Q1. 警察於 7 月25 日已經就 7 月 27 日元朗集會遊行 (下午 3 點到 晚上 11:59)發出反對通知書。如果我參與到時的集會同遊行,係咪犯法?

  • 係。
  • 根據《公安條例》(香港法例第 245 章) 第 13(1)(b) 條,公眾遊行只可以喺警方發
    出不反對通知書,或當作已發出不反通知書下,先至合法。
  • 但係,喺 7 月 25 日,警方不但冇發出不反對通知書,更加發出咗反對通知書。
  • 如果 7 月 27日嘅遊行繼續,咁遊行就會係《公安條例》第 17A(2)(a) 條下嘅未經
    批准集結。
  • 《公安條例》第17條亦賦予警方權力去使用合理所需武力去阻止舉行、停止或解
    散未經批准集結。

Q1. The police have issued a letter of objection on 25 July in respect of the proposed meeting and procession from 3pm onwards on 27 July at Yuen Long. Would it be unlawful if I took part in it?

  • YES.
  • Section 13 of the Public Order Ordinance (Cap. 245) provides that a public
    procession may take place if, but only if, the Commissioner of Police has notified
    the person that he has no objection to the procession taking place or is deemed
    to have issued a notice of no objection.
  • However, on 25 July, the Commissioner of Police has not only refused to issue a
    notice of no objection, but in fact issued a notice of objection.
  • If the procession proceeds to take place on 27 July, it would be an “unauthorized
    assembly” under s.17A(2)(a) of the Ordinance.
  • The Police will also have the power under s.17 of the Ordinance to use
    reasonable force to prevent the holding of such an unauthorised assembly, or to
    stop or disperse such an unauthorised assembly.

Q2. 警察可能告我咩罪?有咩刑罰?

  • 如果參與未經批准集結,或成為呢啲集結嘅成員:觸犯《公安條例》第17A(3)(a)
    條。
  • 如果舉行、召集、組織、組成或集合未經批准集結,或協助或牽涉舉行、召集、組
    織、組成或集合未經批准集結:觸犯《公安條例》第17A(3)(b)(i)條。
  • 兩者最高刑罰:HK$5,000罰款 + 監禁5年。
  • 根據以往有關第17A條嘅案例,似乎大部分被告人只係被判罰款。 但係,呢啲案
    例所涉及嘅集結無一宗係警察有發出反對通知書。法庭應該會視參與或舉行警察有
    發出反對通知書嘅非法集結為更嚴重。

Q2. What could I be charged with? What are the penalties?

  • Anyone who takes part in or forms part of such an assembly: an offence under
    s.17A(3)(a).
  • Anyone who convenes, holds, organizes, forms or collects such an assembly, or
    assists or is concerned in doing so: an offence under s.17A(3)(b)(i).
  • Maximum penalty for both of the above: $5,000 fine and imprisonment for 5
    years.
  • In previous cases concerning convictions under s.17A, it seems that the
    defendants have mostly been fined. However, none of those convictions
    concerned an assembly for which a notice of objection had been issued. Taking
    part in or convening an assembly for which a notice of objection had been issued
    beforehand is likely to be viewed more seriously by the courts.

Q3. 如果我路過元朗相關地區/見朋友/買老婆餅又點呀?

  • 如果你被起訴,咁就要睇下法庭信唔信你無參加該非法集會而只係路過 。
  • 當然法庭唔會淨係考慮你嘅講法,亦會睇埋其他客觀嘅證據,包括你身上有冇搜到
    一啲遊行相關嘅物品(標語、頭盔、索帶);亦有可能睇下會唔會有其他影片,顯
    示你做緊啲同你所聲稱嘅目的唔一致嘅行動;仲有就係會考慮你有冇聽到警察現場
    嘅呼籲,作出相應嘅反應。相反,如果你一家大細有老有嫩咁去元朗探朋友,證據
    上又應該好難話你係參與非法集結嘅。

Q3. What if I merely “passed by” the relevant area in Yuen Long to, for example, meet my friends or buy a “Lor Por Beng”?

  • This is a question of fact and whether in the end, if you are charged, the Court
    believes that you did not take part in the unlawful assembly.
  • The Court would take into account of other objective evidence in addition to your
    version of facts, such as whether there might be objects seized from you that are
    related to processions (e.g. slogans, helmets, plastic cable ties). The Court could
    also consider whether there are video clips showing your actions, and matter
    such as your reaction to the appeal of the police at the scene.

Q4. 《公安條例》話「集會」嘅定義不包括為宗教目的而進行嘅聚集或集結,咁我哋集埋一班人唱「Sing Hallelujah to the Lord」係咪就冇事呀?

  • 《公安條例》第二條將集會嘅定義不包括只係為咗宗教目的嘅集會,但不代表唱聖
    詩就一定冇問題。
  • 法庭睇嘅不只是你聚集或集結嘅名義或形式,法庭更加會睇你聚集或集結嘅實質內
    容及綜合其他因素(譬如係咪有宗教團體同神職人員嘅參與同參與程度,集會內容
    係咪有政治訴求等等),嚟裁定有關嘅聚集或集結係咪只係為咗宗教嘅目的。所以, 通過聚集唱聖詩嚟表達訴求有一定嘅風險。
  • 遊行係無宗教原因等豁免嘅。

Q4. Since the Ordinance defines that a “meeting” does not include any gathering or assembly organized exclusively for religious purposes, does it mean that if A group of us with more than 50 people joined together to “Sing Hallelujah to the Lord” then we would face no legal trouble?

  • Meetings convened exclusively for religious purposes are exempted under s.2 of
    the Ordinance.
  • But it does not mean that singing hymns in a group would exempt you from legal
    liability. The Court will not just look at the form of the meeting, but will also look at
    the actual content of the meeting and other relevant factors (such as whether
    there is participation by religious groups or clergymen, their degree of
    participation, whether the meeting includes promoting political messages, etc), in
    deciding whether the meeting is solely convened for religious purposes.
    Therefore, there could still be a risk if more than 50 of you joined together to sing
    hymns in order to promote political messages.
  • There is no religious purpose exemption for “processions”.

Q5. 去追悼會又點呀?

  • 為殯殮而舉行嘅集會先有豁免。 但係,為殯殮而舉行嘅公眾遊行,係需要事先通
    知警方同埋警方冇反對。
  • 追悼會亦需要事先通知警方同埋警方冇反對。如果唔係,又變成「未經批准集
    結」。

Q5. How about joining the memorial meeting?

  • A funeral is exempt from the definition of a “meeting” under the Ordinance.
    However, any “procession” for the purpose of a funeral does require advance
    notice to the police and a letter of no objection from the police.
  • Notice also has to be given to the police if there is a memorial meeting.
    Otherwise, the meeting could amount to “unlawful assembly”.

雙語文字版 (Word Version): https://tinyurl.com/y66p2w4e