Public Order Offences

Chapter 31 PUBLIC ORDER OFFENCES
Sect. I. II. Introduction . . . . . . . . . . . . . . . . . Unlawful Assembly, Riot, Affray and Fighting in a Public Place A. Unlawful Assembly . . . . . . . . . . . . B. Riot and Riotous Activity . . . . . . . . . . . C. Affray . . . . . . . . . . . . . . . . D. Fighting in a Public Place. . . . . . . . . . . Public Meetings, Gatherings and Processions . . . . . . . . A. Public Order Ordinance (Cap 245), Part II. . . . . . B. Other offences under the Public Order Ordinance (Cap 245) C. Offences under the Summary Offences Ordinance (Cap 228) Breach of Curfew . . . . . . . . . . . . . . . Closed Areas . . . . . . . . . . . . . . . . . Making of Threats A. General. . . . . . . . . . . . . . . . B. Bomb Hoaxes . . . . . . . . . . . . . . Desecration of Flags and Emblems. . . . . . . . . . . Loitering . . . . . . . . . . . . . . . . . . Defamatory Libel . . . . . . . . . . . . . . . Para. 311 312 3115 3126 3134 3137 3138 3160 3162 3168 3169A 3170 3171 3172 3174 3176
III.
IV. IVA. V. VI. VII. VIII.
I. INTRODUCTION
The Public Order Ordinance (Cap 245) is the principal piece of legislation in Hong 311 Kong relating to the maintenance of public order and the control of meetings, processions, unlawful assemblies and riots. The Public Order Ordinance was enacted in 1967. It consolidated into one Ordinance (with enhancements drawn from provisions of legislation in force in Kenya, Nyasaland, Northern Rhodesia and Southern Rhodesia) a number of statutory provisions relating to public order and enacted, with modifications, statutory provisions in respect of the offences of unlawful assembly and riot, both of which were previously offences under the common law. The Public Order Ordinance was subsequently amended a number of times, with the 1995 amendments being notable in liberalising the control of meetings and processions to ensure compliance with the Hong Kong Bill of Rights. The 1995 amendments were, however, declared to be inconsistent with the Basic Law of the Hong Kong Special Administrative Region by the Standing Committee of the National Peoples Congress on 23 February 1997 and not adopted as provisions of laws of the Hong Kong Special Administrative Region. The Provisional Legislative Council enacted in 1997 the present provisions on the control of meetings and processions in replacement. Other offences against public order are found in the Crimes Ordinance (Cap 200), the Summary Offences Ordinance (Cap 228) and the common law.
II. UNLAWFUL ASSEMBLY, RIOT, AFFRAY AND FIGHTING IN A PUBLIC PLACE A. Unlawful Assembly (1) Statute
Public Order Ordinance (Cap 245), s 18 Unlawful assembly 18.(1) When three or more persons, assembled together, conduct themselves in a disorderly, 312 intimidating, insulting or provocative manner intended or likely to cause any person reasonably
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to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace, they are an unlawful assembly. (2) It is immaterial that the original assembly was lawful if, being assembled, they conduct themselves in such a manner as aforesaid. (3) Any person who takes part in an assembly which is an unlawful assembly by virtue of subsection (1) shall be guilty of the offence of unlawful assembly and shall be liable (a) on conviction on indictment, to imprisonment for five years; and (b) on summary conviction, to a fine of HK$5,000 and to imprisonment for three years.
[Sub-sections (1) and (3) were amended by s 11 of the Public Order (Amendment) Ordinance (31 of 1970).]
(2) Indictment
Statement of Offence
313
Unlawful assembly, contrary to sections 18(3) of the Public Order Ordinance (Cap 245).
Particulars of Offence
AB and CD, on the _______ day of _______, 20___, at ______, took part in an unlawful assembly, in that they assembled together with each other and with EF and other persons unknown and the persons so assembled conducted themselves in a disorderly, intimidating, insulting or provocative manner [intended or likely to cause any person reasonably to fear that the persons so assembled would commit a breach of the peace or will by such conduct provoke other persons to commit a breach of the peace].
See R v Mahroof (1988) 88 Cr App R 317, CA (Eng) as to the need to make it plain in the particulars if the conduct of persons other than the accused is being relied upon.
(3) Sentence
314
The maximum penalty of imprisonment prescribed for summary conviction is above the general sentencing jurisdiction of a magistrate under the Magistrates Ordinance (Cap 227). In sentencing for unlawful assembly, it was a wholly wrong approach to take the acts of any individual participator in isolation. The gravity of the offence was constituted by the very fact that they were not committed in isolation: R v Caird & Others (1970) 54 Cr App R 499, CA (Eng).
(4) Ingredients of the offence Three or more persons, assembled together

315
See R v Mahroof, above, and R v Fleming and Robinson [1989] Crim L R 658, CA (Eng). Where the only person against whom there is evidence of disorderly, intimidating, insulting or provocative conduct are those named in the indictment, the jury should be specifically directed that if they are not sure that three or more of the defendants were conducting themselves in a disorderly, intimidating, insulting or provocative manner they should acquit all the defendants, even if satisfied that one or more particular defendants were unlawfully fighting. A distinction is to be made between the character of the assembly and those who constituted it on the one hand, and on the other the purpose of the assembly. It matters not whether the purpose of the assembly is lawful or unlawful: HKSAR v Yeung Kin Ping & Others [1997] HKLRD 1008, CFI, following R v Cunninghame, Graham and Burns (1888) 16 Cox CC 420. See also Tse Chung v R [1967] HKLR 452, HC. Where a group of persons assembled at a location and only three or more amongst 316 them conduct themselves in one of the manners described in section 18(1), it is they, not other members of their group who do not conduct themselves, who become an unlawful assembly: R v To Kwan Hang & Another [1995] 1 HKCLR 251 per Macdougall
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VP. Likewise, persons who assembled together for an innocent purpose and conducted themselves in a peaceable manner would not be turned into an unlawful assembly by the presence of others who took such unreasonable offence at what the assembled person said or stood for that onlookers reasonably feared an attack by the unreasonable persons on the innocent and peaceable ones: ibid. at p 307 per Bokhary JA, applying Beatty v Gilbanks (1882) 9 QBD 308, DC (Eng).
Disorderly, intimidating, insulting or provocative manner

In Brutus v Cozens [1972] AC 854, the question was what was the proper meaning to 317 be given to insulting in s 5 of the Public Order Act 1936 [Eng]. The House of Lords held that this was not a question of law at all but a question of fact. The word must be given its ordinary meaning. This approach was subsequently followed by the Divisional Court in Chambers and Edwards v DPP [1995] Crim LR 896 in relation to disorderly behaviour under s 5 of the Public Order Act 1986 [Eng]. It is submitted that the reasoning of the House of Lords in Brutus v Cozens, above, applies not only to insulting but also to other words in the phrase. Disorderly was considered in Campbell v Adair [1945] SC( J) 29 to be:
a word of very wide comprehension which indicates less aggressive conduct than would be required to constitute a breach of the peace. The question is not whether the conduct of the appellant provoked disorder by leading to disorderly action on the part of others [but] whether he himself acted in a manner which can be described as disorderly.
In that case the conviction was sustained as the conduct of the appellant, which took place on an omnibus, was so disturbing to the conduct of the omnibus that a passenger got off in disgust before his destination. Unpleasant behaviour and aggressive demeanour of a group of youths, even with the use of swear words, when confronting staff of a convenience store is not disorderly conduct unless something further occurs (which in the case was one or more of the youths sweeping goods off a stand by the counter): HKSAR v Chan Ka Chuen Raymond (unrep., HCMA 816/2008, [2009] HKEC 802), CFI. Using abusive language to a police officer was held not to contravene s 5 of the UKs Public Order Act 1986 where there was no evidence of alarm or distress: Harvey v DPP (2012) 176 JP 265, QBD. On the other hand, the conduct of 22 people entering a night club, sitting quietly together and allegedly waiting for people, would not amount to disorderly conduct: HKSAR v Tsui Yat Hung (unrep., HCMA 95/1999, [1999] 2 HKLRD F11). Attempting to photograph under the skirt of a woman is disorderly conduct: HKSAR v Cheng Siu Wing (unrep., HCMA 619/2003, [2003] HKEC 1120), CFI. On the other hand, in HKSAR v Chan Kwai Hung (unrep., HCMA 1108/2008, [2009] HKEC 1710), CFI, it was said that it does not follow that in every situation where a defendant attempts to take photographs underneath a womans skirt he would be guilty of disorderly conduct; the court must look at the circumstances of the case, who was present, and take into account how they reacted. Cf Vignon v DPP (1998) 162 JP 115, DC (Eng); R v Hamilton [2008] 1 All ER 1103, [2007] 2 WLR 107, CA (Eng) (where similar conduct was prosecuted in England as conduct outraging public decency); HKSAR v Law Sai Hong (unrep., HCMA 177/2008, [2008] CHKEC 555), CFI; HKSAR v Yeung Hin Kwong Stevens (unrep., HCMA 604/2008, [2008] CHKEC 1128), CFI; and Blackstones Criminal Practice 2012 [B11.48] (see also Loitering 3174 et seq). Touching a womans calves with both hands when couching underneath a seat on a bus is disorderly conduct: HKSAR v Ng Ho Him (unrep., HCMA 549/2008), CFI. Cf); and Morse v Police [2011] NZSC 45 (where the Supreme Court of New Zealand elucidated further on the meaning of offensive behaviour in the context of public order legislation, which it took to be two sides of the same coin with disorderly behaviour), considering that [it] is not sufficient that others present are offended if public order is not disrupted. The behaviour must ... be such as to interfere with the use of public space by any member of the public, as through intimidation, bullying or the creation of alarm or unease at a level that inhibits recourse to the place. Cf Brooker v Police [2007] 3 NZLR 91, where the Supreme Court of New Zealand held that whether a person was behaving in a disorderly
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manner involved an objective assessment of the tendency of the behaviour to disturb public order; and Morse v Police [2011] NZSC 45, where the Supreme Court of New Zealand elucidated further on the meaning of offensive behaviour in the context of public order legislation, which it took to be two sides of the same coin with disorderly behaviour, considering that [it] is not sufficient that others present are offended if public order is not disrupted. The behaviour must Be such as to interfere with the use of public space by any member of the public, as through intimidation, bullying or the creation of alarm or unease at a level that inhibits recourse to the place:
Likely to
318
In Parkin v Norman, above, a conviction was quashed because the justices must have read likely to as if it read liable to.
Cause any person reasonably to fear

319
Evidence that any person was put in fear or that any reasonable person might have been put in fear in the circumstances of the facts as shown in the evidence adduced must be found to sustain a charge of unlawful assembly: R v Sit Kwok Chiu & Others [19731976] HKC 422, HC; and R v Chow Hon Kit & Others (unrep., 23 February 1990, HCMA 67/1990). The fact that there has been a breach of the peace is evidence that persons present feared it: R v Howell (1981) 73 Cr App R 31, CA (Eng). The prosecution, however, did not necessarily have to call evidence from bystanders to testify that they had been in fear that there would be a breach of the peace. The circumstances described by those involved (including the conduct of the defendants) would usually be sufficient and particularly so where the particulars alleged that the defendants conduct was likely to cause any person to reasonably fear the occurrence of a breach of the peace: R v To Kwan Hang & Another, above, applying Taylor v DPP (1973) Cr App R 915, HL. Although it is unnecessary to show, in order to prove the offence, that the assembly took place in a public place, the essential prerequisite is the presence or likely presence of innocent third parties, members of the public not participating in the illegal activities in question. It is their presence or the likelihood of it and the danger to their security in each case which constitutes the threat to public peace and the public element necessary to the commission of the offence: Kamara & Others v DPP [1973] 2 All ER 1242, HL, followed in HKSAR v Yeung Kin Ping & Others, above. Therefore, no offence under s 18 is committed if the only persons present or likely to be present to witness or to hear the insulting or disorderly conduct or to be within earshot or so placed as to be caused apprehension or fear are, apart from the disorderly group whose conduct is the subject of the charge, others who are themselves engaged upon unlawful conduct which occasions or contributes to the unruly conduct which is the subject matter of the charge.
Commit a breach of the peace

