The recent and ongoing Occupy Central campaign where large number of protestors occupied and obstruct public places and main access roads has caused concerns regarding the law governing such conduct in Hong Kong. The prolonged campaign has led to loss and inconvenience to a significant part of the Hong Kong community including road users, loss of commuting time, increase travel expense and loss of income and business. The Public Order Ordinance (“the Ordinance”) is the main legislation governing the maintenance of public order, control of organizations, meetings, processions, places, unlawful assemblies and riots in Hong Kong.
The Ordinance on Public Meeting
Section 7 of the Ordinance regulates public meeting (meaning any meeting held or to be held in a public place) by providing that to hold a public meeting, notice must be given to the Police and that the holding of the public meeting is not prohibited by the Police.
Section 7 further provides that 3 specified types of meeting eg meeting of less than 50 persons, in private premises where the meeting does not exceed 500 persons and meeting in any school are excluded from the application of Section 7.
This means if no notice to hold a public meeting has been given to the Police, the public meeting is a contravention of Section 7. Alternatively, even if notice has been given to the Police but the Police prohibit the public meeting from taking place, the public meeting is still a contravention of Section 7.
Therefore, whether there is the exercise of the Police power to prohibit a public meeting is of key importance to the legality of the public meeting.
Exercise of the Power to Prohibit Public Meeting
Section 9 of the Ordinance empowers the Police to prohibit the holding of any public meeting if the Police reasonably consider such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others (“the Interests”).
However, the Police shall not prohibit the holding of a public meeting if the Police reasonably consider that the Interests could be met by the imposition of conditions under Section 11(2) (see Section 9(4)).
Once the public meeting has commenced, the further question is whether the Police can use force to prohibit or breakup such meeting. The popular view appears to be that the use of excessive and disproportionate force against protestors is not justifiable. This is regardless of the length of the campaign or the fact that the participants though not armed are silent aggressors, “thieves in the night” and offenders of law.
Apart from a contravention of Section 7 of the Ordinance, any person who takes part in Occupy Central might also commit an offence under Section 18 of the Ordinance for unlawful assembly and Section 4A of the Summary Offences Ordinance for obstruction in a public place. Civil disobedience is not a legal defence to any criminal charges or civil actions against the participants.
In addition to criminal liability, the protestors’ actions might attract civil liability under the tort of public nuisance as they are interferring with or obstructing other persons in the exercise or enjoyment of rights public access. It is a public nuisance to obstruct or hinder the free passage of the public along the highway by land or water. See Clerk & Lindsell on Torts, 18th edition, para 19-106.
A private individual will have a right of action in public nuisance or other tort if it can be proved that he has sustained or suffered particular damage or injury and not mere personal inconvenience as a result of the participants’ actions in Occupy Central. The protestors might also be liable for consequential damage eg trading losses, to owners of trade and business surrounding the affected areas. Not only is unlawful interference with the public’s use of highway actionable on proof of a particular damage, the principle has long been extended to obstruction of the public with consequential harm to the claimant’s trade on adjacent premises (See Fritz v Hobson (1880) 14 Ch D 542).
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