.

Crimes Ordinance adopts a more expansive definition of “explosive substance” as it stands now can cover substances that “detonate” or “explode” in its ordinary sense (such as a pipe bomb), substances that produced a “pyrotechnic effect” (such as smoke bombs which produce intense heat and smoke), and need not be substances that could produce a practical effect by explosion (HKSAR v. Kwan Ka Hei (2020) 23 HKCFAR 229).

5. Using facial covering to prevent identification (Section 3 Prohibition on Face Covering Regulation)

Anyone who uses any facial covering that is likely to prevent identification while he is at an unlawful assembly, unauthorised assembly, or in a public meeting or public procession where a Notice of No Objection has been issued is liable to a maximum fine of $25,000 and imprisonment for 1 year.

“Facial covering” includes masks or any other article of any kind (including paint) that covers all or part of a person’s face.

It will be defence for this offence if it can be established that there is lawful authority or reasonable excuse for using a facial covering. A “reasonable excuse” would include the person wearing the facial covering was engaged in a profession or employment and the facial covering was worn for his physical safety while performing an act connection with his profession or employment; the facial covering was worn for religious reasons; or the facial covering was used for a pre-existing medical or health reason.

Regarding the constitutionality and proportionality of the Prohibition on Face Covering Regulation, the Court held that in the context of the degeneration of law and order, and the ever increasing violence and lawlessness commonly seen in 2019, the ban of facial coverings was regarded as a relatively minor incursion into the enjoyment of the freedom of assembly, procession and demonstration, the freedom of speech and expression, and the right to privacy guaranteed by the Bill of Rights Ordinance and the Basic Law. (Kwok Wing Hang v. Chief Executive in Council (2020) 23 HKCFAR 518)

6. Failure to remove facial covering (Section 5 Prohibition on Face Covering Regulation)

If a police officer reasonably believes that a person is wearing a facial covering in a public place to that is likely to prevent identification, the police may stop and require that person to remove the facial covering in order to verify the identity of that person.

If a person fails to remove facial covering when required to do so by a police officer, that police officer may remove the facial covering in order to verify the identity of that person.

Anyone who fails to remove facial covering when required to do so by a police officer is liable to a maximum fine of $10,000 and imprisonment for 6 months.

9. What are the differences between the offences of possession of offensive weapons at public meetings and processions (s.33 Public Order Ordinance) and possession of offensive weapon with intent (s.17 Summary Offences Ordinance)?

The scope of prohibited items under section 17 of the Summary Offences Ordinance is wider than that under section 33 of the Public Order Ordinance. Section 17 of the Summary Offences Ordinance also prohibits items that are strictly speaking not offensive weapons but instead items used to restrain another person (e.g. handcuffs), items that can be used to cause property damage (e.g. crowbar), and items that can be used to gain unlawful access (e.g. skeleton-key).

Both sections provide for the similar prohibition to carry offensive weapons in public, with section 17 of the Summary Offences Ordinance carrying a lesser sentence. However, it is within the discretion of the prosecutorial authority to choose which section under which a charge will be laid.

Also, the section 33 of the Public Order Ordinance offence is an excepted offence, which means the Courts are not allowed to pass a suspended sentence on a convicted defendant while the section 17 of the Summary Offences Ordinance is not an excepted offence.

C. Offences against Public Officers

1. Resisting or obstructing a public officer or other person lawfully engaged in a public duty (Section 23 Summary Offences Ordinance)

Anyone who resists or obstructs a public officer or other person lawfully engaged in the performance of any public duty is liable to a fine of $1,000 and to imprisonment for 6 months. It is necessary for the prosecution must prove that the public officer was lawfully apprehending a defendant. If the apprehension was not lawful, he was not in the execution of his duty.

2. Assaulting police officer in execution of duty (Section 63 Police Force Ordinance)

Under section 63 of the Police Force Ordinance, a person commits an offence and will be liable to a fine of $5,000 and to imprisonment for 6 months if he does the following acts.