3110
In R v Howell, above, the court stated that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance; HKSAR v Chow Nok Hang & Anor (unrep., HCMA 193/2012, 20 July 2012). See also R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105, HL; Chan Hau Man Christina v Commissioner of Police [2009] 4 HKLRD 797, CFI; HKSAR v Au Kwok Kuen, [2010] 3 HKLRD 371, CFI. But a mere disturbance not involving violence or a threat of violence could not amount to a breach of the peace: Parkin v Norman, above. Agitated or excited behaviour, not involving injury, nor any verbal threat, is not capable of amounting to a breach of the peace: Jarrett v Chief Constable of West Midlands Police (unrep., The Times, February 28, 2003), CA (Eng) (Civ Div). See also Hawkes v DPP (unrep., The Times, November 29, 2005), QBD (Newman J.); HKSAR v Lo Man Hong (unrep., HCMA 874/2009, [2010] CHKEC 665),
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CFI; HKSAR v Lam Chun Kong (unrep., HCMA 147/2010, [2010] HKEC 1551). Bokhary JA indicated in R v To Kwan Hang & Another, above, that someone commits a breach of the peace when he unlawfully resorts to violence which injures someone or damages property, or which puts someone in immediate danger of injury or property in immediate danger of damage. The court must take into account the circumstances of the case, who was present and how they reacted, in order to be satisfied that the effect of the defendants conduct would have caused sufficient outrage to make it likely that one or more of them would not confine themselves simply to the force reasonable to effect the arrest of the defendant: HKSAR v Chan Kwai Hung (unrep., HCMA 1108/2008, [2009] HKEC 1710), CFI. A breach of the peace is likely to result if the accuseds disorderly conduct is known to others after a hue and cry, as the citizens who came forward to assist may decide to seize or punish the accused, thus involving the use of violence: HKSAR v Cheng Siu Wing [2003] 4 HKC 471, CFI. See also HKSAR v Yip Tak Ming [2004] 3 HKLRD 286, CFI HKSAR v Pearce [2005] 4 HKC 105; HKSAR v Wong Wing Hong (unrep., HCMA 307/ 2006, [2006] HKEC 1378); HKSAR v Tsui Chi Yung (unrep., HCMA 1051/2006, [2007] HKEC 628, CFI). A breach of the peace may be occasioned in a private place or private property, as well as in a public place: McConnell v Chief Constable of the Greater Manchester Police [1990] 1 All ER 423, CA (Eng), followed in HKSAR v Yeung Kin Ping & Others, above. A breach of the peace can take place on private premises even though the disturbance does not affect members of the public or at least one other person outside the private premises themselves: ibid. A disturbance or demonstration should not be considered in terms of isolated events but the continuous chain of events to see if the conduct was likely to cause another reasonably to fear a breach of the peace: HKSAR v Wong Ying Yu [1997] HKLY 236, CFI. See also HKSAR v Yeung Ka Wah (unrep., October 30, 2008, HCMA 110/2008), CFI. (NB: Deputy Judge Toh referred to 319 and 3110 of this Work).
One of a crowd: evidence of identification and participation

Where a crowd of people together appear to be taking part in an unlawful assembly 3111 and the group is arrested as a group, two questions arise in relation to proving a contravention of s 18 against a particular individual: (a) proof of his presence in the crowd; and (b) proof of his participation in an offence. These two questions were considered in connection with the offence of threatening, abusive or insulting behaviour at a public place or meeting under s 5 of the Public Order Act 1936 [Eng] by the Divisional Court in Allan & Others v Ireland (1984) 79 Cr App R 206. Presence in close proximity in a crowd to people in violent confrontation with the police was evidence from which a court might infer that the person so behaving had held a common intention of violence with those other persons whose actions were observed to be of a more violent nature than his: R v Tse Chung, above.
Self-defence
In the case of HKSAR v Yeung Kin Ping & Others, above, the appellant went to the flat 3112 of the complainant to collect what he believed was an outstanding debt and knowing full well that he might be attacked. The appellant went to the flat with a number of men who later on joined in a melee with the complainant and his family members. The appellant could not then claim self-defence in opposition to a charge of unlawful assembly arising out of the disorderly conduct displayed by his men since there was no necessity in the first place to go to the complainants flat as there were other peaceable means to collect the debt.
(5) Compatibility with Hong Kong Bill of Rights

The Court of Appeal held that s 18 was consistent with Article 17 of the Hong Kong 3113 Bill of Rights, which guarantees the right of peaceful assembly: R v To Kwan Hang &
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Another, above. Macdougall VP considered that Article 17 could not possibly, on a wide and purposive interpretation, be taken to confer a right of assembly on persons who conducted themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such conduct provoke other persons to commit a breach of the peace. Litton JA agreed. Bokhary JA held that s 18 did not purport to outlaw any peaceful assembly, bearing in mind the meaning of commit a breach of the peace. Petitioners had no right to hold any assembly within a private residential development in the absence of permission. In Hong Kong, notwithstanding the acknowledged importance of the right of peaceful assembly and the right to freedom of expression, neither the provisions in the Basic law of the HKSAR nor those in the Hong Kong Bill of Rights bestow any freedom of forum for the exercise of those rights. None of the relevant provisions require the automatic creation of rights of entry to private residential property. The right of peaceful assembly and the right to freedom of expression stop, so far as physical or geographical limits are concerned, at the boundary of private residential property belonging to others, in the absence of any permission to enter. The constitutional protection of private property rights under Articles 6, 29 and 105 of the Basic Law of the HKSAR means that the position in Hong Kong is an a fortiori one, unlike that provided in the International Covenant on Civil and Political Rights, where private property rights subsumed under the rights and freedoms of others for justifying necessary restrictions of the rights of peaceful assembly and to freedom expression. Further the right to privacy of owners or occupiers of buildings and developments under co-ownership must be given a generous interpretation to include common areas (such as a driveway) for the purpose of protection of their privacy. The positive duty on the part of the Government and the police was to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully. As the petitioners had no right to assemble within the private residential development without the necessary permission, there was no question of the police owing to them any positive duty to assist them to hold the assembly. Nor was there any question of the police interfering with the petitioners right to assembly: HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, CFI (applying Appleby v United Kingdom (2003) 37 EHRR 38, ECtHR). Cf Brooker v Police [2007] 3 NZLR 91, where the Supreme Court of New Zealand held that whether a person was behaving in a disorderly manner involved an objective assessment of the tendency of the behaviour to disrupt public order. Where the behaviour concerned involved a genuine exercise of the right to freedom of expression, the reasonable member of the public might well be expected to bear a somewhat higher level of anxiety or disturbance than would otherwise be the case to prevent an unjustified limitation of the freedom.
(6) Enforcement
3114
Section 45 of the Public Order Ordinance (Cap 245) empowers any police officer to use such force as may be necessary (a) to prevent the commission or continuance of any offence under the Ordinance; (b) to arrest any person committing or reasonably suspected of being about to commit or of having committed any offence under the Ordinance; or (c) to overcome any resistance to the exercise of any of the powers conferred by the Ordinance. However, s 46(1) provides that the degree of force so used must not be greater than is reasonably necessary for the relevant purpose.
B. Riot and Riotous Activity (1) General

Public Order Ordinance (Cap 245), s 19
3115
19.(1) When any person taking part in an assembly which is an unlawful assembly by virtue of section 18(1) commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled.
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(2) Any person who takes part in a riot shall be guilty of the offence of riot and shall be liable (a) on conviction on indictment, to imprisonment for 10 years; and (b) on summary conviction, to a fine of HK$5,000 and to imprisonment for five years.
[Sub-section (1) was amended by s 12 of the Public Order (Amendment) Ordinance (31 of 1970).] As to unlawful assembly by virtue of s 18(1) of the Public Order Ordinance (Cap 245), see 312 et seq. As to commits a breach of the peace, see 3110, above. As to the use of force by police officers under the Public Order Ordinance, see 3114, above.
(2) Indictment
Riot, contrary to s 19(2) of the Public Order Ordinance, (Cap 245).
3116
AB and CD, on the _______ day of _______, 20___, at ______, took part in a riot, in that they assembled together with each other and with EF and other persons unknown at the and the persons so assembled conducted themselves in a disorderly, intimidating, insulting or provocative manner [intended or likely] to cause any person reasonably to fear that the persons so assembled [would commit a breach of the peace or will by such conduct provoke other persons to commit a breach of the peace] and did, by one or more of them, commit a breach of the peace.
See R v Mahroof, above, at 313 as to the need to make it plain in the particulars if the conduct of persons other than the accused is being relied upon. In R v Jones & Others (1974) 59 Cr App R 120, CA (Eng), the court upheld a count of unlawful assembly as not bad for duplicity even though it charged one unlawful assembly at different times and places during the day.
(3) Sentence
The maximum penalty of imprisonment prescribed for summary conviction is above 3117 the general sentencing jurisdiction of a magistrate under the Magistrates Ordinance (Cap 227). In sentencing for riot, it was a wholly wrong approach to take the acts of any individual participator in isolation. The gravity of the offence was constituted by the very fact that they were not committed in isolation: R v Caird , above. See also R v Fox and Hicks [2006] 1 Cr App R (S) 17, CA (Eng). The court should have regard, in arriving at the appropriate sentence for riot, to the level of the violence used, the scale of the riot and the extent to which it is premeditated. Where the riot occurred in a prison or detention centre, the public interest, the interest of the Correctional Service Department and the element of deterrence in order to reflect the necessity for the maintenance of control therein should also be borne in mind; see R v Pilgrim (1983) 5 Cr App R (S) 140; Att-Gen v Tse Ka Wah [1992] 2 HKCLR 16; R v Nguyen Quang Thong [1992] 2 HKCLR 10; Secretary for Justice v Cheung Chun Chin & Others [2002] 2 HKLRD 233; and HKSAR v Chan Kam Chi & Others (unrep., CACC 240 & 264 of 2002). In Secretary of Justice v Cheung Chun Chin, above, the Court of Appeal took six years imprisonment to be the proper sentence after trial for those who participated in a riot in a correctional institution, the whole purpose of which was to inflict violence on Vietnamese inmates, and when that became impossible, on correctional service officers and later the police, bearing in mind the scale and consequences (including personal injuries and damage to property) that flowed from it. Secretary for Justice v Cheung Chun Chin, above, was followed by the Court of Appeal in HKSAR v Chan Kam Chi & Others.
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3118
20.(1) Any person taking part in a riot who unlawfully pulls down or destroys or begins to pull down or destroy any motor vehicle, tramcar, aircraft, vessel, building, railway, machinery or structure shall be guilty of an offence and shall be liable (a) on conviction on indictment, to imprisonment for 14 years; and (b) on summary conviction, to imprisonment for five years. (2) A person may be convicted of an offence under this section whether or not he has been charged with or convicted of any other offence under this Part.
3119
The maximum penalty of imprisonment prescribed for summary conviction is above the general sentencing jurisdiction of a magistrate under the Magistrates Ordinance (Cap 227). There are presently no authorities on sentence.
Under section 21
3120
21.(1) Any person taking part in a riot who unlawfully damages any of the things specified in section 20 shall be guilty of an offence and shall be liable (a) on conviction on indictment, to imprisonment for 10 years; and (b) on summary conviction, to imprisonment for five years. (2) A person may be convicted of an offence under this section whether or not he has been charged with or convicted of any other offence under this Part.
3121
As to section 20 of the Public Order Ordinance (Cap 245), see 3118 et seq. The maximum penalty of imprisonment prescribed for summary conviction is above the general sentencing jurisdiction of a magistrate under the Magistrates Ordinance (Cap 227). There are presently no authorities on sentence.
Under section 22
3122
22.(1) Any person taking part in a riot who unlawfully and with force prevents, hinders or obstructs, or attempts to prevent, hinder or obstruct, the loading or unloading, or the movement, of any motor vehicle, tramcar, aircraft, train or vessel, or unlawfully and with force boards, or attempts to board, any motor vehicle, tramcar, aircraft, train or vessel with intent to do so, shall be guilty of an offence and shall be liable on summary conviction to a fine of HK$5,000 and to imprisonment for three years. (2) A person may be convicted of an offence under this section whether or not he has been charged with or convicted of any other offence under this Part.
3123
The maximum penalty of imprisonment prescribed for summary conviction is above the general sentencing jurisdiction of a magistrate under the Magistrates Ordinance (Cap 227). As to a riot, see 3115 et seq. As to any other offence under Part IV of the Public Order Ordinance (Cap 245), see 312 to 3126 and 3134 to 3136. As to the use of force by police officers under the Public Order Ordinance, see 3114, above.
Under section 23
3124
23.(1) Any person who enters on any premises in a violent manner, whether or not he is entitled to enter thereon and whether such violence consists in actual force applied to any other
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person or in threats or in breaking open any building or in collecting an unusual number of people, shall be guilty of an offence and shall be liable on summary conviction to a fine of HK$5,000 and to imprisonment for two years. (2) Nothing in this section shall make it an offence for a person to enter upon his own premises if they are in his possession or in the custody of his servant or agent.
[Sub-section (2) was replaced under s 13 of the Public Order (Amendment) Ordinance (31 of 1970).] As to the use of force by police officers under the Public Order Ordinance, see 3114, above.
Under section 24
Public Order Ordinance (Cap 245), s 24 24.Any person who, being in unlawful possession of premises, holds possession of them, 3125 in a manner likely to cause a breach of the peace or to cause any person reasonably to fear that a breach of the peace may occur, against a person entitled by law to the possession of the premises, shall be guilty of an offence and shall be liable on summary conviction to a fine of HK$5,000 and to imprisonment for two years.
As to likely to, see 318. As to cause any person reasonably to fear, see 319. As to breach of the peace, see 3110. As to the use of force by police officers under the Public Order Ordinance, see 3114, above.
C. Affray (1) Definition

An affray is a violent disturbance of the peace by one or more persons which takes 3126 place in such circumstances as to cause terror to one or more persons of reasonable firmness: R v Summers (1972) 45 Cr App R 604, CA (Eng) as modified by Taylor v DPP (1973) 57 Cr App R 915, HL per Lord Reid at p 926. (The definition of affray should state that it is a common law offence, cf UK Public Order Act 1986 which created a statutory offence and changed the definition. Hence the English authorities pre-date that legislation.) Lord Hailsham LC at p 922 and elsewhere says that affray consists in participating unlawfully in violent breach of the peace to the terror of the lieges. Unlawfully would seem apt to exclude someone acting in reasonable defence of himself or another, or using reasonable force to make an arrest or the like. If the issue of self-defence or reasonable defence of another arises, it is incumbent on the prosecution to rebut it to the criminal standard: R v Honeysett (1987) 34 A Crim R 277, CCA (NSW). In order to establish the offence of affray in a public place, the prosecution must prove: (i) that there was unlawful fighting or unlawful violence used by one or more than one person against another or others, or that there was an unlawful display of force by one or more than one person without actual violence, and (ii) that the unlawful fighting, violence or display of force was such that a bystander of reasonable firmness and courage (whether or not present or likely to be present) might reasonably be expected to be terrified. An innocent victim or intended victim or participant may constitute a bystander. The word ordinarily embraces an innocent member of the public within sight or earshot of the relevant incident: Att-Gens Reference (No 3 of 1983) [1985] 1 All ER 501, CA (Eng). The court considers it neither necessary nor desirable to embark on any discussion about fighting in places which are not public.
Violent disturbance of the peace

The most common form of affray is a fight between two men, or more usually two 3127 groups, which terrifies one or more bystanders. One man can, however, be guilty of an
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affray if he attacks someone who either does not retaliate or merely retaliates in reasonable self-defence: Taylor v DPP, above, per Lord Hailsham LC at p 923, disapproving R v Sharpe and Johnson (1957) 41 Cr App R 86, CC (Eng) on this point. (For self-defence see 2044, above.) In such a case the person attacked is not guilty of affray, or any other offence: R v Sharpe and Johnson (1957) 41 Cr App R 86, CA (Eng), approved on this point by the House of Lords in Taylor v DPP, above. The disturbance of the peace may be a display of force, eg brandishing an offensive weapon, without actual violence: R v Summers, above, and Taylor v DPP, above, per Lord Reid at p 926 and Lord Hailsham LC at p 923. What other display of force without actual violence is sufficient is not clear; ibid. The display of force may be by one man alone: ibid., and see per Lord Reid at p 928: I would not seek a rigid definition of a common law offence if a new point arises the question should always be whether it is within the mischief aimed at and within the principles established by the authorities. According to Hale (1 Hale 456), No quarrelsome or threatening words whatever will amount to an affray. The disturbance of the peace may be in public or private: Button v DPP (1966) 50 Cr App R 36, HL.
The element of terror

3128
This element of the offence must not be weakened all the early textbooks stress the derivation of the word from the French effrayer, to put in terror (see also Button v DPP [1966] AC 591, 625). See Lord Hailsham LC in DPP v Taylor, above, at p 924, It is essential to stress that the degree of violence required to constitute the offence of affray must be such as to be calculated to terrify a person of reasonably firm character. This should not be watered down. Thus it is arguable that the phrase might be frightened or intimidated may be too weak. The violence must be such as to be calculated to terrify that is, might reasonably be expected to terrify per Lord Hailsham LC in Taylor v DPP, above, at p 924. Cf Lord Reid, ibid, at pp 927928 and below.
Extent to which presence of innocent bystanders must be proved to satisfy ingredient of terror
3129
Lord Hailsham LC declined to explore this aspect of the offence in depth: It is possible that where the fight takes place in a public street it is not necessary to prove the actual presence of bystanders or persons within earshot or that they were actually terrified. It may be enough to show that the violence used was of such a kind as to render the street unusable by persons of reasonable firmness . See too as to affray in a private place; OConnor J in R v Taylor [1973] 1 All ER 78, CA (Eng). See too Lord Reid in Taylor v DPP, above, at pp 927928.
Undoubtedly if people are present it is not necessary to prove by their evidence that they were terrified. It is enough if the circumstances are such that ordinary people like them would (not might) have been terrified. But I am much more doubtful about suggestions in some cases that no one but the combatants need be present at all or even within earshot: that it is enough that if someone had been present he would have been terrified. As terror is an essential ingredient of the offence, I think that there can be no difference in principle between violence in a public or a private place that is a matter which can be decided when it arises.
As to the need for bystanders to give evidence that they were terrified, see R v Lam Hau Hing (unrep., 7 February 1990, HCMA 1512/1989). In Kamara & Others v DPP, above, Lord Hailsham implied that the presence of innocent third parties was necessary to the offence of affray. While this is clearly so when the affray consists of rival parties fighting each other unlawfully (see Button v DPP, above), it is submitted that it is not so in other forms of affray. The victims of an affray may themselves be the persons terrified, and in such a case the presence of innocent third parties, which presumably means bystanders, is unnecessary. See Taylor v DPP (above). At p 927 Lord Reid, referring to the facts in R v Scarrow (1972) 52 Cr App R 591, CA
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(Eng) (where it was held that there need not be reciprocal violence) said: Three men went into an hotel and, as a witness said, They were fighting everyone, young and old, punching, kicking and no-one retaliated. They were, in my judgment, rightly held guilty of affray. Here there appear to have been no innocent third parties. It is therefore submitted that Lord Hailsham was in error as to this requirement in the case of affray. It will be found that other dicta suggesting the need for the presence of innocent third parties relate to cases where there were two parties both unlawfully fighting, the most common type of affray. Apart from authority it would be ridiculous if, for example, when a party of men invaded a dance hall and attacked everyone in it, they could not be convicted of affray because there was no witness whom they did not attack.
(2) Indictment
Affray, contrary to common law and punishable under section 101I of the Criminal Procedure Ordinance, (Cap 221).
3130
AB and CD on the _____ day of _______ at _______, unlawfully fought and made an affray.
In R v Jones & Others, above, the relevant count alleged that the appellants together with others on September 6, 1972, on divers building sites in the county of Salop unlawfully fought and made an affray. The court held that the actus reus of the affray was fighting or show of force continued, the count should have been quashed because on the face of it although clearly defined and separate places at which the affray was alleged to have occurred were shown, the count did not allege any continuation of the actus reus between the sites. The count there alleged more than one activity and should have been quashed if the Crown were not prepared to amend it before arraignment, cf the position as to unlawful assembly, 313, above. Where the evidence on the depositions disclosed that a large number of persons, including the appellants, from 8:30 pm on 31 August to about 12:30 am on 1 September 1958, were milling about over an area of about a quarter of a mile radius from a location, a count of affray, which stated in the Particulars of Offence that the appellants on the 31st day of August, 1958 and the 1st day of September 1958, in divers streets in the neighbourhood of [the location], unlawfully fought and made an affray was held by the Court of Criminal Appeal not to be bad for duplicity and to be in proper form: R v Woodrow & Others (1959) 43 Cr App R 105. An affray can be a continuing offence but the court must consider whether the events that occurred at different times and different places could be considered as part and parcel of a general melee: R v Chiu Yuk Ching & Another [1985] HKEC 56, CA.
(3) Sentence
Seven years imprisonment and a fine: section 101I(1) of the Criminal Procedure 3131 Ordinance (Cap 221). Affrays vary greatly on their facts and the sentence imposed on a defendant must always be case specific. A court should take into account the nature of the affray itself (for example, where it occurred and the number of persons placed in fear by it, the number of participants, its duration, whether it was spontaneous or organized, the nature of the violence, whether weapons were used and whether injuries were occasioned and if so how serious those injuries were) and the role of the particular defendant so far as that can be ascertained: HKSAR v Yip Kam Wah & Anor (unrep., 26 March 2008, CACC 413/2007), CA. An affray committed in a detention centre with elements of premeditation should attract deterrent sentences, bearing in mind the interest in affording protection to correctional service officers: R v Nguyen Quang Thong & Others, above. A court could sentence a person convicted of affray upon the basis of
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one or more acts of violence even where there was no specific conviction on a specific count alleging such act. It would be undesirable in the extreme to require the prosecution to overload an indictment for affray with numerous allegations of assaults or woundings, particularly in a multi-handed case: R v Cooke (1987) 9 Cr App R (S) 116, CA (Eng). It would seem that there is no limit to the amount of the fine that may be imposed provided the sentence is not inordinate: R v Morris [1951] 1 KB 394; 34 Cr App R 210. (The sentencing powers of magistrates should in the case of this offence be specified as the general sentencing power of two years/HK$100,000 s 92, Magistrates Ordinance, Cap 227.)
(4) Aiding and abetting an affray

3132
Before a jury can convict an accused person of aiding and abetting an affray, they must be convinced of the evidence that, at the very least, he by some means or other encouraged the participants. Where presence at an affray is prima facie not accidental, it is evidence, but no more than evidence, of encouragement, even where there is also a secret intention to help one side, if necessary: R v Allan [1965] 1 QB 130; 47 Cr App R 243; R v Clarkson (1971) 55 Cr App R 445 and R v Jones and Mirless (1977) 65 Cr App R 250, CA (Eng), above 1716 and 1717.
(5) Evidence from those allegedly involved in the fighting

3133
The former rules requiring a warning to be given by judges to themselves or to juries, of the danger of relying on the uncorroborated evidence of alleged accomplices was abrogated in 1994 by s 16 of the Criminal Procedure Ordinance (Cap 221). Thus if a defendant who has pleaded guilty or another person who is or who may have been involved in the fighting is called by the prosecution, it will be a matter for the discretion of the judge to determine what, if any, warning should be given. Its form and content will depend on the circumstances of the case, the issues to be decided, the nature of the impugned witness evidence and the extent of the particular taint upon his evidence; this also applies where one defendant in a fighting case gives evidence adverse to another in a joint trial. See 4212 et seq, above on the proper approach to be taken in such cases.
D. Fighting in a Public Place (1) Statute

3134
25.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 HK$5,000 and to imprisonment for 12 months.
As to the use of force by police officers under the Public Order Ordinance, see 3114, above.
(2) Ingredients of the offence Unlawful fight

