HCMA1014/2001 HKSAR v. FUNG KA KEUNG, CHRISTOPHER AND ANOTHER - LawHero
HCMA1014/2001
高等法院（裁判法院上訴）Deputy High Court Judge Toh15/7/2002
HCMA1014/2001
HCMA 1014/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 1014 OF 2001
(ON APPEAL FROM TMCC 1493/2001)
____________
BETWEEN
HKSAR Respondent
and
FUNG KA KEUNG, CHRISTOPHER 1st Appellant
FUNG KAI YUEN 2nd Appellant
____________
Before: Deputy High Court Judge Toh in Court
Date of Hearing: 5 June 2002
Date of Delivery of Judgment: 16 July 2002
_______________
JUDGMENT
_______________
- 2 -
1. The Appellant was convicted after trial, each of one count of
wilfully obstructing a police officer in the due execution of his duty,
contrary to Section 36(b) of the Offences against the Person Ordinance,
Cap. 212. Both Appellants were also convicted of Section 4(28) of the
Summary Offences Ordinance, Cap. 228 in that they, without lawful
authority or excuse, did an act whereby injury or obstruction, whether
directly or consequentially, may accrue to a public place. Both Appellants
appeal against their convictions.
Facts
2. On 28 May 2001, members of the well-known organization
called Green Peace went to the Nestle’s Dairy Farm Hong Kong Limited’s
premises in Yuen Long, NT, Hong Kong, where they blocked the front gate
entrance to the Nestle’s factory. Some of them went to the back gate and
both Appellants chained themselves to a van which was parked in such a
way that it blocked the entrance to the Nestle’s premises via the back gate.
The time was about 6:15 a.m. and Nestle’s Company was affected by these
protest activities because they were prevented from making their regular
deliveries to retailers starting from about 7:00 a.m.
3. Superintendent Lam, who subsequently took charge of the
police operation on that day, arrived at the scene some time after 8:00 a.m.
He found a group of people blocking the front entrance to Nestle’s
Company and he also saw, outside the rear gate of Nestle’s Company, a
van parked across the driveway in front of the back gate of Nestle’s
Company. That van effectively blocked the entrance and exit to Nestle’s
Company near the back entrance. Superintendent Lam also noticed the
two Appellants were chained to the van. The two Appellants were lying
- 3 -
on the ground and their hands were chained to the van and to each other.
Superintendent Lam then set up a coordination centre in the vicinity. At
about 11:35 a.m. he received information from the relevant authority that
the area outside the back gate of Nestle’s Company was a public area, and
it was not an area which had been specifically marked out for legal parking.
Superintendent Lam considered that the van was causing an obstruction to
members of the public who would be using that area of the road. He,
therefore, decided that the van must be towed away.
4. At about 1:35 p.m. Superintendent Lam said he went to the
area outside the back gate of Nestle’s and spoke to the people present there
including the two Appellants. He said he explained to them that the van
was causing an obstruction. He asked them to take the van away,
otherwise, the police would tow the van away. Superintendent Lam also
said that he asked the two Appellants to unchain themselves and to leave
the area. If not, they would be obstructing the Police in the execution of
their duty and they would be charged. He said that the two Appellants
made no reply and, therefore, he ordered that the two Appellants be
arrested for obstructing the Police in the due execution of their duty.
When the two Appellants were forcibly unchained and arrested, they put up
no resistance nor did they suffer any injury.
5. The 1st Appellant gave evidence that he was indeed chained to
the van on that morning, but he did not receive any warnings from the
Police. He also said that just prior to his arrest, no police officers had
communicated with him and also at the time he was lying face down on the
ground, he was not able to hear Superintendent Lam’s warning, neither
could he hear Superintendent Lam asking people to drive the van away.
- 4 -
6. The 2nd Appellant said that the Police, after arriving at the
scene, had asked him what was the matter and what they were doing there,
and at about 1:30 p.m. he did not see Superintendent Lam and it was very
noisy in the area and he was unable to hear Superintendent Lam’s words.
