Public Order Ordinance

Public Order (Amendment) Ordinance 1997
Provisional Legislative Council
An ordinance to consolidate and amend the law relating to the maintenance of public order, the control of organisations, meetings, processions, places, vessels and aircraft, unlawful assemblies and riots and matters incidental thereto or connected therewith.
Citation	Cap. 245
Enacted by	Provisional Legislative Council
Date commenced	1 July 1997
Legislative history
Bill published on	17 May 1997
Introduced by	Secretary for Policy Co-ordination Michael Suen
First reading	17 May 1997
Second reading	14 June 1997
Third reading	14 June 1997

The Public Order Ordinance is the Cap. 245 in the Laws of Hong Kong last amended in 1997 relating to the maintenance of public order, the control of organisations, meetings, processions, places, vessels and aircraft, unlawful assemblies and riots and matters incidental thereto or connected therewith. It has been one of the most controversial law in Hong Kong of restricting people's freedom of expression and assembly.

History

Colonial period

The most significant version of the Ordinance was passed by the British colonial government during the Hong Kong 1967 Leftist riots to give the power to Hong Kong police to arrest the pro-communist rioters. The bill was published on 6 October 1967 and was passed into law on 15 November 1967 by the Legislative Council. Before the enactment of the Public Order Ordinance 1967, the law dealing with public order was to be found in the Public Order Ordinance, the Peace Preservation Ordinance, the Summary Offences Ordinance and in the common law. The 1967 version of the law was a consolidation of various pieces of preexisting legislation.^[1]

Under the revised Public Order Ordinance in 1980, it generated a licensing system for gatherings in public place.^[2]

In 1991 the final years of the colonial rules, the Hong Kong Bill of Rights Ordinance Cap. 383 was enacted. A number of ordinances, including the Public Order Ordinance that may violate the Bill of Rights Ordinance had to be reviewed.^[1]

In 1995, most provisions in the law was repealed by the Legislative Council as part of the government to bring Hong Kong law in line with the International Covenant on Civil and Political Rights, and the licensing system was replaced by a simple notification procedure.^[2]

In October 1996, Democratic Party's legislator James To introduced a private member's bill to amend section 6 of the Ordinance to remove the power of the Commissioner of Police to control the extent to which music or speech might be amplified. The Secretary for Security Peter Lai moved an amendment to make it more explicit that the Commission of Police would exercise such power only if "he reasonably considers it to be necessary to prevent an imminent threat to public safety or public order". The Secretary for Security's amendment was carried and the 1996 Amendment Ordinance came into effect on 20 December 1996.^[1]

SAR administration

The People's Republic of China government was convinced that the 1995 amendment in the late colonial days was maliciously motivated and aimed at reducing legitimate public order regulatory powers of the government of Hong Kong Special Administrative Region. The PRC considered the Bill of Rights Ordinance and the 1995 Public Order Ordinance to contravene the Hong Kong Basic Law.^[2] The Preliminary Working Committee for the HKSAR, an organ oversaw the preparatory works for the transfer of the sovereignty consisting members who were appointed by the PRC government, proposed to reinstate the Public Order Ordinance. Therefore, on 23 February 1997, the Standing Committee of the National People's Congress passed a resolution that under Article 160 of the Basic Law that major amendments to the Ordinance would be scrapped.^[3]

Following up the NPC's decision, the Office of the Chief Executive Designate proposed amendments to the Public Order Ordinance, together with the Societies Ordinance and issued a hastily prepared consultation document "Civil Liberty and Social Order" to the public in April 1997. The proposed amendments created widespread criticisms that the future SAR government intended to restrict Hong Kong people's civil liberties. The colonial Hong Kong government even distribute a commentary criticising the proposals in unusual manner.^[4] The CE Office scaled down the amendments on 15 May in result. The Hong Kong Provisional Legislative Council enacted the new version of the Ordinance on 14 June 1997 with and came into force on 1 July 1997.^[1] The restored and amended provisions which was seen a halfway between the licensing and notification systems.

Current version

The 1997 amendment of the law gives government the power to prohibit a public meeting or procession on the grounds of "national security" and "the protection of the rights and freedoms of others," in addition to preexisting grounds of "public safety" and "public order."^[5] Under the section 17A any failure to do is a criminal offence and may face an imprisonment term of up to five years.^[2]

The details of the current version of the Ordinance that restrict the right of assembly:

• A public procession consisting of more than 30 persons can only take place if the Police Commissioner has been notified a week in advance and the Commissioner has notified the organiser that he has no objection. § 13(2)
• The Commissioner can object to the public procession, but only if he reasonably considers that the objection is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others. § 14(1)
• The Commissioner may, where he reasonably considers it necessary in the interests of national security or public safety, public order or for the protection of the rights and freedoms of others, impose conditions in respect of any public procession notified under section 13A, and notice of any condition so imposed shall be given in writing to the organiser and shall state the reasons why such condition is considered necessary. § 15(2)
• Further requirements include the presence of the organiser at the procession, maintenance of good order and public safety, the prohibition of unreasonable use of amplification devices, compliance with directions given by a police officer for ensuring compliance with the Commissioner's requirements and the Ordinance's requirements etc. § 15(4)

On the other hand, certain statutory safeguards are present in the Ordinance.