3135
The prosecution must prove that an unlawful fight took place. A fight was not unlawful to the extent to which a person taking part in a fight was acting in reasonable selfdefence: R v Wong Chi Keung [1987] 1 HKC 360, HC; R v Li Yiu Kin (unrep., 14 May 1997, MA 37/1997); HKSAR v Hau Kin (unrep., 26 September 2003, HCMA 478/2003); HKSAR v Chan Kai Ming (unrep., 3 August 2005, HCMA 4941/2005). See also R v Leung
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Chi Wing [1985] HKEC 238, HC, where the possibility of participation in the fight only in self-defence was negated.
Public place
Public Order Ordinance (Cap 245), s 2 Public Order Ordinance (Cap 245), s 2 2.(1) In this Ordinance, unless the context otherwise requires 3136 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 purposes of such meeting, a public place; .
Section 2(1) of the Public Order Ordinance (Cap 245) defines meeting to mean:
any gathering or assembly of persons convened or organized for the purpose of the discussion of issues or matters of interest or concern to the general public or a section thereof, or for the purpose of the expression of views on such issues or matters, and includes any gathering or assembly of persons whether or not previously convened or organized at which any person assumes or attempts to assume control or leadership thereof for any such purpose; but does not include any gathering or assembly of persons convened or organized exclusively(a) 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; (b) for the purpose of a funeral; (c) for the purposes of any public body; or (d) for the purpose of carrying out any duty or exercising any power imposed or conferred by any Ordinance.
The prosecution must prove that the location at which the fight took place was a public place within the meaning of s 2(1) of the Public Order Ordnance (Cap 245): R v Ng Chung Sang [1985] HKEC 295, HC. See also R v Chan Chu Shi [1990] HKLY 268, HC. In determining whether a location or area is a public place, one must consider whether the persons who are entitled or permitted to have access to a particular location or area are so entitled or permitted qua their being members of the public or members of a section of the public. Accordingly, the closed area along the Hong Kong side of the border with Shenzhen was held to be a public place since the particular location was not owned by any private owner, and those permitted to enter the closed area had general permission to enter and leave the closed area as members of the public living in that area: HKSAR v Chau Fung [1999] HKEC 508, CFI. The common corridor of private premises, the access to which was limited to the occupiers and their licensees and invitees, was not a public place within the meaning of section 2(1). Those persons other than the occupiers who may lawfully enter the premises had their legal right to enter not by virtue of their being members of the public but solely by virtue of their status as licensees or invitees of the occupiers: R v Lam Shing Chow [1985] HKLY 231. See also R v Edwards (1978) 67 Cr App R 228, CA (Eng). However, where the public or a section of the public had a right or permission to enter a place in a building or private property, that place is a public place within the meaning of section 2(1): HKSAR v Leung Chiu Ming [2003] 4 HKC 308, CFI (distinguishing R v Lam Shing Chow, above). Section 32 of the Housing Ordinance (Cap 283) deems to be a public place for the purposes of the Public Order Ordinance any land in an estate vested in or under the control and management of the Housing Authority (subject to two exceptions); see R v Chan Kin San [1988] 2 HKLR 232. There is a similar deeming provision in the Airport Authority Ordinance (Cap 483), s 44. A club, so long as it was open for business inviting members of the public to enter, was a place to which the public was permitted to have access and therefore a public place: HKSAR v Wong Yiu Wah & Others [2001] HKEC 1087, CFI. As to whether a room in the
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club is a public place, see HKSAR v Wong Lam Fong (unrep., 5 September 2008, HCMA 146/2008), CFI. See also Lawrenson v Oxford [1982] Crim L R 185, and 3164, below. The public gallery and the adjoining racetrack of the Hong Kong Jockey Club were held to be a public place for the purpose of the Public Order Ordinance even though members of the public were denied access to the racetrack on a racing day and the racetrack was regarded as a private area by the Jockey Club: HKSAR v Pearce [2005] 4 HKC 105. See also Cawley v Frost [1976] 1 WLR 1207, DC (Eng), which involved a football ground.
III. PUBLIC MEETINGS, GATHERINGS AND PROCESSIONS General