The 2nd Appellant also mentioned that it would take a few minutes in order
for them to be released from the way they were chained to the van, and he
said that when they were arrested, he never was given any time to react.
He said that he had a prior agreement with the 1st Appellant that they
would not resist the Police and if the Police insisted that they leave, they
would leave the area. He said that the purpose for their chaining
themselves to the van at the back gate and also the obstruction in front of
the front gate was to prevent the vehicles belonging to Nestle’s being
driven in and out of those premises.
7. It was also in evidence that Nestle’s Company rarely used the
rear gate for access to the premises and according to the PW1, who was the
Manager of Nestle’s, as it was only used in an emergency.
Superintendent Lam also gave evidence that after 11:00 a.m., he had told
an Inspector Wong to go to the rear gate to warn the people there that that
was a public area and to inform them to leave. Unfortunately, Inspector
Wong was not called to give evidence at the trial. At page 110 of the
transcript at Letter L, PW2’s evidence was that he had told Wong to tell the
people outside the rear gate that they were causing an obstruction and if
they did not drive away the van, the van would be towed away. PW2 did
not personally see Wong speaking to the Appellants or to any others.
PW4, who was another police officer at the scene, gave evidence (see page
131, Letter P) that Inspector Wong did not warn the two Appellants who
were chained to the van, but he spoke to someone who was standing up.
- 5 -
8. Exhibit P5 was a video tape taken by the Police of what
happened at the rear gate at about 1:15 p.m. that day. In that tape, when it
first began Superintendent Lam was seen in the middle of speaking to the
two Appellants who were lying on the ground. Superintendent Lam was
caught on the tape saying the words “Now, will you cooperate by driving
your vehicle away now”. When he was interrupted by somebody who
told him to speak to a Mr Ho, Superintendent Lam then, without moving
from the place he was standing, spoke to a Mr Ho and told Mr Ho that he
was causing an obstruction in a public place, and that he should cut up the
lock and the Police did not want to use force. It is clear from the tape that
despite Superintendent Lam’s initial words to the two Appellants who were
on the ground and to Mr Ho, there was no outward manifestations by either
the Appellants on the ground or Mr Ho that they were going to move
themselves or the van. So Superintendent Lam immediately then ordered
the Police to move in and the Appellants were freed from the van and
arrested.
9. When Superintendent Lam gave evidence, he said that he did
request the two Appellants, who were on the ground, to unchain themselves
and to leave and if they did not, then they would be arrested for causing
obstruction to the Police in the execution of their duty. And he said that
when he told them that there was no reaction from the two Appellants.
10. One of the grounds of appeal was that the Magistrate’s finding
that Superintendent Lam had clearly warned the two Appellants was
erroneous and not supported by the evidence and that the actual warning
given by Superintendent Lam was inadequate, and that the warning given
by Superintendent Lam to the person called Ho could not have been heard
- 6 -
by the two Appellants who were on the ground because it was noisy at the
time.
11. Having read the transcript of the evidence and viewed the
video tape, I am convinced that the learned Magistrate was not erroneous in
his findings. He was entitled to accept Superintendent Lam’s evidence
that he did warn the two Appellants on the ground and it was also obvious
from the video tape that when Superintendent Lam spoke to Mr Ho, it was
within the hearing of the two Appellants, and it is also clear from the video
that none of the protestors including the two Appellants did or said
anything to show that they would comply with the Police request. So I do
not agree with the Appellants’ counsel that the warning by Superintendent
Lam was inadequate and could not be heard by the two Appellants. There
was, therefore, ample evidence for the learned Magistrate to convict the
Appellants of wilfully obstructing the Police Officer in the due execution of
his duty under Section 36(b) of the offence against the Persons Ordinance,
Cap. 212.
12. The Appellants were also convicted under Section 4(28) of the
Summary Offences Ordinance, Cap. 228 in that they, without lawful
authority or excuse, does an act whereby injury or obstruction, whether
directly or consequentially, may accrue to a public place. The learned
Magistrate in convicting both Appellants of this charge, found as a fact that
they were indeed causing an obstruction in a public place.
