青關會可以被控擾亂公眾秩序之類的控罪嗎？之二

This blog is replying the questions raised by KH in the preceding blog. You have to read in conjunction with the preceding blog to get a fuller picture. His questions are

Hi Bill, 

If you don't mind, may I ask the following questions :

1. //不論青關會用甚麼言詞，如果要拘捕他們，(1) 及(2)這兩個元素已經存在。// 

Why didn't the police arrest them ???

2. //(b)元素要「上述行為相當可能會導致社會安寧破壞」，「上述行為」在這件案的案情是，青關會用橫額圍着法輪功的檔位叫囂，妨礙及侵犯法輪功的人言論及表達自由。// 

From hindsight, the act of 青關會's 用橫額圍着法輪功的檔位叫囂，妨礙及侵犯法輪功的人言論及表達自由 did indeed 導致社會安寧破壞 ... thus, 青關會's act //甚至可以定罪//, right ??? 

Following the above line of thought, shouldn't the police take immediate action to at least remove 青關會 from the scene instead of just rounding them about with 法輪功 when the police arrived at the scene ??? 

Thanks.

KH

First of all, for avoidance of doubt, I have to make it clear that I write in the capacity of an onlooker instead of  an interested party in the whole affair. Though from past work experience, the names of many policemen are not unfamiliar to me since I at one time prosecuted a lot of their cases. Because of this background, I try my best to be as objective as possible trying to avoid subconsciously the pro-prosecution sentiment in me seeping into my mind which may defeat my impartiality when I wrote the series of comments on this issue. Whether my self proclaimed objectivity is tainted by my personal value judgement when the immense negative sentiment towards the government is so overwhelming is a matter for the wisdom of the readers to umpire.

I am not a spokesperson for the police, the first question is best answered by the police instead of me. I can only guess as to why the police did not take action. My guesswork will concentrate on the entire thinking process so that readers can think with me and see if I missed out anything. The guesswork derives from empirical work experience instead of far fetched imagination or creation of my own.

When people made comments about the abusing/insulting of the police incident, I suppose the factual basis came from what we saw on youtube. We do not know the film shooters' purpose of shooting the films. How objective the films were?  Were the films edited? Were the films able to depict the entire time from the first arrival of the police until their exit? Did the police do something when they first arrived missing out of which rendered subsequent comments unfair and unbalanced? These are questions I am unable to answer. I should say my series of comments were impaired by such limitations. That said, I have done the best I could get from the internet.

When you ask why not arrested the bunch of nuisance people, you may have to ask why arrested them as well. In the Mingpao interview, Lau Tat-keung, the retiring police superintendent provided some clues to us about the mindset of the frontline policemen. Lau said that before frontline policemen can arrest the protesters, they have to seek approval from senior ranking police officers. Applying this policy to the handling of the instant incident, there are 2 possibilities here. First, it did not occur to the commanding officer at the scene that an arrest was required, so no instruction was sought. Second, it occurred to the commanding officer at the scene that arrest was necessary and instruction was sought, say from a Chief Superintendent, and it was decided to wait and see. I don't know which is which.

Supposing the commanding officer at the scene felt that the confrontation between 青關會 and 法輪功 was only an altercation vehemency of which had not yet gone to the extent of a fight and there was no imminent need to arrest anyone. Was the decision a just one? I have discussed the legal aspect of the consideration and concluded the evidence did not establish a breach of the peace. So making no arrest was in all circumstances justified and consistent with the ambit of the norm. 

Was the commanding officer at the scene able to think in such depth if the legal issue is not yet a settled law? I suppose the commanding officer did not know about the complexity of the legal issue. The decision the commanding officer made was only an impromptu decision relying on professional policing knowledge. Though some would feel the inaction amounted to conniving the rogue to harass the innocent, the police had to strike a balance between maintaining law and order and the right to protest and freedom of speech. In hindsight there are always better ways of handling the incident but we cannot tick the clock back and replay it. Even if the best decision, say maintain a larger gap between the 2 groups, had not been made, then we have to consider whether there was serious fault in the handling of the case. I think not. If 青關會 was removed by the police, they could also accuse the police of encroaching their right, not to mention arrest. In the preceding blog, I mentioned that only 2 elements, namely, public place and behaving in noisy or disorderly manner,  of the charge of disorderly conduct were established, but neither element (a) or (b) could be established, so no arrest should be made.

The second question posted by KH was indeed answered in the preceding blog because my argument was the element of breach of the peace had not been established applying R v Howell as a yardstick.

When I was about to stop and call it a day, I just received a youtube clip posted to my preceding blog by C showing the teacher swearing at the Station Sergeant by saying she was to speak foul language and she actually said Fxxk Your Mother, loud and clear. I have already stopped criticising her she is no more than a piece of dust like me. I bear this dismissive attitude because I would rather concentrate on the legality of the issue instead of wasting time on an individual's disgraceful and hysterical outburst. It is now for the famous supporters of her to write something else to justify her more vulgar use of the 4 letter word while I just sit back to see another master piece of rhetorical junk devoid of substance and logical thinking.