• Assaulting or resisting any police officer in the execution of his duty;
• Refusing to assist any such officer in the execution of his duty when called upon to do so;
• By the giving false information with intent to defeat or delay the ends of justice, wilfully misleads or attempts to mislead any police officer.

If it cannot be shown that the assault or resistance is sustained whilst the officer is in execution of his duty, the charge cannot be made out. For example, where there is no evidence that the arrest of a suspect was lawful, he could not be charged for having assaulted a police officer in the execution of his duty. It has been established in England that where a police officer physically restrains a person, but does not at that time intend or purport to arrest him, then the officer commits an assault, even if an arrest would have been justified; accordingly, an assault by a defendant in such circumstances is not an assault committed on a police officer acting in the due exercise of his duty, but Hong Kong courts have not ruled on this issue yet.

An “assault” is an act, and not just a mere omission to act, by which a person intentionally or recklessly causes another to apprehend immediate and unlawful personal violence.

“Sentencing”

The Court of Appeal reiterated that the offence of assaulting a police officer is a serious one and that the sentencing court should have regard to the defendant’s acts and the circumstances surrounding the commission of the offence. The customary sentence is one of immediate imprisonment so as to reflect the need for public deterrence.  (Secretary for Justice v. LHY ([2021] HKCA 155, [20]-[24]).

3. Assaulting, resisting, obstructing a police officer (Section 36(b) Offences against the Person Ordinance)

Any person who assaults, resists, or wilfully obstructs a police officer in due execution of duty, or any person acting his aid is liable to imprisonment for 2 years.

It is not necessary for the prosecution to prove the knowledge of the accused that the person assaulted was a police officer or the officer was in the execution of his duty. (R v Forbes and Webb (1865) 10 Cox 362). However, if the defendant had a genuine belief either that the victim was not a police officer or in the existence of circumstances which would mean the officer was not acting in the course of duty, the general principle relating to mens rea and mistake of fact should apply and the defendant’s liability should be judged on the basis of that belief. For example, genuine and reasonable belief that the victim was a thug and not a police officer, would be highly material in judging the reasonableness of resistance exerted and the degree of force falling within the liberty or justification of self-defence. (Kenlin v Gardiner [1967] 2 QB 510)

“Assault” covers both actual physical contact and mere threats causing the target of such threat to fear that he will face immediate physical harm.

“Wilfully Obstructs”

What amounts to wilful obstruction depends on the circumstances including what the person had done and how it was done, what the police officer was doing, and the effect of what the person had done on what the police officer was doing.

The person accused of wilfully obstructing a police officer must be aware that the police officer is discharging his duties and deliberately does an act to obstruct the discharge of those duties.

It does not cover conduct that might cause mere inconvenience to the police officer or require him to expend trifling additional effort. But the conduct does not need to make the police officer’s work substantially more difficult.

Private citizens have a moral duty or social duty to assist police officers but there will be situations where co-operation is not readily forthcoming such as (i) exercising the right to silence, (ii) seeking clarification from the police officer as to what is the matter of concern or what is expected or required of him, (iii) reasoning with the police officer and trying to persuade the police officer that there was a mistake, (iv) protecting or advising a relative or close friend who is being questioned by the police officer, or (v) having other more urgent matters to attend to for the time being etc.

D. Offences against Property

1. Criminal damage (Section 60 Crimes Ordinance)

A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage it or being reckless as to whether it would be destroyed or damaged is liable to imprisonment for 10 years.

If a person destroys or damages any property, whether belonging to himself or another, intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged, and intending to endanger the life of another or being reckless as to whether the life of another would be thereby endangered is also guilty of this offence and is liable to imprisonment for life.

A charge under section 60(2) of the Crimes Ordinance is more serious than a charge under section 60(1) because the former has to be sentenced on the basis of endangering the life of another, while the latter only involves damage to property. Under section 60(2), the offence would become more serious if it alleges an intent to endanger life. (HKSAR v. Chong Yam Miu, Lucas [2020] HKDC 216)

It is necessary to prove that the danger to life results from the destruction of or damage to the property rather than simply proving that it resulted from the act which caused the destruction or damage.