13. The main point on this appeal is whether the Appellants knew
that they were indeed causing an obstruction in a public place. As was
revealed in the evidence, the Appellants and the Green Peace protestors had
arrived at the front and rear gates of the Nestle’s Company at about 6:00
- 7 -
a.m. that morning. Superintendent Lam himself was not sure whether the
area outside the rear gate was a public place until he received confirmation
some time after 11:00 a.m. that it was indeed a public place. Shortly after
that, he instructed an Inspector Wong to go to the rear gate and tell the
people and protestors at the rear gate that they were causing an obstruction
and that if they did not drive the van away, the Police would tow the van.
Now it is unfortunate that, at the trial, Inspector Wong was not called to
give evidence and the learned Magistrate was, therefore, not apprised of
what words were actually spoken by Inspector Wong to the protestors at
the rear gate and to whom.
14. Whilst I agree with counsel for the Respondent that in law a
warning is not necessary, nevertheless, Superintendent Lam, who was in
charge of the operation that day, found that it was appropriate to give the
protestors a warning prior to taking action. I agree with the decision taken
at that time by Superintendent Lam in the proper exercise of his discretion,
because it was only fair to warn the protestors at the rear gate that they
were on public land and that they were causing an obstruction and,
therefore, they were committing an offence under the laws of Hong Kong.
Although there is no rule enshrined in the laws of Hong Kong that such a
warning be given, nevertheless, in the interest of justice and fairness, such a
warning ought to be given in these circumstances when the protestors had
been at the rear gate for some hours without the Police taking action.
15. The elements of this charge is that the Appellants had no
lawful authority or excuse to do what they did whereby an obstruction was
caused, whether directly or consequentially, to a public place. The
question, therefore, is did they have lawful authority or excuse to do what
they did. If the Appellants thought that they were on private land as the
- 8 -
protestors at the front gate were, then they certainly would not have caused
an obstruction to a public place. The learned Magistrate in his statement
of findings at page 42 did mention that he accepted Superintendent Lam’s
evidence that he warned the Appellants, but he did not direct his mind to
the fact that Superintendent Lam’s warning was in relation to their
obstructing the Police in the execution of his duty and not as to the fact that
they were causing an obstruction to a public place. He also failed to direct
his mind to the fact that the earlier warning that Superintendent Lam told
Inspector Wong to give shortly after he discovered that the Appellants were
in a public place, there was no evidence to show what Inspector Wong had
actually said.
16. I, therefore, find that the conviction of the Appellants on the
third charge is, therefore, unsafe and unsatisfactory and the appeal is
allowed on the third charge and the Appellants are acquitted of this charge.
17. Finally, it has been raised on the appeal that the Appellants
have a right to freedom of expression and that any restrictions on such right
must be narrowly interpreted, and that the purpose of such restrictions is to
ensure respect for the rights or reputation of others or protection of national
security or public order or of public health or morals.
18. There is no doubt from the evidence that the protestors at the
rear gate were causing an obstruction in a public place, thereby affecting
the rights of members of the public in using that part of the road and also
the rights of the Company’s employees using the rear entrance to the
Company’s property. The Appellants and their fellow protestors in
continuing to remain chained to the van outside the rear gate of the
Company was indeed injuring the rights of members of the public to the
- 9 -
use of that area of a public place and the Police was, therefore, correct in
their approach when they first chose to warn the protestors and when the
protestors failed to move, they then proceeded to take action. I do not
agree, therefore, with the Appellants’ counsel’s submission that the arrest
was disproportionate to what was necessary to restore a clear passage at a
public place, or that the arrest was irreconcilable with the Appellants’
freedom of expression.
19. For the reasons above, the appeal against conviction in relation
to Charges 1 and 2 is dismissed. The appeal against conviction for
Charge 3 is allowed and the sentence quashed.
