Between:
LEUNG KWOK HUNG (1st Appellant)
FUNG KA KEUNG , CHRISTOPHER (2nd Appellant)
LO WAI MING (3rd Appellant)
and
HONG KONG SPECIAL ADMINISTRATIVE REGION (Respondent)
Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ:
1. The freedom of peaceful assembly is a fundamental right. It is closely associated with the fundamental right of the freedom of speech. The freedom of speech and the freedom of peaceful assembly are precious and lie at the foundation of a democratic society.
2. These freedoms are of cardinal importance for the stability and progress of society for a number of inter-related reasons. The resolution of conflicts, tensions and problems through open dialogue and debate is of the essence of a democratic society. These freedoms enable such dialogue and debate to take place and ensure their vigour. A democratic society is one where the market place of ideas must thrive. These freedoms enable citizens to voice criticisms, air grievances and seek redress. This is relevant not only to institutions exercising powers of government but also to organizations outside the public sector which in modern times have tremendous influence over the lives of citizens. Minority views may be disagreeable, unpopular, distasteful or even offensive to others . But tolerance is a hallmark of a pluralistic society. Through the exercise of these freedoms minority views can be properly ventilated.
3. A peaceful assembly may consist of a procession, as it did in the present case. A procession is an effective means of communication because it involves an expression of the views of the participants as they move from one place to another. A procession has been aptly called an assembly in motion. The message the participants are seeking to communicate may have a wide exposure. A procession is a potent method of expression and is a common phenomenon in democratic societies including Hong Kong.
4. This appeal concerns a challenge to the constitutionality of the statutory scheme for the regulation of public processions contained in the Public Order Ordinance, Cap. 245 (“the Ordinance”). The focus of the challenge is on the contention that the statutory discretion conferred on the Commissioner of Police (“the Commissioner”) to restrict the right of peaceful assembly for the purpose of “public order (ordre public)” is too wide and uncertain to satisfy the requirements of constitutionality.
The convictions
5. On 25 November 2002, the Chief Magistrate (Mr Patrick Li) convicted the 1st appellant of the offence of holding an unauthorized assembly and the 2nd and 3rd appellants of the offence of assisting the holding of such unauthorized assembly. These were offences under s. 17A(3)(b)(i) of the Ordinance. The offences were in respect of a public procession on 10 February 2002. Each appellant was bound over on his own recognizance for $500 for a period of three months.
The facts
6. The facts can be shortly stated. In the late morning of Sunday 10 February 2002, a number of persons gathered at Chater Garden for a procession to protest against the conviction of an activist for assault and obstruction of a public officer. The 2nd appellant, using a loudhailer, called on the participants to get ready. Police officers were at the scene since there was a demonstration concerning the right of abode at Chater Garden at that time. The 1st appellant, a well known activist, was the person in charge of the procession. A police officer invited him to go through the statutory notification procedure. He refused and was warned by the police officer of the consequences of his failure to comply before the procession started.
7. The procession comprising some 40 people then set off from Chater Garden in the direction of Police Headquarters at Arsenal Street proceeding along Queensway. Ignoring police advice to use the pedestrian pavement, they used the left traffic lane of the road. As the procession proceeded, others joined in so that the number swelled to about 96 persons.
8. On arrival outside Police Headquarters, again ignoring police advice not to use the North Gate where space was limited, the participants proceeded to that Gate. They stayed on the pavement there for about an hour when speeches were made. The procession was at all times peaceful.
Court of Appeal
9. The appellants appealed to the Court of First Instance which directed the appeal to be heard by the Court of Appeal. The Court of Appeal (Ma CJHC and Yeung JA, Stock JA dissenting) upheld the convictions: HKSAR v. Leung Kwok Hung & Others [2004] 3 HKLRD 729.