3137
Part III of the Public Order Ordinance (Cap 245) contains provisions for the control of public meetings, gatherings and processions. The present provisions are controversial not only because they were enacted by the Provisional Legislative Council of the HKSAR but also because they were enacted to replace provisions substituted in 1995 for the purpose of ensuring compliance with the Hong Kong Bill of Rights, such provisions having been declared by the Standing Committee of the National Peoples Congress in February 1997 to be inconsistent with the Basic Law and not adopted as laws of the HKSAR. In effect, the notification system under the 1995 provisions was replaced by an authorization system under the present provisions which permits public meetings or public processions to take place only if the police have been notified in advance and have not prohibited or taken objection to the holding or taking place of the meeting or procession. The present provisions provide for the indictable offences in relation to unauthorized under the same for public meetings and public processions. The Court of Final Appeal upheld the constitutionality of the present statutory requirement for notification of public meetings and public processions in HKSAR v Leung Kwok Hung (2005) 8 HKCFAR 229, [2005] 3 HKLRD 164 but held that the statutory discretion of the Commissioner of Police to restrict the right of peaceful assembly for the purpose of public order (ordre public) did not satisfy the constitutional requirement of prescribed by law. Cf Director of Public Prosecutions v Haw [2008] 1 WLR 379, DC (Eng); R (Singh) v Chief Constable of West Midlands Police [2007] All ER 297, CA (Eng); Blum v Director of Public Prosecutions [2006] EWHC 3209 (Admin); Abdul & Ors v Director of Public Prosecutions [2011] EWHC 247 (Admin).Further, the Public Order Ordinance also prohibits disorderly conduct in public places and proposing violence at a public gathering. Whether or not a public meeting, gathering or procession is held or takes place in accordance with the Public Order Ordinance does not absolve the participants from complying with the provisions of another Ordinance, since s 17G of the Public Order Ordinance provides that Part III of the Public Order Ordinance must be construed as being in addition to and not in derogation of the provisions of any Ordinance, and nothing in that Part relating to any matter may affect the liability of any person to comply with any provision of any Ordinance in respect of the same matter. One such matter is the prohibition of obstruction in public places under the Summary Offences Ordinance (Cap 228). Another matter is the licensing control under the Places of Public Entertainment Ordinance (Cap 172), which addresses issues arising from crowd control, structural safety, hire hazards, mechanical and electrical safety as well as sanitary hygiene, for the purpose of protecting the safety of the members of the public who attend the event held at the place of public entertainment and to avoid disorder in such a place. In T v Commissioner of Police (unrep., HCAL 102/2011, [2012] HKEC 984), the Court of First Instance held that this Ordinance applies to an organized public entertainment held at a public place like part of a street or other pedestrianized area where the organizer does not have exclusive right of occupation; and that the application of the Ordinance to public demonstrations is not inconsistent with the constitutionally protected freedom of expression and right to public demonstration under Article 27 of the Basic Law and Article 17 of the Hong Kong Bill of Rights.
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Public Meetings, Gatherings and Processions A. Public Order Ordinance (Cap 245), Part II (1) Statute
Public Order Ordinance (Cap 245), ss 617
3139
General powers of the Commissioner of Police 6.(1) If the Commissioner of Police reasonably considers it to be necessary in the interests 3138 of national security or public safety, public order (ordre public) 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 and specify the route by which, and the time at which, any public procession may pass. (2) The Commissioner of Police may, if he reasonably considers it to be necessary to prevent an imminent threat to the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others, in such manner as he may think fit, 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: (a) public places; or (b) places other than public places if such music, human speech or sound is directed towards persons in public places. (3) The Commissioner of Police may give such orders as he reasonably considers necessary to achieve the purpose mentioned in sub-sections (1) and (2).
The expressions public safety, public order (ordre public) and the protection of the rights and freedoms of others are interpreted in the same way as under the International Covenant on Civil and Political Rights as applied to Hong Kong, and the expression national security means the safeguarding of the territorial integrity and the independence of the Peoples Republic of China: Public Order Ordinance (Cap 245) s 2(2). In so far as the expression public order (ordre public) is applied as a word for the exercise of discretion of the Commissioner of Police under the Public Order Ordinance to protect the right to peaceful assembly, that expression is held to mean only public order (in the law and order sense, ie the maintenance of public order and prevention of public disorder): Leung Kwok Hung & Others v HKSAR [2005] 3 HKLRD 164, CFA. As to the meaning of public gathering and public procession, see 3151, below. As to the meaning of public place, see 3136, above. Refusal or wilful neglect to obey an order given under section 6 is an offence punishable by a fine of HK$10,000 and imprisonment for 12 months: Public Order Ordinance (Cap 245) section 17A(1). A certificate purporting to be under the hand of the Commissioner of Police specifying the terms and date of an order given under section 6 is prima facie evidence of such matter contained in such certificate in all legal proceedings: s 17F Public Order Ordinance.
Regulation of public meetings 7.(1) Subject to this Ordinance, a public meeting may take place if, but only if, 3139 (a) the Commissioner of Police is notified under section 8 of the intention to hold the meeting; and (b) the holding of the meeting is not prohibited by the Commissioner of Police under section 9. (2) This section shall not apply to: (a) a meeting of not more than 50 persons; (b) a meeting in private premises (whether or not the public or any section of the public are permitted to attend) where the attendance at the meeting does not exceed 500 persons (c) a meeting in any school registered or provisionally registered or exempted under the Education Ordinance (Cap 279), or in any college registered under the Post Secondary Colleges Ordinance (Cap 320), or in any educational establishment established by any Ordinance, if:
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(i) the meeting is organized or approved by an accredited society or similar body of such school, college or educational establishment; and (ii) the meeting is held with the consent of the management of such school, college or educational establishment in accordance with the terms of that consent, whether or not the public or any section of the public are permitted to attend.
As to the meaning of public meeting, see 3151, below. As to the meaning of meeting, see 3136, above.
3140
Notification of public meetings 8.(1) For the purposes of section 7, notice of the intention to hold a public meeting shall be given in writing to the Commissioner of Police: (a) not later than 11 am on the same day of the week in the preceding week as the day on which the meeting is intended to be held; or (b) where the last day for giving notice under paragraph (a) would fall on a general holiday, not later than 11 am on the first day immediately preceding that day which is not a general holiday. (2) Notwithstanding subsection (1), the Commissioner of Police may, and shall in any case where he is reasonably satisfied that earlier notice could not have been given, accept shorter notice than is specified in that subsection. (3) In cases where the Commissioner of Police has decided not to accept shorter notice than is specified in subsection (1), he shall as soon as is reasonably practicable inform in writing the person purporting to give the notice of his decision and the reasons why the shorter notice is not acceptable. (4) Notice under this section shall be given by being delivered in person by the person giving it, or by any person on his behalf, to the officer in charge of a police station, and shall contain particulars of the following matters: (a) the name, address and telephone number of: (i) the person organizing the meeting and any society or organisation promoting or connected with the holding of the meeting; and (ii) a person able to act, if necessary, in place of the organizer for the purpose of section 11(1)(a); (b) the purpose and subject-matter of the meeting; (c) the date, location, time of commencement and duration of the meeting; (d) an estimate by the person organizing the meeting of the number of people expected to attend the meeting. (5) The Commissioner of Police shall issue written acknowledgment of receipt of notice under this section to the person giving or delivering the notice.
As to the meaning of public meeting, see 3151, below. As to the meaning of meeting, see 3136, above. Section 17A(d) prohibits the making of any announcement or publication of any advertisement or notice, whether in printed or other form, or in any other manner the advertising or publicising of a public meeting (other than one referred to in s 7(2)) which has not been notified under s 8 or notice of which under s 8 was given to the Commissioner of Police less than 24 hours previously (excluding general holidays). The penalty for this offence is a fine of HK$10,000 and imprisonment for 12 months.
3141
Power of Commissioner of Police to prohibit notified public meeting 9.(1) Subject to this section, the Commissioner of Police may prohibit the holding of any public meeting notified under section 8 where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others. (2) Notice of a prohibition under subsection (1) shall be given: (a) in writing to the person who gave notice under section 8 or to any person named in that notice for the purposes of section 8(4)(I)(i); or (b) by publication in writing in such manner, or by posting a notice of the prohibition in such place, as the Commissioner of Police may think fit, and such notice shall state the ground or grounds on which the prohibition is considered to be necessary and the reasons for the Commissioners opinion as to those grounds. (3) The power conferred by subsection (1) shall not be exercised in respect of any public meeting notified under section 8
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Public Meetings, Gatherings and Processions
3144
(a) where notice is given in accordance with section 8(1), at any time later than 48 hours; or (b) where shorter notice of 72 hours or more is accepted by the Commissioner of Police pursuant to section 8(2), at any time later than 24 hours, prior to the time of commencement of the meeting as so notified. (4) The Commissioner of Police shall not exercise the power conferred by subsection (1) to prohibit the holding of a public meeting in any case where he reasonably considers that the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others could be met by the imposition of conditions under section 11(2).
As to the meaning of public meeting, see 3151, below. 3142 As to the meaning of meeting, see 3136, above. As to the meaning of public order (ordre public), see 31 38, above. Section 17A(d) prohibits the making of any announcement or publication of any advertisement or notice, whether in printed or other form, or in any other manner the advertising or publicising of a public meeting (other than one referred to in s 7(2)) which is prohibited under s 9 and which prohibition has not been reversed on appeal. The penalty for this offence is a fine of HK$10,000 and imprisonment for 12 months. A certificate purporting to be under the hand of the Commissioner of Police specifying the terms and date of a prohibition under s 9 is prima facie evidence of such matter contained in such certificate in all legal proceedings: s 17F Public Order Ordinance.
Requirements and conditions applying to public meetings 11.(1) At every public meeting 3143 (a) there shall be present throughout the meeting either the person who organized the meeting or, if he is not present, a person nominated by him to act in his place; (b) good order and public safety shall be maintained throughout the meeting; (c) the control of any amplification device that is used in such a manner that it causes a noise that would not be tolerated by a reasonable person shall, if so required by a police officer, be surrendered to the police officer for the duration of the meeting. (2) The Commissioner of Police may, where he reasonably considers it necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others, impose conditions in respect of any public meeting notified under section 8; except that if the meeting is to take place in a designated public area the Commissioner may, in so far as the interests of public order are concerned, only impose conditions relating to the time at which such a meeting may be held. (3) Notice of any condition imposed pursuant to subsection (2) shall be given in writing to the person by whom the public meeting has been notified or to some other person concerned in the holding, convening, organizing or forming of the meeting and shall state the reasons why such condition is considered necessary. (4) The power conferred by subsection (2) to impose conditions includes a like power to amend any such condition previously imposed and reference in this Ordinance to a condition imposed under or pursuant to subsection (2) shall, except where the context otherwise requires, include reference to an amendment to such a condition pursuant to this subsection. (5) Every person who organizes a public meeting, or any person acting in place of such person for the purpose of subsection (1)(a), shall comply forthwith with any direction given to him by a police officer for ensuring compliance with or the due performance of any of the requirements of subsection (1) or any conditions imposed under subsection (2). (6) In this section (a) meeting includes the period from first assembly to final dispersal of a meeting; and (b) references to a public meeting do not include references to a meeting referred to in section 7(2).
As to the meaning of public order (ordre public), see 3138, above. 3144 Designated public areas are areas designated by the Chief Executive under s 10 of the Public Order Ordinance by order in the Gazette; see the Public Order Ordinance (Designated Public Areas) (Consolidation) Order (Cap 245 sub leg F). If the public meeting is held in private premises, the owner or occupier of the premises, any person who organises or assists in the organization of the meeting is under a
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duty to comply with the restrictions and requirements under or imposed by any safety or fire prevention legislation: s 12 Public Order Ordinance. Section 17A(1)(b) makes it an offence for any person to knowingly contravene or suffer or permit any person so to contravene any requirement imposed by s 11(1) in respect of any public meeting, and carries the penalty of a fine of HK$10,000 and imprisonment for 12 months. Section 17A(1A) makes it an offence to contravene without reasonable excuse s 11(5) and carries the penalty of a fine of HK$5,000 and imprisonment for 12 months. A certificate purporting to be under the hand of the Commissioner of Police specifying any conditions imposed under s 11(2) is prima facie evidence of such matter contained in such certificate in all legal proceedings: s 17F Public Order Ordinance.
3145
Regulation of public processions 13.(1) A public procession may take place if, but only if (a) the Commissioner of Police is notified under section 13A of the intention to hold the procession; (b) the Commissioner of Police has notified under section 14(4) the person that he has no objection to the procession taking place or is taken to have issued a notice of no objection; (c) the requirements under section 15 are complied with. (2) This section shall not apply to (a) any public procession which is not a procession on a public highway or thoroughfare or in a public park; (b) any public procession consisting of not more than 30 persons; (c) any public procession of a nature or description specified by the Commissioner of Police by notice in the Gazette.
As to the meaning of public procession and procession, see 3151, below.
3146
Notification of public processions 13A.(1) For the purposes of section 13, notice of the intention to hold a public procession shall be given in writing to the Commissioner of Police (a) in the case of a public procession held solely for the purposes of a funeral at which the body is present, not later than 24 hours prior to the forming of the procession; (b) in any other case (i) not later than 11am on the same day of the week in the preceding week as the day on which the procession is intended to be held; or (ii) where the last day for giving notice under subparagraph (i) would fall on a general holiday, not later than 11am on the first day immediately preceding that day which is not a general holiday. (2) Notwithstanding subsection (1), the Commissioner of Police may, and shall in any case where he is reasonably satisfied that earlier notice could not have been given, accept shorter notice than is specified in that subsection. (3) In cases where the Commissioner of Police has decided not to accept shorter notice than is specified in subsection (1), he shall as soon as is reasonably practicable inform in writing the person purporting to give the notice of his decision and the reasons why the shorter notice is not acceptable. (4) Notice under this section shall be given by being delivered in person by the person giving it, or by any person on his behalf, to the officer in charge of a police station, and shall contain particulars of the following matter (a) the name, address and telephone number of: (i) the person organizing the procession and any society or organisation promoting or connected with the holding of the procession; and (ii) a person able to act, if necessary, in place of the organizer for the purpose of section 15(1)(a); (b) the purpose and subject-matter of the process; (c) the date, precise route, time of commencement and duration of the process; (d) in respect of any meeting to be held in conjunction with the procession, the location, time of commencement and duration of the meeting; and (e) an estimate by the person organizing the procession of the number of people expected to attend the process.
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(5) The Commissioner of Police shall issue written acknowledgment of receipt of notice under this section to the person giving or delivering the notice.
As to the meaning of public procession and procession, see 3151, below. Section 17A(d) prohibits the making of any announcement or publication of any advertisement or notice, whether in printed or other form, or in any other manner the advertising or publicising of a public procession (other than one referred to in s 13(2)) which has not been notified under s 13A or notice of which under s 13A was given to the Commissioner of Police less than 24 hours previously (excluding general holidays). The penalty for this offence is a fine of HK$10,000 and imprisonment for 12 months.
Right of Commissioner of Police to object to public procession 14.(1) Subject to subsection (5), the Commissioner of Police may object to a public 3147 procession being held if he reasonably considers that the objection is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others. (2) If the Commissioner of Police objects to the public procession being held he shall as soon as is reasonably practicable and within the time limit specified under this Ordinance: (a) notify in writing the person who gave notice under section 13A or a person named for the purposes of section 13A(4)(a)(i) of his objection and reasons; or (b) publish a written notice of objection and reasons in the manner he thinks fit; (c) post a written notice of objection and reasons in the place he thinks fit. (3) The Commissioner of Police shall not issue a notice of objection for a public procession: (a) if notice of a procession is given in accordance with section 13A(1)(b), later than 48 hours before the notified commencement time of the procession; (b) if shorter notice of 72 hours or more is accepted by the Commissioner of Police under section 13A(2), later than 24 hours before the notified commencement time of the process; (c) if shorter notice of less than 72 hours is accepted by the Commissioner of Police under section 13A(2), later than the notified commencement time of the procession, this subsection does not apply to a procession held solely for a funeral as referred to in section 13A(1). (4) If the Commissioner of Police does not object to a public procession being held he shall notify the person who gave notice under section 13A or a person named for the purposes of section 13A(4)(a)(i) in writing of his having no objection as soon as is reasonably practicable and within the time limited for him to give notice of objection under this Ordinance. If the Commissioner does not notify, post or publish his having an objection in accordance with subsection (2) and within the time limit specified under this Ordinance, the Commissioner is taken to have issued a notice of no objection for the public process. (5) The Commissioner of Police shall not exercise his right under subsection (1) to object to holding of a public procession if he reasonably considers that the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others could be met by imposing conditions under section 15(2).
As to the meaning of public procession and procession, see 3151, below. As to the meaning of public order (ordre public), see 3138, above. Section 17A(d) prohibits the making of any announcement or publication of any advertisement or notice, whether in printed or other form, or in any other manner the advertising or publicising of a public procession (other than one referred to in s 13(2)) which is prohibited under s 14 and which objection has not been reversed on appeal. The penalty for this offence is a fine of HK$10,000 and imprisonment for 12 months. A certificate purporting to be under the hand of the Commissioner of Police specifying the terms and date of an objection under s 14 is prima facie evidence of such matter contained in such certificate in all legal proceedings: s 17F Public Order Ordinance.
Requirements and conditions applying to public processions 15.(1) At every public procession: 3148 (a) there shall be present throughout the procession either the person who organized the procession or, if he is not present, a person nominated by him to act in his place; (b) good order and public safety shall be maintained throughout the process;
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(c) the control of any amplification device that is used in such a manner that it causes a noise that would not be tolerated by a reasonable person shall, if so required by a police officer, be surrendered to the police officer for the duration of the procession. (2) The Commissioner of Police may, where he reasonably considers it necessary in the interests of national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others, impose conditions in respect of any public procession notified under section 13A, and notice of any condition so imposed shall be given in writing to the person by whom such public procession is so notified or to some other person concerned in the holding, convening, organizing or forming of the procession and shall state the reasons why such condition is considered necessary. (3) The power conferred by subsection (2) to impose conditions includes a like power to amend any such condition previously imposed and reference in this Ordinance to a condition imposed under or pursuant to subsection (2) shall, except where the context otherwise requires, include reference to an amendment to such a condition pursuant to this subsect. (4) Every person who organizes a public procession, or any person acting in place of such person for the purpose of subsection (1)(a), shall comply forthwith with any direction given to him by a police officer for ensuring compliance with or the due performance of any of the requirements of subsection (1) or any conditions imposed under subsection. (5) In this section: (a) procession includes the period from first assembly to final dispersal of a procession; and (b) references to a public procession do not include references to a procession referred to in section 13(2).
3149
As to the meaning of public procession and procession, see 3151, below. As to the meaning of public order (ordre public), see 3138, above. Section 17A(1)(b) makes it an offence for any person to knowingly contravene or suffer or permit any person so to contravene any requirement imposed by s 15(1) in respect of any public procession and carries the penalty of a fine of HK$10,000 and imprisonment for 12 months. Section 17A(1A) makes it an offence to contravene without reasonable excuse s 15(4) and carries the penalty of a fine of HK$5,000 and imprisonment for 12 months. A certificate purporting to be under the hand of the Commissioner of Police specifying any conditions imposed under s 15(2) is prima facie evidence of such matter contained in such certificate in all legal proceedings: s 17F Public Order Ordinance.
Police powers over meetings, processions and gatherings 17.(1) Any police officer may prevent the holding of, stop or disperse (a) any public meeting which takes place in contravention of s 7 or in regard to which any requirement, or any condition imposed under s 11 is being or has been contravened; (b) any public procession which takes place in contravention of s 13 or in regard to which any requirement, or any condition imposed under s 15 is being or has been contravened. (2) Any police officer of or above the rank of inspector may: (a) prevent the holding of, stop, disperse or vary the place or route of any public gathering, other than a public gathering exclusively for religious purposes, whether or not the public gathering is one to which s 7 or 13 applies; or (b) stop or disperse any public gathering exclusively for religious purpose or any meeting convened or held in any premises or place which is not a public place or any gathering or procession whatsoever or wheresoever, if he reasonably believes that the same is likely to cause or lead to a breach of the peace. (3) For the purpose of exercising the powers conferred by subss (1) and (2) respectively, a police officer and a police officer of or above the rank of inspector may give or issue such orders as he may consider necessary or expedient, and such police officer and any other police officer may (a) use such force as may be reasonably necessary to prevent the holding of, stop or disperse, as the case may be, the public meeting, public procession, public gathering or other meeting, gathering or procession; and (b) enter any premises or place whatsoever in which any meeting is taking place or any persons are gathered.
3150
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(4) If a police officer of or above the rank of inspector has reason to believe that a public meeting or public procession is likely to take place or form in any public place in contravention of s 7 or 13, he may cause access to that public place and to any other public place adjacent thereto to be barred and to be closed to the public or to any person or class of persons for such time as may be necessary to prevent the public meeting or public procession taking place. (5) The closure of any public place under subs (4) shall be notified by means of notices exhibited, or physical barriers erected, at the places of access thereto, or by oral public announcement in the vicinity thereof, or in such other manner as the police officer aforesaid may think fit. (6) Any police officer may use such force as may be reasonably necessary to prevent any person from entering or remaining in any public place to which access has been closed to him under this section.
As to the meaning of public meeting, public procession and public gathering, see 3151, below. As to the meaning of public place, see 3136, above. As to the meaning of breach of the peace, see 3110, above. The assessment of the risk of a breach of the peace is one in terms of proximity both in place and time; see Moss v McLachlan [1984] JPR 167. Section 17A(1)(c) makes it an offence for any person to, without the permission of any police officer on duty there, knowingly enter or remain in a public place to which access has been closed to him under s 17(4), and carries the penalty of a fine of HK$10,000 and imprisonment for 12 months. Where police officers impose restrictions and directions in respect of a public procession or public meeting on the grounds of public safety and public order, they may enforce regulatory measures on the basis of the powers under Part III of the Public Order Ordinance and s 10(e) of the Police Force Ordinance (Cap 232): HKSAR v To Kwan Hang (unrep., HCMA 313/2010), CFI. As to the lawfulness of adopted measures with respect to a public meeting or a public procession against the liberty of movement and the freedom from deprivation of liberty: see Saadi v United Kingdom (2008) 47 EHRR 17, ECtHR GC; and Austin & Ors v United Kingdom (unrep., App Nos 39692/09, 40713/09, 41008/09, 15 March 2012), ECtHR GC. Apart from the statutory power, the common law also authorizes every citizen (whether policeman or not) in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will short of arresting him: Albert v Lavin [1981] 3 All ER 878, HL.
Public Order Ordinance (Cap 245), s 17A(2), (3) Offences in relation to sections 6, 7, 8, 9, 11, 13, 13A, 14, 15 and 17 17A.(2) Where 3151 (a) any public meeting or public procession takes place in contravention of section 7 or 13; (b) three or more persons taking part in or forming part of a public gathering refuse or wilfully neglect to obey an order given or issued under section or (c) three or more persons taking part in or forming part of a public meeting, public procession or public gathering, or other meeting, procession or gathering of persons refuse or wilfully neglect to obey an order given or issued under section 17(3), the public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, as the case may be, shall be an unauthorized assembly. (3) Where any public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, is an unauthorised assembly by virtue of subsection: (a) 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; and (b) every person:
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(i) 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 referred to in subsection (2)(a); or (ii) continues or attempts to continue to hold or conduct, or to direct otherwise than for the purpose of securing obedience to an order given or issued under section 6 or 17(3), any public gathering such as is referred to in subsection (2)(b), or any public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, referred to in subsection (2)(c), after the same has become an unauthorised assembly as aforesaid, shall be guilty of an offence and shall be liable: (i) on conviction on indictment, to imprisonment for five years; and (ii) on summary conviction, to a fine of HK$5,000 and to imprisonment for three years.
Section 2(1) of the Public Order Ordinance (Cap 245) defines: procession to mean a procession organised as such for a common purpose, and includes any meeting held in conjunction with such procession; public gathering to mean a public meeting, a public procession and any other meeting, gathering or assembly of 10 or more persons in any public place; public meeting to mean any meeting held or to be held in a public place; and public procession means any procession in, to or from a public place. An assembly of persons in a public place did not cease to be a public meeting when the persons gathered there soon entered into coaches: Chow Shui v R [1979] HKLR 275, HC. Whether a number of moving vehicles constitute a public procession is a question of fact to be decided according to the circumstances of the individual case and there may be cases where the mere similarity, proximity or marked abundance of vehicles may in itself be sufficient: Chow Shui v R. As to the meaning of public place, see 3136, above. As to the use of force by police officers under the Public Order Ordinance, see 3114, above. A public meeting may be held on a highway without it being unlawful per se, even if it might amount to an obstruction of that highway: Burden v Rigler [1911] 1 KB 337, DC (Eng). The present statutory requirement for notification of public meetings and public processions was constitutional: Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, CFA.
(2) Indictment
3152
Organizing an unauthorised assembly, contrary to sections 17A(3)(b)(i) of the Public Order Ordinance (Cap 245).
AB on the _____ day of _______ at _______, organised a public procession which took place in contravention of section 13 of the Public Order Ordinance (Cap 245), after such a public procession has become an unauthorised assembly under section 17A(2)(a) of the Public Order Ordinance (Cap 245).
A charge of unauthorised assembly was not bad for duplicity if the events of the day comprised one single continuous activity and did not give rise to separate transactions: Chow Shui & Others v R, above.
(3) Sentence
3153
The maximum penalty of imprisonment prescribed for summary conviction is above the general sentencing jurisdiction of a magistrate under the Magistrates Ordinance (Cap 227). Section 17A(3) of the Public Order Ordinance (Cap 245) creates two distinct offences. The offence under sub-section (3)(a) relates to the taking part or the continuing
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to take part in an authorised assembly after the public meeting, gathering or procession has become an unauthorised assembly without lawful authority or reasonable excuse. Genuine desire to present a petition in circumstances where it was unnecessary to present it en masse and not so urgent to preclude the seeking of a licence was not a reasonable excuse: Chow Shui & Others v R, above. The other offence created by section 17A(3) of the Public Order Ordinance seeks to penalise the holders, convenors, organisers of the unauthorised assembly, and also those who assisted in the holding, convening, organising, forming or collecting thereof.
Public Order Ordinance (Cap 245), s 17B 17B.(1) Any person who at any public gathering acts in a disorderly manner for the 3154 purpose of preventing the transaction of the business for which the public gathering was called together or incites others so to act shall be guilty of an offence and shall be liable on conviction to a fine of HK$5,000 and to imprisonment for 12 months. (2) Any person who in any public place behaves in a noisy or disorderly manner, or uses, or distributes or displays any 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, shall be guilty of an offence and shall be liable on conviction to a fine of HK$5,000 and to imprisonment for 12 months.
As to the meaning of public gathering, see 3151, above. As to the meaning of disorderly manner, see 317, above. As to the meaning of incite, see 3670, below. As to the meaning of public place, see 3136, above. The mens rea of the offence of behaving in a disorderly manner in a public place is 3155 that the defendant must have intended to commit the disorderly act: HKSAR v Tsui Chi Yung (unrep., HCMA 1051/2006, [2007] HKEC 628), CFI.
For the purpose of preventing transaction of the business for which the public gathering was called
In HKSAR v Chow Nok Hang & Anor (unrep., HCMA 193/2012, 20 July 2012), the 3155A Court of First Instance held that preventing within the meaning of section 17B(1) does not require a complete stop or interruption; a temporary stop due to an obstruction would suffice.
Noisy or disorderly manner

As to the meaning of disorderly, see 31-7 above. The court is entitled to look at the 3156 conduct of the defendants over a period of time and to decide if such conduct is disorderly. The finding of disorderly conduct in the end may be based on one act or on conduct over a period of time: HKSAR v Wong Ying Yu & Others [1997] HKLY 236, CFI. See also HKSAR v Sit Kwok Fun (unrep., 31 March 1998, HCMA 1112/1997), where a submission that a charge of disorderly conduct was duplicitous was rejected on the basis that the misconduct continued as one incident.
Threatening, abusive or insulting words

As to the meaning of insulting, see 317, above. The approach taken by the House 3157 of Lords in Brutus v Cozens, above, applies equally to abusive and threatening, and these words are also to be interpreted in their ordinary meaning. Cf Coleman v Power (2004) 220 CLR 1, HC Aust; Harvey v DPP, (2012) 176 JP 265.
With intent to provoke a breach of the peace

In HKSAR v Chow Nok Hang & Anor (unrep., HCMA 193/2012, 20 July 2012), the 3157A Court of First Instance held that where a person chose to attract attention of others to
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his cause for objection to further a public demonstration by insulting or extreme means, that person cannot, in the absence of any shouting of slogans or words to incite others, be said to have intended to provoke a breach of the peace.
Where by a breach of the peace is likely to be caused

3158
The likelihood of a breach of the peace being occasioned is a requirement of the offence under section 17B(2) and requires a specific finding: R v Kam Man Fai [1983] 1 HKC 614, HC. See also R v Chan Chun Ching [1989] 2 HKLR 311, HC; HKSAR v Yang You Ching [1997] HKLY 237, CFI; HKSAR v Morter (unrep., HCMA 1319 of 2001), CFI; HKSAR v Morter [2003] 2 HKLRD 510, CFI; HKSAR v Wong Chi Hung [2005] HKEC 1622 (unrep., HCMA 171 of 2005); HKSAR v Pearce [2006] 3 HKC 105, CFI; HKSAR v Lau Shui Ping & Ors (unrep., HCMA 730/2008), CFI. As to the meaning of breach of the peace, see 3110, above. A speaker must take his audience as he finds it and, if the words spoken to that audience were likely to provoke a breach of the peace, then he was guilty: Jordan v Burgoyne [1963] 2 QB 744. On the other hand, words of abuse directed to a police officer would not provoke the officer into violent retaliation and even abuse of the police in the presence of third parties did not ipso facto constitute incitement of those third parties to violence: R v Li Wai Kuen [19731976] HKC 346, HC; and HKSAR v Morter above. A similar consideration applies to security guards at the racecourse; see HKSAR v Pearce, above. The court must consider whether the persons witnessing the conduct of the accused at the scene were in fact restrained in their approach or disposition towards the disorderly conduct due to their duties or otherwise; and whether they would be in breach of the peace themselves by reason of the disorderly conduct of others: HKSAR v Chow Nok Hang & Anor (unrep., HCMA 193/2012, 20 July 2012), CFI.
Public Order Ordinance (Cap 245), s 17E
3159
Power of the Chief Executive to prohibit public gatherings 17E.(1) The Chief Executive in Council may, if he is satisfied that by reason of particular circumstances existing in Hong Kong or in any part thereof it is necessary for the prevention of serious public disorder to prohibit the holding of public gatherings in Hong Kong or any part thereof, prohibit the holding in Hong Kong or any part thereof of all public gatherings, or of any class of public gatherings, for such period not exceeding 3 months as may be specified. (2) Any person who: (a) takes part in the promotion, direction, organization or management of a public gathering which is held or intended to be held in contravention of a prohibition under this section; or (b) takes part in or attends, or incites any other person to take part in or attend, any such public gathering, shall be guilty of an offence and shall be liable on conviction to a fine of HK$5,000 and to imprisonment for three years.
As to the meaning of public gathering, see 3151, above.
B. Other Offences under the Public Order Ordinance (Cap 245)

3160
Power to prohibit flags, etc 3.(1) Any police officer of or above the rank of inspector may: (a) prohibit the display at a public gathering of any flag, banner or other emblem; (b) 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.
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(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 (a) enter any premises or place; and (b) 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 of HK$5,000 and to imprisonment for two years. (4) No prosecution for an offence under this section shall be instituted without the consent of the Secretary for Justice.
As to the meaning of public gathering, see 3151, above. As to the meaning of breach of the peace, see 3110, above.
Public Order Ordinance (Cap 245), s 26 Proposing violence at public gatherings 26.Any person who, without lawful authority, at any public gathering makes any statement, 3161 or behaves in a manner, which is intended or which he knows or ought to know is likely to incite or induce any person: (a) to kill or do physical injury to any person or to any class or community of persons; (b) to destroy or do any damage to any property; or (c) 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: (i) on conviction on indictment, to imprisonment for five years; and (ii) on summary conviction to a fine of HK$5,000 and to imprisonment for two years.
As to the meaning of public gathering, see 3151, above. As to the meaning of incite, see 3670, below.
C. Offences under The Summary Offences Ordinance (Cap 228)

Summary Offences Ordinance (Cap 228), s 4 Nuisances committed in public places, etc Any person who without lawful authority or excuse 3162 (17) organizes, provides equipment for, or participates in any collection of money or sale or exchange for donations of badges, tokens or similar articles in a public place except under and in accordance with a permit issued: (i) for a collection, sale or exchange for charitable purposes, by the Director of Social Welfare; or (ii) for a collection, sale or exchange for any other purpose, by the Secretary for Home Affairs; (23) plays at any game or pastime to the annoyance of the inhabitants or passers-by; or plays at any game or loiters in any public place, so as to obstruct the same or create a noisy assembly therein; (28) does any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place or to the shore of the sea, or to navigation, mooring or anchorage, transit or traffic; shall be liable to a fine of HK$500 or to imprisonment for three months.
A defendant charged with an offence under s 4 of the Summary Offences Ordinance who wishes to rely on the excerptions of lawful authority or excuse, is only required to discharge an evidential burden to adduce evidence in that respect for the court to consider: HKSAR v Lee Hing Kuen (unrep., HCMA 251/2010, [2010] CHKEC 578), CFI. See, in this connection, R v Fung Chi Wood [1991] HKLR 654 on the scope of the subs (17) offence.
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3163 Lawful authority