(E Toh)
Deputy High Court Judge
Mr Cheung Wai Sun, Deputy Principal Government Counsel, for DPP
Mr Cheung Yiu Leung, instructed by DLA, for the Appellants
HCMA 1014/2001
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO. 1014 OF 2001
(ON APPEAL FROM TMCC 1493/2001)
____________
BETWEEN
HKSAR Respondent
and
FUNG KA KEUNG, CHRISTOPHER 1st Appellant
FUNG KAI YUEN 2nd Appellant
____________
Before: Deputy High Court Judge Toh in Court
Date of Hearing: 5 June 2002
Date of Delivery of Judgment: 16 July 2002
_______________
JUDGMENT
_______________
- 2 -
1. The Appellant was convicted after trial, each of one count of
wilfully obstructing a police officer in the due execution of his duty,
contrary to Section 36(b) of the Offences against the Person Ordinance,
Cap. 212. Both Appellants were also convicted of Section 4(28) of the
Summary Offences Ordinance, Cap. 228 in that they, without lawful
authority or excuse, did an act whereby injury or obstruction, whether
directly or consequentially, may accrue to a public place. Both Appellants
appeal against their convictions.
Facts
2. On 28 May 2001, members of the well-known organization
called Green Peace went to the Nestle’s Dairy Farm Hong Kong Limited’s
premises in Yuen Long, NT, Hong Kong, where they blocked the front gate
entrance to the Nestle’s factory. Some of them went to the back gate and
both Appellants chained themselves to a van which was parked in such a
way that it blocked the entrance to the Nestle’s premises via the back gate.
The time was about 6:15 a.m. and Nestle’s Company was affected by these
protest activities because they were prevented from making their regular
deliveries to retailers starting from about 7:00 a.m.
3. Superintendent Lam, who subsequently took charge of the
police operation on that day, arrived at the scene some time after 8:00 a.m.
He found a group of people blocking the front entrance to Nestle’s
Company and he also saw, outside the rear gate of Nestle’s Company, a
van parked across the driveway in front of the back gate of Nestle’s
Company. That van effectively blocked the entrance and exit to Nestle’s
Company near the back entrance. Superintendent Lam also noticed the
two Appellants were chained to the van. The two Appellants were lying
- 3 -
on the ground and their hands were chained to the van and to each other.
Superintendent Lam then set up a coordination centre in the vicinity. At
about 11:35 a.m. he received information from the relevant authority that
the area outside the back gate of Nestle’s Company was a public area, and
it was not an area which had been specifically marked out for legal parking.
Superintendent Lam considered that the van was causing an obstruction to
members of the public who would be using that area of the road. He,
therefore, decided that the van must be towed away.
4. At about 1:35 p.m. Superintendent Lam said he went to the
area outside the back gate of Nestle’s and spoke to the people present there
including the two Appellants. He said he explained to them that the van
was causing an obstruction. He asked them to take the van away,
otherwise, the police would tow the van away. Superintendent Lam also
said that he asked the two Appellants to unchain themselves and to leave
the area. If not, they would be obstructing the Police in the execution of
their duty and they would be charged. He said that the two Appellants
made no reply and, therefore, he ordered that the two Appellants be
arrested for obstructing the Police in the due execution of their duty.
When the two Appellants were forcibly unchained and arrested, they put up
no resistance nor did they suffer any injury.
5. The 1st Appellant gave evidence that he was indeed chained to
the van on that morning, but he did not receive any warnings from the
Police. He also said that just prior to his arrest, no police officers had
communicated with him and also at the time he was lying face down on the
ground, he was not able to hear Superintendent Lam’s warning, neither
could he hear Superintendent Lam asking people to drive the van away.
- 4 -
6. The 2nd Appellant said that the Police, after arriving at the
scene, had asked him what was the matter and what they were doing there,
and at about 1:30 p.m. he did not see Superintendent Lam and it was very
noisy in the area and he was unable to hear Superintendent Lam’s words.
The 2nd Appellant also mentioned that it would take a few minutes in order
for them to be released from the way they were chained to the van, and he
said that when they were arrested, he never was given any time to react.
