The Public Order Ordinance () () (’POO’) is a piece of
primary legislation in Hong Kong. It codifies a number of old common law
public order offence
In criminology, public-order crime is defined by Siegel (2004) as "crime which involves acts that interfere with the operations of society and the ability of people to function efficiently", i.e., it is behaviour that has been labelled criminal ...
s. It imposes notification requirements for public processions and meetings which resemble a licensing regime. It also provides for the designation of restricted areas along the Hong Kong-China border and in the military installations. The 1967 Ordinance was enacted in the aftermath of the
1967 Leftist riots. For the following decades, the stringent control over public processions and meetings was relaxed incrementally until 1990s when it was brought in line with human rights standards. Upon
Hong Kong handover
Sovereignty of Hong Kong was transferred from the United Kingdom to the China, People's Republic of China (PRC) at midnight on 1 July 1997. This event ended 156 years of British rule in the British Hong Kong, former colony. Hong Kong was establ ...
, the amendments in the 1990s were decreed "not adopted as the laws of the
HKSAR
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China (abbr. Hong Kong SAR or HKSAR), is a city and special administrative region of China on the eastern Pearl River Delta i ...
" by the
NPCSC
The Standing Committee of the National People's Congress of the People's Republic of China (NPCSC) is the permanent body of the National People's Congress (NPC) of the People's Republic of China (PRC), which is the highest organ of state po ...
of China and therefore reverted.
History
Colonial period
A 1948 Ordinance of the same short title was enacted in 1948 by the British colonial government. The 1948 Ordinance transplanted the
Public Order Act 1936
The Public Order Act 1936 (1 Edw. 8 & 1 Geo. 6 c. 6) is an Act of the Parliament of the United Kingdom passed to control extremist political movements in the 1930s such as the British Union of Fascists (BUF).
Largely the work of Home Office ci ...
in the United Kingdom and the
binding over
In the law of England and Wales and some other common law jurisdictions, binding over is an exercise of certain powers by the criminal courts used to deal with low-level public order issues. Both magistrates' courts and the Crown Court may issue b ...
procedure in the criminal code of
Straits Settlements
The Straits Settlements were a group of British territories located in Southeast Asia. Headquartered in Singapore for more than a century, it was originally established in 1826 as part of the territories controlled by the British East India Comp ...
. It provided for the designation of restricted areas along the Hong Kong-China border.
The Public Ordinance Ordinance, 1967 was enacted in the aftermath of the
1967 Leftist riots. The government relied on a number of emergency laws to suppress the prolonged unrest. The bill was published on 6 October 1967 and was passed into law on 15 November 1967 by the
Legislative Council. The 1967 version of the law was a consolidation of various pieces of preexisting legislation with some substantive amendments. Before the enactment of the 1967 POO, the law dealing with public order was to be found in a previous POO, the Peace Preservation Ordinance, the Summary Offences Ordinance and in the common law.
Under the revised POO in 1980, it generated a licensing system for gatherings in public place.
The Public Order (Amendment) Bill 1986 raised concerns over the threat to freedom of speech as the government on the one hand took some potentially oppressive measures including its power to seize and suppress newspapers and other publications, off the books, but on the other hand strengthened provisions against "false news": the new provision stated that "any person who publishes false news likely to cause alarm to the public or a section thereof or disturb public order shall be guilty of an offence." The
pro-democrats
The pro-democracy camp, also known as the pan-democracy camp, is a political alignment in Hong Kong that supports increased democracy, namely the universal suffrage of the Chief Executive and the Legislative Council as given by the Basic L ...
argued the definition of "false news" was not clearly defined. In 1989, the government repealed the section on its own initiative.
In 1991 the final years of the colonial rule, the
Hong Kong Bill of Rights Ordinance
The Hong Kong Bill of Rights Ordinance (HKBORO), often referred to as the Hong Kong Bill of Rights, is Chapter 383 of the Laws of Hong Kong, which transposed the International Covenant on Civil and Political Rights so that it is incorporated ...
was enacted. A number of ordinances, including the POO that were thought to possibly violate the Bill of Rights had to be reviewed.