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Section 2(1) of the Summary Offences Ordinance (Cap 228) defines lawful authority to extend to and denote any permission which may be lawfully given by a public officer or department or by a private person. See also HKSAR v Pearce (unrep., HCMA 740/2009, [2009] HKEC 2058), CFI.
Lawful excuse
A lawful excuse embraces activities that are lawful in themselves, which may or may not be reasonable in all the circumstances: Hirst & Agu v Chief Constable of West Yorkshire [1987] Crim L R 330, DC (Eng). The prosecution has the burden of proving that the destruction was without lawful authority or excuse and a person cannot be said to be acting without lawful excuse if his conduct involved a reasonable use of the highway or public place. Whether any particular instance of obstruction goes beyond what is reasonable is a question of fact and degree, depending on all the circumstances, including its extent and duration, the time and place where it occurred and the purpose for which it was done. When the obstruction results from a peaceful demonstration, the constitutionally protected right to demonstrate is introduced into the equation and must be given substantial weight when assessing the reasonableness of the obstruction. The bounds of what is reasonable must not therefore be so narrowly defined as to devalue or unduly impair the ability to exercise the constitutional right: Yeung May Wan & Others v HKSAR [2005] 2 HKLRD 212, CFA. Cf Abdul & Ors v Director of Public Prosecutions [2011] EWHC 247 (Admin). Where a person reasonably believes that he is exercising a fundamental right such as the freedom of assembly, demonstration or expression in doing what he did, this, if proved, provides the basis for saying that he had the necessary lawful excuse: HKSAR v Yeung May Wan & Others [2004] 3 HKLRD 797, CA. If an act is unlawful in itself the question of whether or not it is reasonable does not arise. Therefore, where the accused chained themselves to a flagpole belonging to another without permission, they committed a trespass and an unlawful act. The question of whether it was reasonable for them to do so does not arise and the accused could not have had a lawful excuse for committing the act: HKSAR v Lau San Ching & Others [2004] 1 HKLRD 683, CFI.
Public place
3164
Section 2(1) of the Summary Offences Ordinance (Cap 228) defines public place to include all piers, thoroughfares, streets, roads, lanes, alleys, courts, squares, archways, waterways, passages, paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the government or of private persons. This definition was held not to admit of a department store: Chan Yuk Chun & Others v R [1965] HKLR 693. Cf HKSAR v Choi Chau Cheung & Another (unrep., 6 July 2004, HCMA 380/2004), which was concerned with a passage at the ground floor of a building connected via other similar passages to streets outside the building. It is submitted that the definition in s 2(1) of the Summary Offences Ordinance is inclusive and must be read together with the definition of public place in the s 3 of the Interpretation and General Clauses Ordinance (Cap 1), which means: (a) any public street or pier, or any public garden; and (b) 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 are permitted access. As to the meaning of public place under s 3 of the Interpretation and General Clauses Ordinance, see AG v Hui Shu Sang [1993] HKLY 285, HC; Wu Chee Ling v Urban Council [1996] 1 HKLR 282, HKSAR v Wong Yiu Wah & Others [2002] 1 HKC 527, CFI; HKSAR v Yeung Hin Kwong Stevens (unrep., HCMA 604/2008, [2008] CHKEC 1128), CFI.
Annoyance of the inhabitants or passers-by

3165
The character of an action may be such as to be likely to cause annoyance without the need to prove annoyance to one or more persons: see Lau Chiu v R [1967] HKLR 144, FC.
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Breach of Curfew
3168
Act whereby obstruction accrued to public place

One of the main limbs of the offence requires that there must be an act which 3166 directly or consequentially caused an obstruction to a public place. Any physical occupation of a road which interfered (to an extent which was more then de minimis) with the use of that road by others constitutes an obstruction: Yeung May Wan & Others v HKSAR [2005] 2 HKLRD 212, CFA. The prosecution must prove that the accused caused an obstruction and that obstruction was a deliberate obstruction as opposed to an accidental obstruction. The offence is made out once the accused, without lawful authority or excuse, did an act whereby an obstruction, whether directly or consequentially, may naturally have resulted in a public place: HKSAR v Lau San Ching & Others [2004] 1 HKLRD, 683, CFI. An element of the offence is whether the defendant knew that he was causing an obstruction to a public place: HKSAR v Fung Ka Keung Christopher & Another (unrep., 16 July 2002, HCMA 1014/2001, CFI).
Summary Offences Ordinance (Cap 228), s 4A Obstruction of public places 4A.Any person who without lawful authority or excuse sets out or leaves, or causes to be set 3167 out or left, any matter or thing which obstructs, inconveniences or endangers, or may obstruct, inconvenience or endanger, any person or vehicle in a public place shall be liable to a fine of HK$5,000 or to imprisonment for three months.
As to public place, see 3136, above. Section 4A of the Summary Offences Ordinance (Cap 228) makes the distinction between the case where obstruction, etc is to be proved and the case where obstruction, etc, need not be proved: Yau Bun v R [1964] HKLR 364, HC. A person could not be said to have caused something to be left unless it was proved either that he authorised it to be deposited or that he had knowledge that it had been deposited and failed to remove it: ibid. See R v Chu Chuen [1977] HKLR 73. In dealing with a charge under this section, only the affect of the particularised matter needs to be considered: HKSAR v Yeung May Wan & Others [2004] 3 HKLRD 797, CA. Again it may not be necessary to prove obstruction by evidence if the circumstances were sufficient; see Gill v Carson [1917] 2 KB 674; Wong Sang v R [1964] HKLR 883, HC; HKSAR v Yeung May Wan & Others (above).
IV. BREACH OF CURFEW

Public Order Ordinance (Cap 245), s 31 Curfew orders 31.(1) The Chief Executive may, if he is satisfied that it is necessary in the interests of 3168 public order so to do, by order (hereinafter referred to as a curfew order) direct that, within such area and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, save under and in accordance with a permit issued by the Commissioner of Police under subsection (2), remain indoors. (2) (2A) (3) A curfew order shall: (a) come into force at such time as may be specified therein or, if no time is so specified, immediately upon the making thereof by the Chief Executive; (b) be published in the Gazette as soon as may be reasonably practicable after the making thereof; and (c) remain in force for the period specified therein or until earlier cancelled by the Chief Executive in accordance with subsection (4). (4) The Chief Executive may vary or cancel a curfew order by order which shall come into force and be published in like manner as that provided in subsection (3) for a curfew order.
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(5) Any person who contravenes: (a) any of the provisions of a curfew order; or (b) any condition to which a permit issued under subsection (2) is subject, shall be guilty of an offence and shall be liable on summary conviction to a fine of HK$5,000 and to imprisonment for two years. (6) (7) Whenever the Chief Executive considers it necessary, a curfew order may provide that subsection (6) shall not apply in the case of that curfew order with respect to such of the persons specified in that subsection as may be prescribed by the curfew order.
Sub-sections (2) and (2A) make provision for the issuing and cancellation of permits by the Commissioner of Police and sub-section (6) sets out classes of persons who are not subject to or obliged to comply with a curfew order when on duty or proceeding to or from duty. Breach of a curfew order is a strict liability offence. The offence is committed by 3169 being outdoors at the time when the curfew order comes into force and taking part in some other illegal activity is not a necessary ingredient: Lo Yim Kai & Others v R [1966] HKLR 414, HC; Kwan Yiu Wing v R [1966] HKLR 752, HC.
IVA. CLOSED AREAS

Public Order Ordinance (Cap 245) s 36
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Closed areas 36.(1) The Chief Executive may, where he reasonably believes that it is necessary for the protection of national security or public safety, or the protection of public order or public health, by order declare any area or place to be a closed area. (2) An order made under subsection (1) shall come into force at such time as may be specified therein or, if no time is so specified, immediately upon the making thereof by the Chief Executive and shall be published in the Gazette as soon as may be reasonably practicable after the making thereof. (3) The Commissioner of Police and such other person as may be authorised in any order made under subsection (1) may cause a closed area to be closed by the erection of barriers or otherwise.
The following orders declaring an area a closed area are in force: Frontier Closed Area Order (Cap 245 sub leg A); Military Installations Closed Areas Order (Cap 245 sub leg B); Marine Closed Area (Consolidation) Order (Cap 245 sub leg E). Further, s 4 of the Shenzhen Bay Port Hong Kong Port Area Ordinance (Cap 593) provides that for the purposes of the Public Order Ordinance and any other enactment that applies to a closed area, the Hong Kong Port Area is a closed area within the meaning of the Public Order Ordinance: see HKSAR v Wong Jarn Kun (unrep., HCMA 406/2011,11 July 2012), CFI. As to the Shenzhen Bay Port Hong Kong Port Area, see 2155B above.
Public Order Ordinance (Cap 245) s 38
3169B
Prohibition on entering or leaving closed area without permit 38.(1) Subject to subsection (2), any person who (a) enters or leaves a closed area save under and in accordance with a permit issued under section 37; or (b) contravenes any condition to which any such permit is subject, shall be guilty of an offence and shall be liable on summary conviction to a fine of $5000 and to imprisonment for 2 years. (2)
[Sub-section (1) was amended by the Public Order (Amendment) Ordinance 1983 (33 of 1983).] Sub-section (2) provides that the prohibition in subs. (1)(a) does not apply to police officers, auxiliary police officers, members of the military forces stationed in the Hong
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Making of Threats
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Kong Special Administrative Region by the Central Peoples Government of the Peoples Republic of China, and members of the Government Flying Service when on duty or proceeding to or from duty. It also provides that if the closed area is one in respect of which a notice is published under s 38A(1) of the Public Order Ordinance (Cap 245) where the Commissioner of Police grants permission of any class or category specified in the notice to enter or leave the closed area during such times and subject to such exceptions, conditions or restrictions as are specified in the notice, the prohibition in subs. (1)(a) does not apply to any person to whom the notice applies and who complies with the terms thereof. The Commissioner of Police has granted such permission in relation to the Frontier Closed Area under the Frontier Closed Area (Permission to Enter) Notice (Cap 245 sub leg H) for passenger traffic and in relation to the Hong Kong Section of the Shenzhen Bay Port Hong Kong Port Area under the Shenzhen Bay Port Hong Kong Port Area (Permission to Enter) Notice (Cap 245 sub leg K) for vehicular and passenger traffic on conditions. Permits allowing persons to enter and leave a closed area are issued under s 37 of the Public Order Ordinance (Cap 245) and, in the case of a closed area occupied by the military forces stationed in the Hong Kong Special Administrative Region by the Central Peoples Government of the Peoples Republic of China or for other purposes of the Central Peoples Government, by the commanding officer of such military forces or any commissioned officer in such military forces authorised by him for that purpose; and, in the case of any other closed area, by the Commissioner of Police or his delegate or by such authority or person as may be specified for that purpose by the Chief Executive in the order made under s 36 of the same Ordinance. A permit issued under s 37 will be subject to such conditions as the person by whom it is issued thinks fit, and may be cancelled by such person at any time. As to the power of arrest, see s 39 of the Public Order Ordinance (Cap 245), which enlarged the power to enable any member of the military forces stationed in the Hong Kong Special Administrative Region by the Central Peoples Government of the Peoples Republic of China, or any guard to make arrests in a closed area. Any person so arrested must be delivered into the custody of a police officer as soon as practicable. Section 39 also empowers a police officer of or above the rank of inspector, with the assistance of such other police officers as may be necessary, to detain and remove persons who are in a closed area.
V. MAKING OF THREATS A. General

A range of criminal offences have as an ingredient the making of threats or the use of 3170 threatening behaviour. Section 18 of the Public Order Ordinance (Cap 245) refers to, inter alia, intimidating conduct and sections 17B(2) and 23 of the same refers to threats or threatening words. All these sections are set out, above, in this Chapter. Apart from these offences under the Public Order Ordinance (Cap 245), the principal criminal offences involving the making of threats are threats to kill, contrary to the Offences Against the Person Ordinance (Cap 212) (above, 20124), threats to destroy or damage property, contrary to the Crimes Ordinance (Cap 200) (above, 2425), blackmail, contrary to the Theft Ordinance (Cap 210) (above, 22204), and false threats of terrorist acts, contrary to the United Nations (Anti-terrorism Measures) Ordinance (Cap 575) (above, 2637). See also s 24 of the Crimes Ordinance (Cap 200).
B. Bomb Hoaxes
Public Order Ordinance (Cap 245), s 28 Bomb hoaxes 28.(1) Any person who: (a) places any article or substance in any place whatever; or
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(b) dispatches any article or substance by post, rail, sea, air or any other means whatever of sending things from one place to another, with the intention of inducing some other person to believe that it is likely to explode or ignite and thereby cause personal injury or damage to property shall be guilty of an offence. (2) Any person who communicates any information which he knows or believes to be false to another person with the intention of inducing him or any other person to believe that a bomb or other article, substance or thing liable to explode or ignite is present in any place or location whatever shall be guilty of an offence. (3) For a person to be guilty of an offence under subsection (1) or (2) it shall not be necessary for him to have any particular person in mind as the person in whom he intends to induce the belief mentioned in those subsections. (4) Any person guilty of an offence under this section shall be liable (a) on summary conviction, to a fine of HK$50,000 and to imprisonment for three years; and (b) on conviction on indictment, to a fine of HK$150,000 and to imprisonment for five years.
As to the nature of the intention prescribed for the offence in sub-section (1), see HKSAR v Yip Chi Ming [2006] CHKEC 477, CFI. The words, There is a bomb, said to the operator on a 999 call, were sufficient to give rise to an offence under sub-section (2) and it was not a necessary ingredient of the offence that the person communicating the false information should identify a place or location: R v Webb, The Times, 19 June 1995, CA (Eng). The words, Please do not move, or bear the consequences yourself , written on a cardboard placed on top of a box that was placed on the street, was sufficient to justify an inference that the person communicating the false information had the requisite intent: HKSAR v Yip Chi Ming (supra).
VI. DESECRATION OF FLAGS AND EMBLEMS