“Damage” is very widely defined for the purposes of this offence. In addition to physical harm, it also covers any injury that impairs the value or usefulness of property. The damage may be temporary or permanent, and it does not have to be tangible. Examples of damage includes taking away a part of or disabling something so as to make it temporarily useless, applying water-soluble paint on a pavement, and smearing mud of the wall of a building.

3. Threats to destroy or damage property (Section 61 Crimes Ordinance)

If a person threatens to destroy or damage any property belonging to another person or a third person with the intention the person threatened would fear that the threat would be carried out, or threatens to destroy or damage his own property in a way which he knows is likely to endanger the life of another person or a third person, he is liable to imprisonment for 10 years.

4. Possessing anything with intent to destroy or damage property (Section 62 Crimes Ordinance)

If a person has anything in his custody or under his control and intends to have it used whether by himself or others (a) to destroy or damage any property belonging to some other person, or (b) to destroy or damage his own or the user’s property in a way which he knows is likely to endanger the life of some other person, he is liable to imprisonment for 10 years.

5. Forcible entry (Section 23 Public Order Ordinance)

If a person enters into any premises, whether or not he is entitled to enter the premises, in a violent manner, he is liable to a fine of $5,000 and imprisonment for 2 years.

This offence is committed whether or not the violence used consists in actual force applied to another person, or in threats, or in breaking open any building, or in collecting an unusual number of people.

If a person uses force to enter his own premises that are in his possession or in the custody of his servant of agent, he will not be liable for this offence.

5. Affray

An affray is a common law offence involving a violent disturbance of the peace, by way of unlawful fighting, violence or display of force, perpetrated by one or more persons, in circumstances that one would reasonably expect a bystander of reasonable firmness and courage to be terrified. Such bystanders are often present and may include an innocent or intended victim of the affray, but this need not be the case.

Affray is best exemplified by fights between two individuals or, as is often the case, groups, which have the effect of terrifying one or more bystanders.

A person convicted of affray is liable to imprisonment of 7 years on indictment and a fine pursuant to section 101I(1) of the Criminal Procedure Ordinance (Cap. 221). The sentence is dependent on the facts of each case.

“Breach of the Peace”

An affray will disturb or breach the peace where it has the effect of instilling in a person or persons nearby or involved in it, a reasonable fear of being harmed. There must be a real risk, and not merely a possibility, of harm. (HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837).

Accordingly, it follows that a disturbance of the peace may be achieved without any violence or threats of violence. As affrays commonly involve gangs, it is sufficient that a defendant’s conduct implies, as a natural consequence, violence by a third party such as a member of the defendant’s group (HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, [79])

It is also sufficient for the conduct in question to merely involve a display of force without actual violence, such as brandishing an offensive weapon.

“The element of terror”

It is an essential element of this offence for the affray to be calculated to terrify an ordinarily and reasonably firm person. That a person might feel frightened or intimidated does not meet the required threshold.

6. Fighting in Public Place (Section 25 Public Order Ordinance)

Any person who takes part in an unlawful fight in a public place shall be guilty of an offence and shall be liable on summary conviction to a fine of $5,000 and to imprisonment for 12 months (section 25 Public Order Ordinance).

“Unlawful fight”

The prosecution must prove that an unlawful fight took place. Persons acting in reasonable self-defence would therefore not be involved in unlawful fighting.

“Public place”

Public place means any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, and, in relation to any meeting, includes any place which is or will be, on the occasion and for the purpose of such meeting, a public place (section 2 Public Order Ordinance).

7. Power to prohibit flags (Section 3 Public Order Ordinance)

(1) Any police officer of or above the rank of inspector may—

1. prohibit the display at a public gathering of any flag, banner or other emblem;
2. prohibit the owner, tenant, occupier or person in charge of any premises or place, and the owner or person in charge of any vehicle, tramcar, train or vessel from permitting the display of any flag, banner or other emblem on or at the premises, place, vehicle, tramcar, train or vessel,

if such police officer reasonably believes that the display of any flag, banner or emblem is likely to cause or lead to a breach of the peace.

