Albert Chen on the Offence of Unauthorized Assembly

In a piece entitled ‘Comments for the Press on the Recent Controversy arising from Statements of the HKMAO and Liaison Office’ published on this Blog on 22 April, I have already set out my views on the controversy.

     In an article entitled "15 arrested over assemblies broke public security law" published in China Daily (Hong Kong edition) on 23 April, I was misquoted as saying that "the 15 public figures arrested on Saturday on suspicion of organizing or participating in unauthorized assemblies last year have definitely broken Hong Kong's public security law". This is definitely a misquote.

    The article was based on an interview conducted in Cantonese earlier this week. During the interview, I never said anything in Cantonese that can be translated as "the persons concerned have definitely broken Hong Kong’s public security law". Instead, I tried to explain that under the Public Order Ordinance (Cap 245), there are different offences such as organising or participating in an ‘unauthorized assembly’, an ‘unlawful assembly’, and a riot. The threshold (in terms of evidence) for conviction for ‘unauthorized assembly’ is not high, because unlike in the two latter cases, there is no need for the prosecution to prove that the assembly involved any public disorder, breach of the peace or violence, or risk of public disorder or breach of the peace or of violence breaking out. All that the prosecution has to prove is that the assembly was unauthorized because no prior notification had been given to the police.

    It is unfortunate the above legal points which I made at the interview were not reported in the article, and instead there was the misquote mentioned above.  For more information on the offences of authorized assembly, unlawful assembly and rioting, reference can be made to sections 17A, 18, and 19 of the Public Order Ordinance (Cap 245).  The offence of 'unauthorized assembly' was recently considered by the Court of Appeal in Kwok Wing Hang v Chief Executive in Council [2020] HKCA 192, [193]-[246]. The elements of the offences of unlawful assembly and rioting and their constitutionality were considered in HKSAR v Leung Tin Kei [2018] HKCFI 2715.

Albert H.Y. Chen 

24 April 2020