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 ??? 



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. 

16 則留言:

  1. 回覆
    1. Thanks. The gladiator is spared of a brutal execution then.

    2. Maybe it is better for me to give some explanation why gladiator is used here. It is widely known thumb up/down originates from the ancient Roman gladiator contest. The gladiator is a "prisoner of war"/slave. He has a chance to become a free man if he wins the fight in the contest. When the loser is on the ground, the winner will look at the king before he decides what to do. If the king thumbs up, the loser's life is spared. If the king thumbs down, the winner will thrust his knife into the loser's chest.

    3. Actually and historically, it is the other way around. The signal was given to the victor of the fight, so it was victor who needed to act according to the Editor's command (the one who gave the decision, usually a Senator or the Emperor).

      Thumb-down meant drop/stay the weapons, so the loser would be spared effectively. A thumb turned thrusting to the heart or going across the throat means killing the loser.

    4. You can see it here: http://historywithatwist.blogspot.ca/2011/01/gladiators-thumbs-up-or-thumbs-down.html

    5. Thanks. I have the misconception all along then.

    6. Everybody has this misconception because of Hollywood movies.

  2. Hi Bill, thanks so much for spending extra time to answer my questions ...

    Some shoe-shining stuff first :-) ... I come to know of your blog through a friend of mine who knows you personally and says very highly of your in a very respectful manner ...

    I am living much further away and left HK much earlier than you did ... I am interested in this case only because of the law involved, not because of Ms Lam nor some political views of the others ..

    Thanks for pointing me to R v Howell ...

    //Howell案對breach of the peace這樣解釋:

    ....we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done. There is nothing more likely to arouse resentment and anger in him, and a desire to take instant revenge, than attacks or threatened attacks upon a person's body or property.//

    I find the above 解釋 quite restrictive as it zones only on a person's body or property and in this present case between 青關會 and 法輪功, it is not readily clear if any 法輪功 member's body or property was in jeopardy ...

    I also read the following from the case's judgement (http://www.hrcr.org/safrica/arrested_rights/Regina_Howell.htm) :

    On the defendant's appeal against conviction: --

    Held, dismissing the appeal, ...

    (2) That the behaviour that caused a constable to believe that a breach of the peace had or would occur had to be related to violence and
    such a breach occurred whenever harm was actually done or was likely to be done to a person, or in his presence to his property, or a person
    was put in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance (post, p. 509B-C).

    I think the key words here are violence, harm and other disturbance ...

    I think 青關會's acts do fall under other disturbance ... then, the two key remaining questions are violence and harm ... some may say no as 青關會 has done nothing; what they did was merely circling 法輪功 in nose range ... but hey, the world has changed so much now -- say, for example, cyber bullying today is indeed violence though no physical contact, and thus, harm shouldn't be restricted to bodily harm or physical damage to property ...

    I think there is already enough said on this case and I respect your point that we should wait a bit as 擾亂公眾秩序案正在終審法院排期聆訊 ...

    Lastly, let me share this blog entry with you :


    It says :

    ... [the law] affords us (the police) the power to ensure that the Queen’s peace is not disturbed ...

    ... The ability to arrest to prevent a breach of the peace is useful to officers as it offers a fairly simple way to prevent any substantive criminal offences from taking place and to give the person arrested the chance to calm down a little before he or she does something that they may come to regret.

    Maybe the police should have arrested 青關會 and Ms Lam so that no one may come to regret (just joking :-)) !!!

    Anyway, Biil, thanks so much for your time on this ...


  3. Since we are trying to form a humanist association, I'm going to comment on the method instead of the conclusion.

    "When you ask why not arrested the bunch of nuisance people, you may have to ask why arrested them as well".

    This is the hallmark of clear and logical thinking. Law enforcement is a positive action, and any suggestion to have this positive action needs to be supported by positive evidence and argument. Non-enforcement is a negative "action", and it should be the default position because enforcement will inevitably infringe upon someone's freedoms. Therefore, unless we have a good case arguing for enforcement, we should maintain our default position, so freedoms would not be infringed unnecessarily, i.e. the potential cost is reduced to the lowest level possible, given what we know at the time.

    If anyone can come up with a good argument for police enforcement in this case, using good evidence and reason, I'm ready to switch my view upon seeing that.

  4. Now I'm going to comment on the substance. KH said, "The ability to arrest to prevent a breach of the peace is useful to officers". Sure, many people hold this opinion, and we need to think about it carefully.

    We need to ask what is the nature of "breach of the peace" and how does it differ from other criminal activities. Can we suspect some people is going the breach the peace like we suspect some people wandering the street at night is going to steal a car? Sticking to the breach of peace, most of the time we don't know and cannot act on it unless the breach has already happened. Police can only prevent people to do that if they have good reason to believe the peace is going to be breached. Reason has to be supported by evidence, so if a group of people bring pitchforks, cocktails, torches and other items of similar nature to the assembly, then we have reason to stop these people to enter into the area. Remember this, members of 青關會 have their freedoms too, and their freedoms should not be restricted without good reasons.

    1. Folks,

      You have overstated the ability of a piece of dust.

