The whole car and the driver were arrested for waving the Hong Kong flag inside the car, and the passengers were forced to apologize to the police
On the night of March 31, a taxi drove near the junction of Avian Street and Nathan Road, singing “Glory to Hong Kong” with the people there. Someone in the taxi waved a flag.
Later, riot police arrived and ordered the passengers to get out of the car. They also stopped and searched the driver and passengers, including a 10-year-old child. They also found a flag bearing the words “Liberate Hong Kong Revolution Of Our Times” and said, “there is a price to pay for being stylish”. Subsequently, the police also ordered the woman searched to apologize loudly. Mongkok North District Councillor Siu Tak-kin was there to find out what was going on, but the police officers there paid no attention.
Police said a taxi was driving slowly along the Nathan Road slow lane towards Mongkok when it kept honking its horn and blaring music, with passengers on board sticking out their windows and waving flags. Police believe they were disorderly and affecting other vehicles and road users in a public place. Three men and one woman, aged between 12 and 28, were arrested on suspicion of disorderly conduct in a public place.
The offence of “disorderly conduct in a public place” generally refers to section 17B(2) of the Public Order Ordinance. Although the section is entitled “Disorderly conduct in a public place”, it does not mean that disorderly conduct is an offence. The provision clearly states that the prosecution must first prove that the defendant engaged in disorderly conduct, etc., and then prove that the defendant intended to provoke a breach of the peace, or that his conduct was likely to cause a breach of the peace.
According to the judgment of the Court of Final Appeal in the Jaco Chow Nok-hang case in 2013, a defendant cannot be convicted of breach of the peace even if he himself breaches the peace, as the defendant must have attempted to provoke another person to breach the peace, or his conduct is likely to cause another person to breach the peace. As to the definition of “breach of the social peace”, the CFA adopted the interpretation of English case R v Howell that the social peace is breached when a person (1) is injured or likely to be injured, (2) his property is damaged or likely to be damaged or (3) fears that he will be injured.
Practising barrister Douglas Kwok King-hin highlighted that court cases have repeatedly stated that mere disorderly conduct does not constitute an offence and that the police should not make an arrest based on a literal interpretation that a member of the public is disorderly. Furthermore, in the present case, for example, Kwok considers that merely singing and waving flags in a taxi is at most a violation of some traffic regulations, which has not even reached the level of disorderly conduct under the Public Order Ordinance and cannot even satisfy the first element of the charge, not to mention further inciting others to breach the peace of society. He criticized the police for completely misinterpreting the provisions of the law, making absurd arrests and violating people’s personal freedom and human rights and should be sanctioned.
Anson Wong Yu-yat, a practising barrister, challenged the police’s misinterpretation of the law and similarly held that the conduct in question did not constitute a disorderly conduct and therefore would not commit an offence under 17B(2).He also said that if the police logic holds, citizens participating in peaceful rally singing and waving flags will also be charged with public disorderly conduct. Wong stressed that even if a person disrupts the order, as long as he does not incite those around him to use violence, it is generally difficult to constitute a breach of social peace. And police officers are professionally trained and theoretically do not hit people just because of a song and a flag. So social peace will not be breached either.
The Court of Final Appeal also made clear in Jaco Chow Nok-hang case that the law’s assumption that police officers generally do not respond to acts such as insults with violence. This effectively precludes the possibility that police officers will unlawfully respond to disorderly conduct with violence.
Laws of Hong Kong, Cap. 232A
Police (Discipline) Regulations Part 1-3:
2) The offences against discipline are—
(j) making a statement which is false in a material particular in the course of his duty or in connexion with the discharge by the police force of any of its duties or functions;
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