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
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty that commits nations to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedo ...
, and the licensing system was replaced by a simple notification procedure.
In October 1996,
Democratic Party Democratic Party most often refers to:
*Democratic Party (United States)
Democratic Party and similar terms may also refer to:
Active parties Africa
*Botswana Democratic Party
*Democratic Party of Equatorial Guinea
*Gabonese Democratic Party
*Demo ...
's legislator
James To
James To Kun-sun (; ; born 11 March 1963) is a Hong Kong lawyer and Democratic Party politician. From 1991 to 2020, To was a member of the Legislative Council of Hong Kong, representing the District Council (Second) constituency. In his fina ...
introduced a private member's bill to amend section 6 of the POO 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
The Secretary for Security is the member of the Government of Hong Kong in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters.
The post was created in 1973 and since the Principal Offic ...
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.
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
Hong Kong ( (US) or (UK); , ), officially the Hong Kong Special Administrative Region of the People's Republic of China (abbr. Hong Kong SAR or HKSAR), is a List of cities in China, city and Special administrative regions of China, special ...
. The PRC considered the Bill of Rights Ordinance and the 1995 POO to contravene the
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). Comprising nine chapters, 160 ...
. The
Preliminary Working Committee The Preliminary Working Committee (PWC) was a body set up by the Government of the People's Republic of China government for the preparation of the transfer of sovereignty over Hong Kong.
The first meeting of the PWC was held in July 1995 and ende ...
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 POO. Therefore, on 23 February 1997, the Standing Committee of the
National People's Congress
The National People's Congress of the People's Republic of China (NPC; ), or simply the National People's Congress, is constitutionally the supreme state authority and the national legislature of the People's Republic of China.
With 2, ...
passed a resolution that under Article 160 of the Basic Law that major amendments to the POO would be scrapped.
Following up the NPC's decision, the Office of the
Chief Executive Designate proposed amendments to the POO, together with the
Societies Ordinance
The Societies Ordinance is a piece of primary legislation in Hong Kong. It was enacted in 1911 and has undergone major revisions. The Ordinance regulates incorporated and unincorporated associations of persons (broadly defined as "societies") a ...
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. The CE Office scaled down the amendments on 15 May in result. The
Hong Kong Provisional Legislative Council enacted the new version of the POO on 14 June 1997, and it came into force on 1 July 1997.
The restored and amended provisions were seen as a halfway between the licensing and notification systems.
1997 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." Under the section 17A any failure to do is a criminal offence and may face an imprisonment term of up to five years.
The details of the current version of the POO 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.
*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.
*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.
*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 POO's requirements etc.
On the other hand, certain statutory safeguards are present in the POO.
*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.
*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 POO, hence restricting the Commissioner's discretion.
*The objection must be given as soon as possible and within the statutory time limit.
*The Commissioner is obliged not to object if he reasonably considers that the relevant statutory legitimate purposes could be met by imposing conditions.
*The Commissioner's discretion may only be delegated to police officers of inspector or above.
*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).
"Public place"
"Public gathering", "public meeting" and "public procession" under the POO is defined with reference to the term "public place". All of the above activities must take place in a "public place"
”Public place" is defined under s.2 of the POO as:
any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, and, in relation to any meeting, includes any place which is or will be, on the occasion and for the purposes of such meeting, a public place
The test for whether a place is a "public place" is "whether the persons who are entitled or permitted to have access to the particular location or area are so entitled or permitted qua their being members of the public or members of a section of the public" (''HKSAR v Chau Fung''
998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
4 HKC 652). In ''Kwok Cheuk Kin v Commissioner of Police'', the Court stated that "private premises to which access is restricted to the lawful occupiers’ invitees or licensees (in addition to, of course, the lawful occupiers themselves) would not generally be regarded as “public places” under the Ordinance" (
7. In ''R v Lam Shing Chow'', the accused was charged with "Fight in public". The appeal court quashed the conviction because the fight took place in a common corridor of a residential flat which is not a "public place". On the contrary, in ''香港特別行政區政府 訴 梁超明''
002 002, 0O2, O02, OO2, or 002 may refer to:
Fiction
*002, fictional British 00 Agent
*''002 Operazione Luna'',
*1965 Italian film
*Zero Two, a ''Darling in the Franxx'' character
Airports
*0O2, Baker Airport
*O02, Nervino Airport
Astronomy
*1996 ...
HKCFI 170, since the public is allowed to enter into the reception area of the Law Society located on 3/F Wing On House, the area constitutes a "public place" within the meaning of s.2 of the POO.
Cinemas and racecourses are public places despite the fact that the public might be required to purchase tickets for entry (''HKSAR v Pearce''
005
''005'' is a 1981 arcade game by Sega. They advertised it as the first of their RasterScan Convert-a-Game series, designed so that it could be changed into another game in minutes "at a substantial savings". It is one of the first examples of a ...
4 HKC 105 and ''HKSAR v Chau Fung''
998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
Events
By place
Europe
* Spring – Otto III retakes Rome and restores power in the papal city. Crescenti ...
4 HKC 652).
Areas within a university campus where the public has access would constitute a public place while other school campuses or private areas of university campuses would not constitute "public places".
Cases
The first charge under the POO 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
Civil disobedience is the active, professed refusal of a citizen to obey certain laws, demands, orders or commands of a government (or any other authority). By some definitions, civil disobedience has to be nonviolent to be called "civil". Hen ...
. 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 POO, and the
Hong Kong Bar Association
The Hong Kong Bar Association (HKBA) is the professional regulatory body for barristers in Hong Kong. The Law Society of Hong Kong is the equivalent association for solicitors in Hong Kong.
Victor Dawes SC is the current chairman of the Cou ...
condemned the police for singling out students for arrest. Due to large pressure from society, the
Secretary for Justice
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a v ...
Elsie Leung
Elsie Leung Oi-sie, Grand Bauhinia Medal, GBM, Justice of the Peace, JP (; born 24 April 1939) is a Hong Kong politician and solicitor. She was Secretary for Justice (Hong Kong), Secretary for Justice of Hong Kong from 1997 to 2005 and a member ...
decided not to prosecute the student leaders and other protestors.
''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
Leung Kwok-hung ( zh, t=梁國雄; born 27 March 1956), also known by his nickname "Long Hair" (), is a Hong Kong politician and social activist. He was a member of the Legislative Council of Hong Kong, Legislative Council, representing the N ...
of the
April Fifth Action
April Fifth Action () is a Hong Kong left-wing group named after the first Tiananmen incident of 5 April 1976. While the organization's Chinese name translates as "April Fifth Action", English-language media in Hong Kong usually refer to it as th ...
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
Chater Garden, located in the Central District of Hong Kong, is a public park directly east of the Legislative Council building. It is named after Sir Paul Chater, as is the adjacent Chater Road.
History
In the early days of British ru ...
for a procession. Civil activist
Leung Kwok-hung
Leung Kwok-hung ( zh, t=梁國雄; born 27 March 1956), also known by his nickname "Long Hair" (), is a Hong Kong politician and social activist. He was a member of the Legislative Council of Hong Kong, Legislative Council, representing the N ...
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 POO. 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
A suite, in Western classical music and jazz, is an ordered set of instrumental or orchestral/ concert band pieces. It originated in the late 14th century as a pairing of dance tunes and grew in scope to comprise up to five dances, sometimes with ...
of Hong Kong society. 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. On 8 July 2005, the Court of Final Appeal by a majority of 4 to 1 dismissed the appeal.
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
A suite, in Western classical music and jazz, is an ordered set of instrumental or orchestral/ concert band pieces. It originated in the late 14th century as a pairing of dance tunes and grew in scope to comprise up to five dances, sometimes with ...
", 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. 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.
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
The Hong Kong Federation of Students (HKFS, or 學聯) is a student organisation founded in May 1958 by the student unions of four higher education institutions in Hong Kong. The inaugural committee had seven members representing the four sc ...
which is a vocal critic of government policy.
2005 WTO conference
In the
2005 WTO conference, the
Hong Kong Police
The Hong Kong Police Force (HKPF) is the primary law enforcement, investigative agency, and largest disciplined service under the Security Bureau of Hong Kong. The Royal Hong Kong Police Force (RHKPF) reverted to its former name after the t ...
referred to the POO 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 the POO in 2011. There were total of 45 protesters charged under the POO 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.
Two legislators from the radical political group
People Power
"People Power" is a political term denoting the populist driving force of any social movement which invokes the authority of grassroots opinion and willpower, usually in opposition to that of conventionally organised corporate or political for ...
,
Wong Yuk-man
Raymond Wong Yuk-man (; born 1 October 1951) is a Hong Kong communist, pro-china, author, current affairs commentator and radio host. He is a former member of the Legislative Council of Hong Kong (LegCo), representing the geographical constitue ...
and
Albert Chan
Albert Chan Wai-yip (born 3 March 1955, Hong Kong) is a former member of the Legislative Council of Hong Kong representing the New Territories West constituency. He has served as a legislator from 1991 to 2016 except for the periods 1997–2 ...
were convicted under the POO 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
Government House is the name of many of the official residences of governors-general, governors and lieutenant-governors in the Commonwealth and the remaining colonies of the British Empire. The name is also used in some other countries.
Gover ...
. 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. 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.
2016 Mong Kok unrest
In the
2016 Mong Kok civil unrest
Civil unrest occurred in Mong Kok, Hong Kong from the night of 8 February 2016 until the following morning. The incident escalated from the government's crackdown on unlicensed street hawkers during the Chinese New Year holidays. Eventual viole ...
, the government prosecuted 36 protesters with the charge of rioting, a charge previously used only three times since 1970 which carried a maximum sentence of ten years' imprisonment under the POO. British human rights watchdog Hong Kong Watch criticised the charge of "rioting" and "incitement to riot" under the POO was vague and could lead to excessive punishment for protesters.
Criticisms
The POO is criticized as a mean to suppress Hong Kong people's civil liberties.
The
Reform Club of Hong Kong
The Reform Club of Hong Kong was one of the oldest political organisations in Hong Kong, existing from 1949 until the mid-1990s. Established by expatriates who were concerned about the Young Plan proposed by Governor Mark Aitchison Young in 1 ...
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.
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.
See also
*
Hong Kong Basic Law Article 23
Hong Kong Basic Law Article 23 () is an article in the Hong Kong Basic Law, Basic Law, the organic law, constitution of Hong Kong. It states that Hong Kong "shall enact laws on its own to prohibit any act of treason, secession, sedition, subvers ...
*
Human rights in Hong Kong
Human rights protection is enshrined in the Basic Law and its Bill of Rights Ordinance (Cap.383). By virtue of the Bill of Rights Ordinance and Basic Law Article 39, the International Covenant on Civil and Political Rights (ICCPR) is put in ...
*
Macau national security law
The Macau national security law (, ; pt, Lei relativa à defesa da segurança do Estado, ) is a law in Macau which prohibits and punishes acts of "treason, secession, and subversion" against the Central government, as well as "preparatory acts ...
References
Bibliography
*
* {{cite book, title="One Country, Two Systems" in Crisis: Hong Kong's Transformation Since the Handover, first=Yiu-chung, last=Wong, publisher=Lexington Books, year=2004, isbn=0739104926
External links
A Note on provisions relating to the regulation of public meetings and public processions in the Public Order Ordinance (Cap. 245)"Public Order Ordinance," the existing provisionsOutdated and Draconian: Hong Kong's Public Order Ordinance–
Hong Kong Watch
Hong Kong Watch is a non-governmental organisation (NGO) based in the United Kingdom that was established to monitor the conditions of human rights, freedoms and rule of law in Hong Kong. It was founded by British human rights activist Benedict ...
10 July 2019
Society of Hong Kong
Hong Kong legislation
Human rights in Hong Kong
Political repression in Hong Kong