      Before we apply the concept of breach of the peace, we have to look at the nature of the event. Political protests and demonstrations should be treated differently from the genuine criminal activities. It is reasonable for the police to apply a generous and relaxing standard. It is not a double standard if the police apply the same attitude and policy when handling protests by different political groups. Many commentators fail to see the difference here. If the 青關會 rogues were arrested in the incident, next time when the democratic groups doing the same thing would also be arrested. Not arresting or segregating the 青關會 rogues resulting in the police being called 公安. If 青關會 rogues and Ms Lam were both arrested, do people also called the police 公安? If the police arrested 青關會 rogues and applying the same standard, next time arrest democratic protestors, there will also be all sorts of names and accusations. Do critics themselves adopt double standard as well? It is so pathetic! Many of them do not even realize their own fallacies.

      I have read the UK policeman's blog KH referred me to. I approve without demur the following paragraph he wrote,

      "On the street an arrest for a breach of the peace is often a last resort and will take place when we’ve made every effort to try and diffuse a situation through other means."

      This UK policeman is not a 公安, right? If you agree with what he said, did the HK police in the instant case try to defuse the situation while Ms Lam tried to aggravate the situation? Without her aggravation, the incident was just another display of stupidity in HK happening umpteen times a week. No one will give a damn. But now, the matter proliferates, wasting more and more time and energy on conflicts.

      KH, I am sorry to say, your citation that "... [the law] affords us (the police) the power to ensure that the Queen’s peace is not disturbed ... " from the same blogger, was taken out of context. He was trying to explain the history of the police power. This statement basically refers to the empowering origin---- the Justices of Peace Act 1361, some 650 years ago.

  5. Thanks, 標少 and montwithin, for taking the time to expand on you two's views on this case ...

    As I said in my previous comment, I think already enough said on this case so this time I'll try to make it short ...

    1. I think 標少 may have thought too much ... it is not my intent to argue if there is double standard or being 公安 on the part of the HK police ... all I want to ascertain is whether or not 青關會 has committed an offence in law ...

    2. I think the key determining factor to judge 1 is breach of peace ...

    3a. I think the concept of breach of peace still has ample room left for subjective interpretation ... I think 青關會 did indeed breach the peace between 青關會 and 法輪功 and the city at large, and it seems to me that 標少 and montwithin may think otherwise ...

    3b. I have to admit that I did get hung up on the fact that 青關會 did circle 法輪功 right in front of their eyes ... maybe you guys disagree and argue that well, the circling was in fact at arm's length :-) ... then, it is subjectivity that prevails ... I could only say that if I were circled by some ones on purpose in such a sniffing distance, I'd without a doubt feel that I was put in fear of being harmed ...

    3c. I do respect that 青關會 does have the freedom of speech ... but what if their exercise of such freedom, by circling 法輪功, is infringing on others' exercise of the same freedom ???

    4. Not a key point but with no legal training on my part, I am not sure if 香港法例第245章《公安條例》第17B(2)條 has the same empowering origin from the Justices of Peace Act 1361 ... if it does, hehe, my citation may not be that far out of context ...

    Anyway, once again, I think enough said on this case and we should all wait as 擾亂公眾秩序案正在終審法院排期聆訊 ...

    Thanks ...

    Respectfully yours,

    1. KH,

      If you were completely surrounded and prevented from going where you want, that would be an unlawful detention. Falun in our case was not completely surrounded and their personnel could and did move around; otherwise, they would not be able to take the videos.

    2. Just give you a brief reply here on one of the points. The rest may be settled by the impending Court of Final Appeal decision. Also, see if my next blog can answer the core question raised here.

      I refer to your para 4 above. The closest HK legislation resembling the Justices of Peace Act 1361 is S.61 of the Magistrates Ordinance (Cap 227), I quote,

      (1) The power of a magistrate, on complaint of any person, to adjudge a person to enter into a recognizance and find sureties to keep the peace or to be of good behaviour towards such first-mentioned person shall be exercised by an order upon complaint, and the provisions of this Ordinance shall apply accordingly, and the complainant and defendant and witnesses may be called and examined and cross-examined, and the complainant and defendant shall be subject to costs, as in the case of any other complaint. (See Forms 34-36)
      (2) The magistrate may order the defendant, in default of compliance with such last-mentioned order, to be imprisoned for 6 months.

      The Public Order Ordinance was created in the aftermath of the 1967 riot. The purpose of creating this ordinance clearly aimed at a wider perspective.

  6. 請看戴耀廷在信報的撰文http://www.hkej.com/template/dailynews/jsp/detail.jsp?dnews_id=3779&cat_id=6&title_id=618609,似異於閣下之觀點;平情而論,任何事都要講人情同道理:一個普通人,必認同分隔是最起碼的做法;倘青關會不從而警察再嘗試拉封鎖線免事情鬧大,合情合理也。現在只按例做嘢,過得了道理卻失落了人情,不智也。BTW,看了最新的短片,也認同閣下之判斷:林小姐確似潑婦駡街。

    1. 我剛巧登了一篇來討論教授的文------青關會可以被控擾亂公眾秩序之類的控罪嗎?之三