Global Freedom of Expression

Español العربية

HKSAR v. Chow Nok-Hang & Wong Hin-Wai

Closed Expands Expression

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    July 20, 2012
  • Outcome
    Other
  • Case Number
    HCMA 193/2012
  • Region & Country
    China, Asia and Asia Pacific
  • Judicial Body
    First Instance Court
  • Type of Law
    Criminal Law
  • Themes
    Freedom of Association and Assembly / Protests

Content Attribution Policy

Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

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.


Facts

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.


Decision Overview

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

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

This case expands expression by not punishing protestors more than necessary for expressing their opinions in a demonstration.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • H.K., HKSAR v. CHIU Hin-chung & H.K., KEUNG Ling-cheung HCMA 163/2012
  • H.K., Public Order Ordinance, Cap.245 Section 17B9(2)

    Behaving in a Disorderly Manner in a Public Place.

  • H.K., Public Order Ordinance, Section 17(B)(1)

    “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.”

  • H.K., HKSAR v. Yip Tak Ming [2004] 3 HKLRD 286
  • H.K., HKSAR v. Au Kwok-kuen [2012] 3 HKLRD 371
  • H.K., HKSAR v. Pearce [2006] 3 HKC 105
  • H.K., R v. Li Wai Kuen [1973-1976] HKC 346
  • H.K., HKSAR v. David Morter [2003] 2 HKLRD 510

Other national standards, law or jurisprudence

  • U.K., Jarrett v. Chief Constable of West Midlands Police [2003] EWCA Civ 397

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

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).

Official Case Documents

Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback