刑事檢控科各律師/高級律 - Department of Justice

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could not be taken to refer only to witnesses. It was possible that a
number of persons committed the offence together. According to
the magistrate’s line of reasoning, if a person created a disturbance
in the public gallery and a witness joined in, these two persons
could not be jointly charged under s 17(c) but would have to be
dealt with separately. This was inconsistent with the provisions of
s 17(c). It seemed that the magistrate’s analysis focused only on
subsections (a) and (b) from which inferences were drawn but
ignored subsection (c) per se;
(5) Although Mr Justice Woo made no mention of s 8 in the
judgment of HKSAR v Leung Kwok-hung, the court agreed that
there was no need for the judge to discuss the other provisions one
by one. As there was no significant difference between the basic
facts of the two cases, the magistrate should have followed the
precedent as a matter of legal practice. The magistrate’s handling
of this case deviated from the basic common law principle of stare
decisis. The previous case was binding upon the magistrate;
(6) Both s 8 and s 17(c) were applicable to the conduct of the
Respondents and the two charges were not mutually exclusive.
The prosecution’s choice of s 17(c) was obviously based on the
consequence brought about by the Respondents’ conduct. The
prosecution did not err in law. The major difference between the
two charges lay in difference between the consequences of
conduct, which also explained the substantial difference in
maximum penalties;
(7) Even if s 17(c) was unclear in its structure or wording, the
magistrate should not have interpreted and applied the provisions
in such a narrow sense. The provisions were intended to safeguard
the dignity and efficiency of the working environment in the
Legislative Council. That was not to say that other people were
not allowed to express their views, but if the ways and means of
their expression caused interruptions, the prosecution could
institute a charge under the more severe s 17(c);
(8) For the above reasons, the court’s answer to the first
question was ‘yes’ - the magistrate erred on a point of law;
(9) The questions of law involved in the present case were in
fact rather straightforward but the magistrate had misinterpreted
the law. If the case was remitted to the magistrate, it might cause
injustice to the Respondents. Since the questions had been
clarified, it would not be necessary to remit the case to the
magistrate or to order a retrial. This, however, should not be taken
to mean that the Respondents’ conduct on that occasion was to be
condoned. The dignity of the Legislative Council should be
upheld and safeguarded.