Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The defendants were acquitted of their offense for behaving in a disorderly manner in a public place because they did not act with an intent to provoke a breach of the peace nor did a breach of the peace result from their actions. However, their convictions for acting in a disorderly manner in a public gathering were affirmed because they caused disorder at a public event.
On April 10, 2011, the MTR Hong Kong Race Walking 2011 took place as a charity fundraising event. During the award ceremony, demonstrators were shouting against MTR and during one of the speeches Chow rushed onto the stage and scattered paper money all over the stage. Chow was taken away by a staff member and then Wong rushed onto the stage, seized the microphone, and shouted “shame on MTR for their fare hike.” Wong was subsequently removed from the stage. These facts were undisputed.
Appellants Chow and Wong were charged with behaving in a disorderly manner in a public place. Both pled not guilty but were convicted by the magistrates and sentenced to 14 days imprisonment. The defendants appealed their sentence and conviction.
The defendants submitted three grounds for appeal. 1) “the magistrate erred in finding that the appellants behaved in the manner they did ‘with intent to provoke a breach of the peace, or whereby a breach of the peace was likely to be caused.” 2) “the magistrate erred in finding that the appellants’ conduct constituted a breach of the peace.” 3) “the inference that the other demonstrator was provoked or inspired to follow in the appellants’ footsteps was far-fetched, and that it was not the only reasonable inference.”
As the defendants were convicted of breaching the peace they were required to prove three elements: The Defendants must be “(a) [i]n a public place; (b) [behaving] in a noisy or disorderly manner, and (c)(i) [w]ith intent to provoke a breach of the peace; or (ii) [w]hereby a breach of the peace was likely to be caused.” The venue was clearly a public place, as admitted by both parties in the case. Both appellants’ conduct further amounted to disorderly conduct taking into account not only their actions but what their actions caused, namely injury to others trying to remove them from the stage. However, the Court found that the defendants did not intend to breach the peace as there was no evidence that their conduct was intended to provoke other people to follow them onto the stage. Further, the Court did not find that their disorderly conduct caused others to breach the peace, and therefore the prosecution did not prove beyond a reasonable doubt that the defendants had violated the statute.
The defendants were also charged with Acting in a Disorderly Manner at a Public Gathering, which requires that the defendants be “(a) [a]t a public gathering called together for a certain business; (b) [a]cting in a disorderly manner; and (c) [f]or the purpose of preventing the transaction of the business.” Clearly, the defendants met the first two elements of the offense, but challenged their conviction as to the third element. The Court disagreed and affirmed their conviction on this point ruling that their actions amounted to enough to demonstrate “purpose” within the third element of the offense. The defendants were charged $2,000 and $3,00 respectively for their offense.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by not punishing protestors more than necessary for expressing their opinions in a demonstration.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Behaving in a Disorderly Manner in a Public Place.
“Any person who at any public gathering acts in a disorderly manner for the purpose of preventing the transaction of the business for which the public gathering was called together or incites others so to act shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 12 months.”
Case significance refers to how influential the case is and how its significance changes over time.
Although Hong Kong has a “hybrid” legal system, incorporating common law and civil law elements, this decision will be binding on Hong Kong’s lower courts, unless certain exceptions apply (e.g. those relating to expression involving Chinese national symbols).
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