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Press Summary (English)
Press Summary (Chinese)
FACC No 9 of 2023
[2024] HKCFA 2
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO 9 OF 2023 (CRIMINAL)
(ON APPEAL FROM HCMA NO 51 OF 2022)
________________________
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BETWEEN
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HKSAR
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Respondent
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(Appellant)
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and
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CHOW HANG TUNG (鄒幸彤)
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Appellant
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(Respondent)
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________________________
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Before:
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Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Mr Justice Gleeson NPJ
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Date of Hearing:
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22 November 2023
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Date of Judgment:
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25 January 2024
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______________________________
J U D G M E N T
______________________________
Chief Justice Cheung:
1.
This appeal by the prosecution raises the question of whether a collateral challenge to the validity of a prohibition of the holding of a public meeting can be mounted in a prosecution for inciting others to take part in the prohibited meeting, contrary to section 17A(3)(a) of the Public Order Ordinance
[1]
and the common law.
The facts
2.
The facts giving rise to the prosecution below may be briefly stated. On 27 April 2021, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China,
[2]
of which the respondent, Miss Chow Hang Tung, was the Vice Chairman at the time, gave a written notification, as required by sections 7(1)(a) and 8 of the Ordinance, to the Commissioner of Police of its intention to hold a meeting at Victoria Park between 8 pm and midnight on 4 June 2021 to commemorate the 32
nd
anniversary of the “4 June incident”.
3.
On 25 May 2021, the police had a liaison meeting with the Alliance’s representative to discuss arrangements for the proposed meeting. After the meeting, the Alliance submitted to the police a revised notification dated 25 May 2021 in which the estimated number of participants was revised downwards from 100,000 to 150,000 to between 40,000 and 60,000, and the time of the proposed meeting was shortened to between 8 pm and 10 pm.
4.
On 27 May 2021, the Commissioner of Police issued a notice of prohibition to the Alliance pursuant to section 9 of the Ordinance, prohibiting the holding of the meeting on 4 June 2021. The notice stated that in view of the need of maintaining public safety, public order and protecting the rights and freedoms of others, and after taking into account local and global Covid pandemic situations at the time, the Commissioner had decided to prohibit the intended meeting.
5.
Pursuant to section 16 of the Ordinance, the Alliance lodged an appeal against the prohibition with the Appeal Board constituted under section 44 of the Ordinance. On 29 May 2021, the Appeal Board confirmed the decision of the Commissioner and dismissed the appeal.
6.
On the same day, the government issued a press release informing the public of the Commissioner’s prohibition of the intended public meeting on 4 June 2021 and the Appeal Board’s dismissal of the Alliance’s appeal. It advised that the intended meeting, if held, would be an unauthorised assembly and no one should take part in it nor advertise or publicise it. Otherwise, he or she would be acting in contravention of the law.
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