National Flag and National Emblem Ordinance (116 of 1997), s 7
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7.A person who desecrates the national flag or national emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable on conviction to a fine at level five and to imprisonment for three years.
As to level fines, see section 113B and Schedule 8 of the Criminal Procedure Ordinance (Cap 221). A level 5 fine stands current at HK$50,000. Section 2 of the National Flag and National Emblem Ordinance (116 of 1997) defines national emblem to mean the national emblem of the Peoples Republic of China adopted by the Eighth Session of the Central Peoples Government Committee on 28 June 1950 with specifications set out in Schedule 1 of the same; and national flag to mean the national flag of the Peoples Republic of China adopted by resolution of the First Plenary Session of the Chinese Peoples Political Consultative Conference on 27 September 1949 with specifications set out in Schedule 2 of the same. Further, section 8 of the same Ordinance provides that a copy of the national flag or national emblem that is not an exact copy but that so closely resembles the national flag or national emblem as to lead to the belief that the copy in question is the national flag or national emblem is taken to be the national flag or national emblem for the purposes of the Ordinance. Section 7 of the National Flag and National Emblem Ordinance (116 of 1997) was held to be a justified restriction on the rights to freedom of expression guaranteed under the International Covenant on Civil and Political Rights and therefore did not contravene the Basic Law of the Hong Kong Special Administrative Region: HKSAR v Ng Kung Siu & Another [1999] 3 HKLRD 907, CFA. Defiling includes dishonouring and accordingly carrying and waving a defaced flag in public, having chosen the same for its defaced condition, was to defile the flag: HKSAR v Ng Kung Siu & Another, above.
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Loitering
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Regional Flag and Regional Emblem Ordinance (117 of 1997), s 7 7.A person who desecrates the regional flag or regional emblem by publicly and wilfully 3173 burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable (a) on conviction on indictment to a fine at level 5 and to imprisonment for three years; and (b) on summary conviction to a fine at level 3 and to imprisonment for one year.
As to level fines, see section 113B and Schedule 8 of the Criminal Procedure Ordinance (Cap 221). A level 5 fine stands current at HK$50,000. Section 2 of the Regional Flag and Regional Emblem Ordinance (117 of 1997) defines regional emblem to mean the regional emblem of the Hong Kong Special Administrative Region endorsed at the Fourth Plenum of the Preparatory Committee of the Hong Kong Special Administrative Region on 10 August 1996 with specifications set out in Schedule 1 of the same; and regional flag to mean the regional flag of the Hong Kong Special Administrative Region endorsed at the Fourth Plenum of the Preparatory Committee of the Hong Kong Special Administrative Region on 10 August 1996 with specifications set out in Schedule 2 of the same. Further, section 8 of the same Ordinance provides that a copy of the regional flag or regional emblem that is not an exact copy but that so closely resembles the regional flag or regional emblem as to lead to the belief that the copy in question is the regional flag or regional emblem is taken to be the regional flag or regional emblem for the purposes of the Ordinance. Section 7 of the Regional Flag and Regional Emblem Ordinance (117 of 1997) was held to be a justified restriction on the rights to freedom of expression guaranteed under the International Covenant on Civil and Political Rights and therefore did not contravene the Basic Law of the Hong Kong Special Administrative Region: HKSAR v Ng Kung Siu & Another [1999] 3 HKLRD 907, CFA. Defiling includes dishonouring and accordingly carrying and waving a defaced flag in public, having chosen the same for its defaced condition, was to defile the flag: HKSAR v Ng Kung Siu & Another, above.
VII. LOITERING (1) Statute

Crimes Ordinance (Cap 200), s 160 160.(1) A person who loiters in a public place or in the common parts of any building with 3174 intent to commit an arrestable offence commits an offence and is liable to a fine of HK$10,000 and to imprisonment for six months. (2) Any person who loiters in a public place or in the common parts of any building and in any way wilfully obstructs any person using that place or the common parts of that building shall be guilty of an offence and shall be liable on conviction to imprisonment for six months. (3) If any person loiters in a public place or in the common parts of any building and his presence there, either alone or with others, causes any person reasonably to be concerned for his safety or well-being, he shall be guilty of an offence and shall be liable on conviction to imprisonment for two years. (4) In this section common parts, in relation to a building, means (a) any entrance hall, lobby, passageway, corridor, staircase, landing, rooftop, lift or escalator; (b) any cellar, toilet, water closet, washhouse, bathhouse or kitchen which is in common use by the occupiers of the building; (c) any compound, garage, car park, carport or lane.
As to the meaning of public place, see section 3 of the Interpretation and General Clauses Ordinance (Cap 1), which defines the expression to mean: (a) any public street or pier, or any public garden; and (b) any theatre, place of public entertainment of any kind, or other place of general resort, admission to which is obtained by payment or to
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which the public have or are permitted access. This is the applicable definition: R v Chiu Ming (unrep., 12 November 1986, HCMA 1060/1986). As to the meaning of public place under section 3 of the Interpretation and General Clauses Ordinance, see Att-Gen v Hui Shu Sang, above; Wu Chee Ling v Urban Council, above; HKSAR v Wong Yiu Wah & Others, above; and HKSAR v Yeung Hin Kwong Stevens, above. A shop is a public place for the purposes of section 160 of the Crimes Ordinance (Cap 200): R v Ng Chun Yip [1985] HKLR 427, HC. As to arrestable offences, see s 3 of the Interpretation and General Clauses Ordinance (Cap 1), which defines the expression to mean 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.
(2) Ingredients of the offence Loiters

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Loitering means idling, lingering or hanging about: R v Mok Chi Ho [1979] HKLR 118, HC; R v Ng Chun Yip, above. Another formulation is tarrying, standing about or lingering: A-G v Sham Chuen [1986] HKLR 365, CA. Cf Tong Yiu Wah v HKSAR [2007] 3 HKLRD 565, CFA (which emphasised that the word loiter was to be construed in the light of the context in which it appears in the particular enactment, so that loitering in the Airport Bylaw Area was held to mean idling, lingering or hanging about in the Airport Bylaw Area apparently not for the ordinary and legitimate purposes connected with the use of the Airport). Driving around in a motorcar or sitting in a stationary car may amount to loitering: R v Mok Chi Ho, above. Following a woman and then making an attempt to take a photograph up her skirt may amount to loitering: HKSAR v Chau Cheuk Yin [2003] 4 HKC 483, CFI. The same applies to using a mirror to look up the skirt of a woman in front of the accused on an escalator: HKSAR v Wan Joi Yu (unrep., HCMA 1163/2003), CFI. There must however be sufficient evidence of loitering before the accused got on the escalator or while he was on the escalator: HKSAR v Li Jacob [2008] 3 HKC 544, CFI.
Well-being
Being far from happy and contented due to the defendants action is being concerned for ones well being: R v Ng Chun Yip, above. The question of whether a person was reasonably concerned for his safety or well-being was an objective test, not subjective. Thus the perception of a 12-year-old boy that the defendant appeared to him to be cruel did not, by an objective standard, provide a reason for the boy to be concerned for his safety or well-being: HKSAR v Chan Man Chun [2004] 1 HKLRD 641, CFI.
VIII. DEFAMATORY LIBEL Introduction

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For more detail in relation to this offence, see the UK editions of Archbold: Criminal Pleading, Evidence and Practice prior to 1994. For seditious libel, see 2667 et seq, above; for libel affecting the administration of justice, see 3040 et seq, above; for obscene libel, see 3348, below.
Definition
3177
A defamatory libel is the expression or conveying of a defamatory statement by written or printed words or in some other permanent form. A defamatory statement is a
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Defamatory Libel
3180
statement which, if published of and concerning a person, is calculated to expose him to public hatred, contempt or ridicule, or to damage him in his trade, business, profession, calling or office. The libel does not have to have been calculated to provoke a breach of the peace, as was once thought, but it must probably be serious, not trivial: Gleaves v Deakin [1980] AC 477, HL; Desmond v Thorne [1983] 1 WLR 163, QBD (Taylor J). As to the compatibility of an offence of criminal libel with guarantees of freedom of expression, see Worme v Commissioner of Police of Grenada [2004] 2 AC 430, PC. The publication must be in permanent form, which includes a broadcast: Defamation Ordinance (Cap 21), section 22.
Leave to commence prosecution

Defamatory libel is indictable only, though a magistrate is empowered to deal with a 3178 charge of defamatory libel summarily by imposing a fine of HK$250 upon conviction if he is of the opinion that, though the person charged is shown to have been guilty, the libel was of a trivial character, and that the offence may be adequately punished by virtue of that power; see Defamation Ordinance (Cap 21), s 16. Leave of a judge in chambers is required before commencing a prosecution against a proprietor, publisher, editor or any person responsible for the publication of a newspaper for any libel published therein: s 18(1) Defamation Ordinance. This does not include a journalist: Gleaves v Insall [1999] 2 Cr App R 467, DC (Eng). For definitions of newspaper and proprietor, see s 2 Defamation Ordinance.
Defences
These mean absolute privilege, qualified privilege, fair comment (probably), justifica- 3179 tion for the public benefit (Defamation Ordinance (Cap 21), s 7) and publication without authority, consent or knowledge (Defamation Ordinance, s 8). For further detail, see the editions of Archbold: Criminal Pleading, Evidence and Practice prior to 1994; and as to s 7, see Worme, 3177 above. As to the separate functions of judge and jury, see the Defamation Ordinance, s 7A.
Penalties
Defamation Ordinance (Cap 21), s 5 Publishing libel known to be false 5. Any person who maliciously publishes any defamatory libel, knowing the same to be false, 3180 shall be liable to imprisonment for 2 years, and, in addition, to pay such fine as the court may award.
Although the section contains the word maliciously, it is unnecessary to prove malice in the sense of an intention to defame, or even to aver it in the indictment: R v Munslow [1895] 1 QB 758, CCR (Eng). Although neither an intention to defame nor knowledge of falsity have to proved at common law, knowledge of the libel itself as opposed to mere knowledge of the book or newspaper containing it does have to be proved: Vizetelly v Mudies Select Library Ltd [1900] 2 QB 170, CA (Eng). But this principle will not operate to exonerate a defendant who did not know of the libel, but ought to have known of it, and it is for the defendant to prove that he was not negligent: ibid. Where the statutory offence is charged but the prosecution fails to prove knowledge the jury may convict of the common law offence: Boaler v R (1888) 21 QBD 284. As to penalty for the common law offence, see the s 101I Criminal Procedure Ordinance (Cap 221). See also 549, above.
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Proof of certain matters

3181
As to proof of the proprietorship of a newspaper, see s 17A(3) Registration of Local Newspapers Ordinance (Cap 268). As to the duty of printers (a) to print their name and address on papers and books printed by them and (b) to keep at least one copy of any book, local newspaper or printed document for a period of six months after printing and to record thereon the name and address of the person or persons who employed them to print the paper, see the Printed Documents (Control) Regulations (Cap 268, sub leg C) regs 2, 9.
Pleadings
3182
For a specimen indictment, plea of justification and replication, see the editions of Archbold: Criminal Pleading, Evidence and Practice prior to 1994. There do not appear to be any reported cases of criminal defamation in Hong Kong.
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Public Order Offences

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Chapter 31 PUBLIC ORDER OFFENCES

IV. IVA. V. VI. VII. VIII.