He said that he had a prior agreement with the 1st Appellant that they
would not resist the Police and if the Police insisted that they leave, they
would leave the area. He said that the purpose for their chaining
themselves to the van at the back gate and also the obstruction in front of
the front gate was to prevent the vehicles belonging to Nestle’s being
driven in and out of those premises.
7. It was also in evidence that Nestle’s Company rarely used the
rear gate for access to the premises and according to the PW1, who was the
Manager of Nestle’s, as it was only used in an emergency.
Superintendent Lam also gave evidence that after 11:00 a.m., he had told
an Inspector Wong to go to the rear gate to warn the people there that that
was a public area and to inform them to leave. Unfortunately, Inspector
Wong was not called to give evidence at the trial. At page 110 of the
transcript at Letter L, PW2’s evidence was that he had told Wong to tell the
people outside the rear gate that they were causing an obstruction and if
they did not drive away the van, the van would be towed away. PW2 did
not personally see Wong speaking to the Appellants or to any others.
PW4, who was another police officer at the scene, gave evidence (see page
131, Letter P) that Inspector Wong did not warn the two Appellants who
were chained to the van, but he spoke to someone who was standing up.
- 5 -
8. Exhibit P5 was a video tape taken by the Police of what
happened at the rear gate at about 1:15 p.m. that day. In that tape, when it
first began Superintendent Lam was seen in the middle of speaking to the
two Appellants who were lying on the ground. Superintendent Lam was
caught on the tape saying the words “Now, will you cooperate by driving
your vehicle away now”. When he was interrupted by somebody who
told him to speak to a Mr Ho, Superintendent Lam then, without moving
from the place he was standing, spoke to a Mr Ho and told Mr Ho that he
was causing an obstruction in a public place, and that he should cut up the
lock and the Police did not want to use force. It is clear from the tape that
despite Superintendent Lam’s initial words to the two Appellants who were
on the ground and to Mr Ho, there was no outward manifestations by either
the Appellants on the ground or Mr Ho that they were going to move
themselves or the van. So Superintendent Lam immediately then ordered
the Police to move in and the Appellants were freed from the van and
arrested.
9. When Superintendent Lam gave evidence, he said that he did
request the two Appellants, who were on the ground, to unchain themselves
and to leave and if they did not, then they would be arrested for causing
obstruction to the Police in the execution of their duty. And he said that
when he told them that there was no reaction from the two Appellants.
10. One of the grounds of appeal was that the Magistrate’s finding
that Superintendent Lam had clearly warned the two Appellants was
erroneous and not supported by the evidence and that the actual warning
given by Superintendent Lam was inadequate, and that the warning given
by Superintendent Lam to the person called Ho could not have been heard
- 6 -
by the two Appellants who were on the ground because it was noisy at the
time.
11. Having read the transcript of the evidence and viewed the
video tape, I am convinced that the learned Magistrate was not erroneous in
his findings. He was entitled to accept Superintendent Lam’s evidence
that he did warn the two Appellants on the ground and it was also obvious
from the video tape that when Superintendent Lam spoke to Mr Ho, it was
within the hearing of the two Appellants, and it is also clear from the video
that none of the protestors including the two Appellants did or said
anything to show that they would comply with the Police request. So I do
not agree with the Appellants’ counsel that the warning by Superintendent
Lam was inadequate and could not be heard by the two Appellants. There
was, therefore, ample evidence for the learned Magistrate to convict the
Appellants of wilfully obstructing the Police Officer in the due execution of
his duty under Section 36(b) of the offence against the Persons Ordinance,
Cap. 212.
12. The Appellants were also convicted under Section 4(28) of the
Summary Offences Ordinance, Cap. 228 in that they, without lawful
authority or excuse, does an act whereby injury or obstruction, whether
directly or consequentially, may accrue to a public place. The learned
Magistrate in convicting both Appellants of this charge, found as a fact that
they were indeed causing an obstruction in a public place.
13. The main point on this appeal is whether the Appellants knew
that they were indeed causing an obstruction in a public place. As was
revealed in the evidence, the Appellants and the Green Peace protestors had
arrived at the front and rear gates of the Nestle’s Company at about 6:00
- 7 -
a.m. that morning. Superintendent Lam himself was not sure whether the
area outside the rear gate was a public place until he received confirmation
some time after 11:00 a.m. that it was indeed a public place. Shortly after
that, he instructed an Inspector Wong to go to the rear gate and tell the
people and protestors at the rear gate that they were causing an obstruction
and that if they did not drive the van away, the Police would tow the van.
Now it is unfortunate that, at the trial, Inspector Wong was not called to
give evidence and the learned Magistrate was, therefore, not apprised of
what words were actually spoken by Inspector Wong to the protestors at
the rear gate and to whom.
14. Whilst I agree with counsel for the Respondent that in law a
warning is not necessary, nevertheless, Superintendent Lam, who was in
charge of the operation that day, found that it was appropriate to give the
protestors a warning prior to taking action. I agree with the decision taken
at that time by Superintendent Lam in the proper exercise of his discretion,
because it was only fair to warn the protestors at the rear gate that they
were on public land and that they were causing an obstruction and,
therefore, they were committing an offence under the laws of Hong Kong.
Although there is no rule enshrined in the laws of Hong Kong that such a
warning be given, nevertheless, in the interest of justice and fairness, such a
warning ought to be given in these circumstances when the protestors had
been at the rear gate for some hours without the Police taking action.
15. The elements of this charge is that the Appellants had no
lawful authority or excuse to do what they did whereby an obstruction was
caused, whether directly or consequentially, to a public place. The
question, therefore, is did they have lawful authority or excuse to do what
they did. If the Appellants thought that they were on private land as the
- 8 -
protestors at the front gate were, then they certainly would not have caused
an obstruction to a public place. The learned Magistrate in his statement
of findings at page 42 did mention that he accepted Superintendent Lam’s
evidence that he warned the Appellants, but he did not direct his mind to
the fact that Superintendent Lam’s warning was in relation to their
obstructing the Police in the execution of his duty and not as to the fact that
they were causing an obstruction to a public place. He also failed to direct
his mind to the fact that the earlier warning that Superintendent Lam told
Inspector Wong to give shortly after he discovered that the Appellants were
in a public place, there was no evidence to show what Inspector Wong had
actually said.
16. I, therefore, find that the conviction of the Appellants on the
third charge is, therefore, unsafe and unsatisfactory and the appeal is
allowed on the third charge and the Appellants are acquitted of this charge.
17. Finally, it has been raised on the appeal that the Appellants
have a right to freedom of expression and that any restrictions on such right
must be narrowly interpreted, and that the purpose of such restrictions is to
ensure respect for the rights or reputation of others or protection of national
security or public order or of public health or morals.
18. There is no doubt from the evidence that the protestors at the
rear gate were causing an obstruction in a public place, thereby affecting
the rights of members of the public in using that part of the road and also
the rights of the Company’s employees using the rear entrance to the
Company’s property. The Appellants and their fellow protestors in
continuing to remain chained to the van outside the rear gate of the
Company was indeed injuring the rights of members of the public to the
- 9 -
use of that area of a public place and the Police was, therefore, correct in
their approach when they first chose to warn the protestors and when the
protestors failed to move, they then proceeded to take action. I do not
agree, therefore, with the Appellants’ counsel’s submission that the arrest
was disproportionate to what was necessary to restore a clear passage at a
public place, or that the arrest was irreconcilable with the Appellants’
freedom of expression.
19. For the reasons above, the appeal against conviction in relation
to Charges 1 and 2 is dismissed. The appeal against conviction for
Charge 3 is allowed and the sentence quashed.
(E Toh)
Deputy High Court Judge
Mr Cheung Wai Sun, Deputy Principal Government Counsel, for DPP
Mr Cheung Yiu Leung, instructed by DLA, for the Appellants