Introduction
“Occupy Central”, a proposed civil disobedience protest by its organizers aiming to fight for universal suffrage in Hong Kong, has recently been a heated topic of discussion. Given Beijing’s stance to make potential chief executives obtain a majority support of the nominating committee members as a prerequisite to run for office in 2017 (which is contrary to the organizers’ view of true universal suffrage), it seems more and more likely that the Occupy Central movement will take place.

One of the major issues of discussion is the legality of the “Occupy Central” movement. However, a more critical issue is how far the Hong Kong Government should prosecute any illegal conduct of the protesters whilst striking a balance between law enforcement, freedom of speech and expression, and public interest. This article examines these issues in more details below.

Recognition of Freedom of Assembly and Association
The rights to freedom of assembly and association are recognized and protected under article 27 of the Basic Law and articles 17 and 18 of the Hong Kong Bill of Rights. However, such rights are not absolute and may be restricted in the interests of, among others, public safety, public order or the protection of the rights and freedoms of others.

Potential Criminal Liabilities

Offences under the Public Order Ordinance (Cap. 245) (“POO”)
Pursuant to section 7 of the POO, a large scale public meeting like “Occupy Central” may only take place with the permission of the Commissioner of the Police. 

Even if permission is obtained, under section 17A of the POO, in the event that the participants of “Occupy Central” refuse or wilfully neglect to obey any orders of the police, they may be guilty of the offence of unauthorized assembly. Further, the participants may be guilty of the offence of unlawful assembly under section 18 of the POO if they 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 provoke other persons to commit a breach of the peace.”  The maximum term of imprisonment for these offences is 5 years.

According to HKSAR v Leung Kwok Wah [2013] 2 HKC 1, it is not necessary to show that a breach of the peace has actually occurred; it is sufficient that a person present at the scene reasonably feared that it would occur if no action was taken in the mean time to prevent it. Further,”breach of the peace” is defined broadly to include harm to other persons or damages to properties of others or a fear of such consequences.

Other Offences
In addition to the offences under POO, pursuant to section 63 of the Police Force Ordinance (Cap. 232), it is an offence to assault or resist any police officer acting in the execution of his duty, or aids or incites any person so to assault or resist, or refuses to assist any such officer in the execution of his duty. Section 23 of the Summary Offences Ordinance (Cap. 228) also provides for a similar offence of resisting or obstructing a public officer (which includes a police officer) lawfully engaged in a public duty.

Previous prosecuted case for Unlawful Assembly – HKSAR v Yip Po Lam
In HKSAR v Yip Po Lam [2014] 2 HKLRD 777, a march took place after the June Fourth candlelight vigil in Victoria Park. Prior to the march, the police had not received any notification in relation to the march as required under the POO. During the course of the procession, some participants charged a police cordon. 8 defendants who were involved in the public procession and were charged with, among others, unlawful assembly and knowingly taking or continuing to take part in or forming or continuing to form part of an unauthorized assembly. 

All the defendants were convicted and fined in respect of their offences for unauthorized assembly. In addition, the court considered the conduct of 2 defendants who directed the procession to charge the police cordon was far more serious than just marching or blocking traffic and thus sentenced them to 4 weeks of imprisonment (suspended for 12 months). 

The Decision to Prosecute
While participants of “Occupy Central” may potentially commit various offences as mentioned above, under the Prosecution Code of the Department of Justice, in determining whether or not to prosecute, the Department of Justice shall have regard to whether the available evidence demonstrates a reasonable prospect of conviction and, if so, whether it is in the public interest to prosecute. In assessing the “public interest” limb, relevant considerations include the nature and circumstances of the offence, the seriousness of the offence, the level of the suspect’s culpability, the involvement of other suspects in the commission of the offence and the prevalence of the offence and any deterrent effect of a prosecution.

Conclusion
While “Occupy Central” movement may be considered as a channel for the public to express their views concerning the chief executive election, organizers and protesters may suffer the criminal consequences involved in the movement. With citizens’ growing dissatisfaction with the Hong Kong Government, it will be interesting to see how the Government reacts if and when the movement goes ahead, bearing in mind that any drastic measures will likely trigger further protests.

For enquiries, please contact our Litigation & Dispute Resolution Department:

E: criminal@onc.hk

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IMPORTANT: The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.