1. The freedom to demonstrate peacefully is a constitutional right protected by Article 27 of the Basic Law. It is closely associated with freedom of speech. Such freedoms of course include the freedom to express views which others may find disagreeable or offensive or which may be critical of persons in authority. Those freedoms are at the heart of Hong Kong's system and the courts should give them a generous interpretation.
2. The appellants were part of a group of 16 members of the Falun Gong who held a peaceful demonstration on the public pavement outside the Liaison Office of the Central People's Government on 14 March 2002. The demonstrators ignored police warnings to move away from that location. This led to all 16 of them being arrested and charged with obstruction of a public place. As a result of their conduct after being taken to Western Police Station, the appellants were additionally charged with willfully obstructing police officers acting in the due execution of their duty. Two were also charged with assaulting police officers acting in the due execution of their duty.
3. The magistrate convicted on all charges. The Court of Appeal quashed the public place obstruction convictions but upheld the willful obstruction and assault convictions. The appeal to the Court of Final Appeal was against those remaining convictions.
4. Not every physical obstruction of a public place (such as a public pavement) is an offence. The law requires reasonable give and take between users of public places. It is only where the obstruction is an unreasonable use of the public place given its extent and duration, the time and place where it occurs and the purpose for which it is done, that it is "without lawful excuse" and so amounts to an offence. When obstruction results from persons exercising the constitutional right to demonstrate, the importance of that fundamental right must be given substantial weight in deciding whether the obstruction is reasonable.
5. In quashing the public place obstruction convictions, the Court of Appeal held that the police and the magistrate had not adequately considered the question of reasonableness. The minor obstruction caused by this small demonstration could not be regarded as unreasonable and so did not constitute an offence.
6. Since the police had arrested the demonstrators on suspicion of public place obstruction offences, the Court of Final Appeal had to determine the effect of quashing those convictions on the lawfulness of the arrests. If the arrests were unlawful, then the actions later taken by the police against the appellants at the police station would not have been done in the due execution of duty and the convictions for willful obstruction and assault of officers acting in the due execution of their duty could not be upheld.
7. A person can lawfully be arrested without a warrant where the arresting officer (i) genuinely suspects that person of having committed an offence punishable by imprisonment; and (ii) has reasonable grounds for such suspicion, having in mind all the material elements of the offence, and taking into account the information available to him at the time of the arrest.
8. Here, the arresting officers acted on the basis of information given to them at police briefings before the arrest operation and also on the basis of what they saw at the scene. The Court held that while the officers had genuinely suspected that a public place obstruction offence had been committed, they did not have reasonable grounds for that suspicion. At the briefing, no consideration had been given to the material element of whether the demonstrators, in exercising their constitutional right to demonstrate, were creating an obstruction which was unreasonable and so without lawful excuse. Nothing evident at the scene supported such a conclusion. The arrest was therefore unlawful and subsequent acts done by officers while holding the appellants in custody were not done in the due execution of their duty.
9. The Court therefore allowed the appeal and quashed the remaining convictions. It stated that it was not criticising the police officers concerned. They had handled a difficult situation in a developing area of the law with restraint and disciplined professionalism throughout.
You are welcome to print and circulate all articles published on Clearharmony and their content, but please quote the source.