HCMA 303/2018

[2020] HKCFI 2401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 303 OF 2018

(ON APPEAL FROM KCCC NO 2035 OF 2017)

_______________________

_______________________

_______________________

D E C I S I O N

_______________________

1.  This is the appellant’s application pursuant to section 32(2) of the Court of Final Appeal Ordinance, Cap 484, for a certificate that points of law of great and general importance are involved in the Judgment delivered by this court dated 2 September 2020, dismissing the appellant’s appeal (“Judgment”).

2.  The following questions are posed as involving points of law of great and general importance, for which this court is invited to grant a certificate.  The questions are in the following terms: –

(1)  Which alternative set out in Kulemesin v HKSAR (2013) 16 HKCFAR 195 shall be applicable in proving the element of causing the stipulated fear of the offence created by section 18(1) of the Public Order Ordinance, Cap 245 (“POO”) (the “First Question”)?

(2)  Whether a mistake of law defence is a defence under the offence created by section 18(1) of the POO (the “Second Question”)?

3.  In relation to the First Question, the appellant contends that when considering the element of causing the “stipulated fear” as an element of the offence created by section 18 of the POO, either the first or the second alternative set out in Kulemesin should apply, so that either the prosecution must prove knowledge, intention or recklessness as to every element of the offence; or the prosecution need not to set out the mens rea; however, if evidence is raised regarding the accused’s honest and reasonable belief, the prosecution must prove beyond reasonable doubt that there was no reasonable grounds for such belief.

4.  In any event, the appellant submits that the fifth alternative set out in Kulemesin should not be applicable, namely, displacing the presumption of mens rea in relation to the element of causing the stipulated fear under section 18 of the POO.

5.  In relation to the Second Question, the appellant contends that only illegality of the feared breach of the peace should be criminalized.  Otherwise, the offence under section 18(1) of the POO would render all feared breach of the peace, nonetheless lawful, caused by a group of 3 or more persons, an offence.

The First Question

6.  The offence of unlawful assembly is created under section 18 of the POO.  The relevant parts are as follows: –

“18. Unlawful assembly

(1) When 3 or more persons, assembled together, conduct 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, they are an unlawful assembly.

(2) …

(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 5 years; and

(b) on summary conviction, to a fine at level 2 and to imprisonment for 3 years.”

(emphasis added)

7.  The above underlined part of section 18(1), for the sake of convenience, is referred to hereafter in this Decision as the “likely to cause” limb of the offence.

8.  For the reasons stated in paragraphs 36 to 45 of the Judgment, this court held that the “likely to cause” limb of the offence is purely objective and it is not necessary for the prosecution to go further to prove that the accused knew or was reckless that the prescribed acts were likely to cause the stipulated fear.

9.  However, as explained in the Judgment, in HKSAR v Leung Tin Kei [2020] 1 HKLRD 1263, Albert Wong J had adopted a different approach from this court and ruled that the presumption of mens rea for the “likely to cause” limb should not be displaced, and the prosecution had to prove that the accused knew of or was reckless as to the prescribed acts being likely to cause the stipulated fear (at paragraph 73).

10.  In these circumstances, I am satisfied that a certificate should be granted in respect of the First Question which warrants a determination by the Court of Final Appeal.  However, I would slightly reformulate the First Question as follows, as the argument on mens rea only relates to the “likely to cause” limb:

“Which alternative set out in Kulemesin v HKSAR (2013) 16 HKCFAR 195 shall be applicable in relation to the “likely to cause any person reasonably to fear” limb of the offence created by section 18 of the Public Order Ordinance (Cap. 245)?”

The Second Question

11.  I refuse to grant a certificate in terms of the Second Question as the same is not reasonably arguable.  In short:

(1)  In respect of the stipulated fear under a section 18 POO offence, the person “reasonably to fear that the persons so assembled will commit a breach of the peace” is a person, an objective bystander who is not part of the assembly.  Hence, the belief of the accused as to the lawfulness of the threatened breach of the peace is not material.

(2)  In any event, the concept of a “lawful breach of the peace” is unknown to the law.  If lawful force is used, it will mean that no breach of the peace has occurred.