(2) Where a prohibition is issued under subsection (1), any police officer may seize and detain any flag, banner or emblem, and may if reasonably necessary—

1. enter any premises or place; and
2. stop and board any vehicle, tramcar, train or vessel,

using such force as may be necessary for these purposes.

(3) Any person who displays or permits the display of any flag, banner or other emblem in contravention of any prohibition issued under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine at level 2 and to imprisonment for 2 years.

(4) No prosecution for an offence under this section shall be instituted without the consent of the Secretary for Justice.

(section 3 Public Order Ordinance)

“Likely to cause or lead to a breach of the peace”

It must be that the likely effect of the flag, emblem or banner, on others is a breach of the peace.

“Breach of the peace” can be understood in the context of the offence of “Disorder in Public Places” under section 17B Public Order Ordinance as discussed in Section 2 above.

8. Proposing violence at public gatherings (Section 26 Public Order Ordinance)

Any person who, without lawful authority, at any public gathering makes any statement, or behaves in a manner, which is intended or which he knows or ought to know is likely to incite or induce any person —

1. to kill or do physical injury to any person or to any class or community of persons;
2. to destroy or do any damage to any property; or
3. to deprive any person by force or fear of the possession or use of any property either permanently or temporarily,

shall be guilty of an offence and shall be liable —

• on conviction on indictment, to imprisonment for 5 years; and
• on summary conviction to a fine of $5,000 and to imprisonment for 2 years.

(section 26 Public Order Ordinance)

12. Loitering (Section 160 Crimes Ordinance)

Section 160 of the Crimes Ordinance (Cap. 200) specifies three situations in which a person loitering in a public place or common parts of a building commits an offence:

• Loitering with the intent to commit an arrestable offence, which may attract a fine of $10,000 and imprisonment for 6 months (section 160(1)).
• Loitering and wilfully obstructing any person using the aforementioned place or common parts, which may attract a sentence of imprisonment 6 months (section 160(2)).
• Loitering and causing, whether by his own presence alone or that of others, any person reasonably to be concerned for his safety or well-being, which may attract a sentence of imprisonment of 2 years (section 160(3)).

“Public place”

Public place means (section 3 Interpretation and General Clause Ordinance):

1. any public street or pier, or any public garden; and
2. any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to which the public have or permitted access.

“Arrestable offence”

Arrestable offence means an offence for which the sentence is fixed by law or for which a person may under or by virtue of any law be sentenced to imprisonment for a term exceeding 12 months, and an attempt to commit any such offence. (section 3 Interpretation and General Clause Ordinance)

“Loiter”

Loitering means “idling, lingering or hanging about”. Driving around in a motorcar or sitting in a stationary may amount to loitering as may tailing or surveying others by motor vehicle or on foot.

The prosecution only has to prove that the defendant loitered deliberately, and this caused another person reasonably to be concerned for his safety or well-being. The loitering does not need to have been done with the intention of causing concern.

“Well-being”

The prosecution must prove that the person in question did become concerned for his safety or well-being because of the defendant’s loitering and that a person with a sound and robust mind would be so concerned because of the defendant’s loitering (HKSAR v Chan Man Chung [2004] 1 HKLRD 641).

14. Seditious Intention (Sections 24 Safeguarding National Security Ordinance)

Section 24 of the Safeguarding National Security Ordinance, which replaced sections 9 and 10 of the Crimes Ordinance, makes it an offence to do any act, utters words, prints, publishes, sells, offers for sale, distributes, displays, reproduces or imports any publication that has a seditious intention.  The maximum penalty is 7 years of imprisonment.  If this offence is committed with seditious intention and in collusion with external force is punishable by up to 10 years of imprisonment.

Possessing publications that has seditious intentions without reasonable excuse can attract a term of imprisonment for up to 3 years.