• The Commissioner can accept notice that is given in less than a week. If he decides not to, he must inform the organizers in writing as soon as possible and give reasons. § 13A(2)
• The Commissioner can only reject an application if he considers objection is necessary for the statutory legitimate purposes. It is to be noted the "protection of public health & morals" purpose in the Bill of Rights is absent in the Ordinance, hence restricting the Commissioner's discretion. § 14(1)
• The objection must be given as soon as possible and within the statutory time limit. § 14(2)
• The Commissioner is obliged not to object if he reasonably considers that the relevant statutory legitimate purposes could be met by imposing conditions. § 14(5)
• The Commissioner's discretion may only be delegated to police officers of inspector or above. § 52
• A decision by the Commissioner can be appealed to an Appeal Board. The decision of the Appeal Board can be judicially reviewed (but not appealed). § 16

Cases

The first charge under the Public Order Ordinance was taken after the handover was in 2000, when seven student leaders were arrested for joining "illegal assemblies" and obstructing the police on a demonstration on 26 June 2000 that was without a prior notice given to the police. The protest, served as a reminder of the Government's decision to seek for re-interpretation of the Basic Law after the right of abode rulings in 1999, received general public and media sympathy and was viewed by some as an orderly, non-violent and non-provoking act of civil disobedience.^[6] More than 500 academics and researchers signed a petition to support the students, about 1,000 people marched on the street without police's letter of no objection in open defiance of the Public Order Ordinance, and the Hong Kong Bar Association condemned the police for singling out students for arrest. Due to large pressure from society, the Secretary for Justice Elsie Leung decided not to prosecute the student leaders and other protestors.^[7]

Leung Kwok-hung and Others v. HKSAR

The first case that the HKSAR government decide to prosecute protesters for violation of the notification system was launched on 9 May 2002 against veteran protestor Leung Kwok-hung of the April Fifth Action and two other student activists was charged with organising an unauthorised public assembly or assisting in organising one. On 10 February 2002, a number of persons gathered at Chater Garden for a procession. Civil activist Leung Kwok-hung was the organiser of the procession, but did not notify the Commissioner in advance. A police officer invited him to go through the statutory notification procedure, but Leung refused and was warned of the consequences. Initially, the procession consisted of 40 people, but it eventually grew to about 96 persons. They ignored police advice for several times, but the procession was at all times peaceful. On 25 November 2002, the three were convicted for organising an unathourised public procession and for failing to notify the police under the Ordinance. Each of them was fined 500 Hong Kong dollars and was required to be bound over for three months. Magistrate Partick Li held that requirement for the notification system was reasonable for maintaining ordre public of Hong Kong society.^[8] The appeal was heard before the Court of Final Appeal.

At the Court of Final Appeal, the constitutionality of the entire statutory notification scheme was challenged.^[9] On 8 July 2005, the Court of Final Appeal by a majority of 4 to 1 dismissed the appeal.^[10] Chief Justice Li, Justice Chan PJ, Justice Ribeiro PJ and Sir Anthony Mason NPJ, having considered all the statutory restrictions on the freedom of assembly and the statutory safeguards listed above, held that the notification system was constitutional. However, they held that the norm of "ordre public", which existed as a statutory legitimate purpose at that time, was too vague at statutory level and hence could not be said to be prescribed by law. "Ordre public" was as a result severed, but the term "public order" was sufficiently precise to survive.^[11] They also remarked in dicta that the norm of "protection of the rights and freedoms of others" was too wide and did not satisfy the legal certainty requirement. They affirmed the convictions as the severance did not affect the conviction. Justice Bokhary PJ dissented, noting in his judgment that the whole statutory scheme should be struck down except the entitlement to notification.^[12]

The government was criticised for politically motivated prosecute a few high-profile protesters as Leung Kwok-hung was the veteran activist and a leader of a radical political group and the student activists were the prominent members of the Hong Kong Federation of Students which is a vocal critic of government policy.^[13]

2005 WTO conference

In the 2005 WTO conference, the Hong Kong Police referred to the Ordinance to arrest nearly a thousand protesting South Korean farmers in Hong Kong, but afterwards but no one could successfully be convicted.

Recent cases

The HKSAR government recorded the number of prosecution under Public Order Ordinance in 2011. There were total of 45 protesters charged under the Ordinance in 2011 compared with a total of just 39 since the handover. The 45 were among 444 protesters arrested were mostly in three massive protests. 54 prosecuted in total were police figures.^[14]

Two legislators from the radical political group People Power, Raymond Wong Yuk-man and Albert Chan Wai-yip were convicted under the Ordinance for organising and taking part in an unlawful assembly in the evening after the 1 July Protest in 2011 where Wong urged hundreds of People Power supporters to vow to march to the Government House. Protesters ended up with a sit-down on Garden Road after the police blocked the way of the march. It brought a serve traffic disruption.^[15] Sentencing has been adjourned until 16 May.

On 8 May 2013, Melody Chan, a 26-year-old volunteer of the Occupy Central movement was arrested for her alleged involvement in the blocking of roads in Central nearly two years ago, the same protest that Wong Yuk-man and Albert Chan took part in and were charged much earlier.^[16]

Criticisms

The Public Order Ordinance has been seen as the means to suppress Hong Kong people's civil liberties.

The Reform Club of Hong Kong objected the legislation of the bill when it was first introduced in 1967. It stated the bill made every peace-loving resident of Hong Kong a potential criminal and made innocent persons who were charged with offences against it would 'be in grave danger of conviction, if they could not afford a lawyer and were undefended.^[17]

The system of letter of no objection has been criticised as a license system in disguise. If the police were to enforce the system strictly, there would large numbers of people would have to be prosecuted. However it would become a dead letter in the statute book and contrary to the rule of law principle if the law is not faithfully put into practice without discrimination.^[5]

See also

• Hong Kong Basic Law Article 23
• Human rights in Hong Kong
• Macau national security law

References

Bibliography