A seditious intention can either be found in the act or words of a person or contained in the words of publications.  It is an intention to:

“section 23(2)(a) …to bring a Chinese citizen, Hong Kong permanent resident or a person in the HKSAR into hatred, contempt or disaffection against the following system or institution—

• the fundamental system of the state established by the Constitution of the People’s Republic of China;
• a state institution under the Constitution of the People’s Republic of China; or
• the following offices of the Central Authorities in Hong Kong—
  • the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region;
  • the Office for Safeguarding National Security of the Central People’s Government in the Hong Kong Special Administrative Region;
  • the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region; or
  • the Hong Kong Garrison of the Chinese People’s Liberation Army;

(b) an intention to bring a Chinese citizen, Hong Kong permanent resident or a person in the HKSAR into hatred, contempt or disaffection against the constitutional order, executive, legislative or judicial authority of the HKSAR;

(c) an intention to incite any person to attempt to procure the alteration, otherwise than by lawful means, of—

1. any matter established in accordance with the law by the Central Authorities in relation to the HKSAR; or
2. any matter established in accordance with the law in the HKSAR;

(d) an intention to cause hatred or enmity amongst different classes of residents of the HKSAR or amongst residents of different regions of China;

(e) an intention to incite any other person to do a violent act in the HKSAR;

(f) an intention to incite any other person to do an act that does not comply with the law of the HKSAR or that does not obey an order issued under the law of the HKSAR."

However, under sub-section 23(3) and (4), the acts, words, or publications that are done with the following intentions are not with a seditious intention:

(a) an intention to give an opinion on the system or constitutional order mentioned in subsection section 23(2)(a) or (b), with a view to improving the system or constitutional order;

(b) an intention to point out an issue on a matter in respect of an institution or authority mentioned in subsection section 23(2)(a) or (b), with a view to giving an opinion on the improvement of the matter;

(c) an intention to persuade any person to attempt to procure the alteration, by lawful means, of—

1. any matter established in accordance with the law by the Central Authorities in relation to the HKSAR; or
2. any matter established in accordance with the law in the HKSAR;

(d) an intention to point out that hatred or enmity amongst different classes of residents of the HKSAR or amongst residents of different regions of China is produced, or that there is a tendency for such hatred or enmity to be produced, with a view to removing the hatred or enmity.

The sedition offence can be committed without any intention to incite other people to public disorder or violence.

Section 26 of the Safeguarding National Security Ordinance provides a defence to the offence of importing seditious publication if the importer can offer evidence that he did not know that the imported publication had a seditious intention at the time of the alleged offence.

The offence of sedition, under the previous sections 9 and 10 of the Crimes Ordinance, was considered by the Court of Appeal in HKSAR v. Tam Tak Chi [2024] HKCA 231.  The Court of Appeal held that criticising the government, the administration of justice; or engaging in debates about or even raising objections to government policy or decision, however strongly, vigorously or critically, do not constitute a seditious intention.

Sedition generally relates to the dissemination of words, which requires a sufficient degree of adaptive flexibility for it to be effective and responsive enough to cope with the change in technological advances, time and circumstances, such as societal evolution or political climate.  Words must be understood against the contemporaneous socio-cultural and political setting of society.  Sedition offences must be sensitive to time, issue and context in which the words are spoken.

The scope of ‘Central Authorities’

Section 23(2)(a)(iii) of the Safeguarding National Security Ordinance sets out the list of following bodies as “Central Authorities” for which the intention to bring them into “hatred, contempt or disaffection” would amount to the sedition offence: i) the Liaison Office of the Central People’s Government, ii) the Office for Safeguarding National Security, iii) the Office of the Commissioner of the People’s Republic of China, and iv) the Hong Kong Garrison of the Chinese People’s Liberation Army.”

4. Bomb Hoax (Section 28 Public Order Ordinance)

A bomb hoax under this section is committed when a defendant does something with the intention of inducing others to believe that a bomb or article is likely to explode or ignite in a manner that will cause injury to property or persons (section 28 Public Order Ordinance).

The section stipulates two ways by which a defendant may induce others, namely, by (i) placing articles or substances in a place or dispatching the same by way of post, rail, sea, air or other means of sending things from one place to another (section 28(1)) and (ii) by communicating information which he knows or believes to be false to another person (section 28(2)).

It is not necessary for the defendant to have a particular person in his contemplation as the target of his inducement.

Defendants found guilty under this offence shall be liable to a fine of $50,000 and to imprisonment for 3 years on summary conviction; and a fine of $150,000 and to imprisonment for 5 years on conviction on indictment,.

“Mental element”

It must be proved that the defendant knowingly communicated information he knew or believed to be false, with the intention of inducing in another person the belief that the bomb or substance is liable to explode at a given place or time.

7. Possession of firearms and ammunition (Section 13 Firearms and Ammunition Ordinance)

No person shall have in his possession any arms or ammunition unless he holds a licence for possession of such arms or ammunition or a dealer’s licence therefor. If so, a person commits an offence and is liable on conviction upon indictment to a fine of $100,000 and to imprisonment for 14 years (section 13 Firearms and Ammunition Ordinance).

“Possession”

A person has possession of an object if he knowingly has it in his physical and actual custody or otherwise within his physical control, and intends to have custody of it or to exercise control over it as when the occasion requires.

Physical custody means the object is on or about the individual’s person.

If a person is carrying an article in his hand or in a pocket of his clothing, he has it in his possession if:

1. he know it is there;
2. he intends it to be there;
3. he is aware of its nature; and
4. he intends to exercise control over the object as and when it is required.

A person has physical control over an article, if he knowingly has the ability, as and when occasion requires, to use it to the exclusion of other people or to keep it safe or away from other people and intends so to use or keep it.

An article may be possessed by more than one person at the same time. Mere presence in the company of an article is not of itself possession.

8. Possession of prohibited weapons (Section 4 Weapons Ordinance)

Any person who has possession of any prohibited weapon commits an offence and is liable to a fine of $10,000 and to imprisonment for 3 years (section 4 Weapons Ordinance).

List of prohibited weapons (Schedule Weapons Ordinance):

• Chinese-style throwing dart
• Gravity knife
• Gravity-operated steel baton
• Knuckleduster whether spiked or not and with or without blade
• Chinese-style fighting iron
• Spring-loaded steel baton
• Any knife the blade which is exposed by a spring or other mechanical or electric device
• Any blade or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist and the blade or pointed protrudes between the fingers or the fist.

2. Arson (Section 60(3) Crimes Ordinance)

Committing the offence of Criminal Damage by fire shall be charged as arson. (S.60(3) Crimes Ordinance)

Given that Hong Kong is densely populated, and residential and commercial premises are crowded, arson may more likely bring about grave consequences in the form of serious injuries, and loss of life and property. Therefore, arson has always been regarded by courts as a very serious offence for which a deterrent sentence is called for. A sentence of immediate imprisonment is considered customary and the practice of Courts in arson cases. The maximum sentence is that of life imprisonment (HKSAR v. Chong Yam Miu, Lucas [2020] HKDC 216)

 “Young offender”

The Court of Appeal held that when the court sentenced young offenders for arson, appropriate weight should be given to factors such as protection of the public, commensurate punishment, societal disapproval and deterrence; and cannot just focus on rehabilitation and reform. In general, in the view of the seriousness of an offence of arson, more weight should be put on the factors of protection, punishment, disapproval and deterrence rather than rehabilitation (Secretary for Justice v. SWS [2021] 1 HKLRD 1136, [55]).

“Relevance of the National Security Law”

Where arson is politically motivated and is intended to coerce the HKSAR and PRC Governments or any international organization or intimidate members of the public into pursuing a specific political agenda, it qualifies as a Terrorist Activity under Part 3 of the National Security Law and an offence under Article 24.

Article 24 stipulates the different ways in which an offence under Article 24 is established, including inflicting serious violence on others, or sabotaging public infrastructure such as transport, electricity, water or gas facilities, telecommunications and the internet. A catch-all provision in 24(5) covers dangerous activities which may seriously jeopardise public health, safety or activity. As from Article 24(2), arson is envisaged as a means of achieving the above, where the arson under the National Security Law causes serious bodily injury, death or significant loss of public or private property, a defendant is liable to a sentence of life imprisonment or imprisonment of at least 10 years. In other cases, the sentence will be a fixed-term of imprisonment of 3 to 10 years.