FACV No. 3 of 2014

IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2014 (CIVIL)

(ON APPEAL FROM CACV NO. 244 OF 2012)

____________________ BETWEEN

T Respondent

and

COMMISSIONER OF POLICE Appellant

____________________ Before: Chief Justice Ma, Mr Justice Ribeiro PJ,

Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Neuberger of Abbotsbury NPJ

Dates of Hearing: 20 – 21 August 2014

Date of Judgment: 10 September 2014

____________________

J U D G M E N T ____________________

Chief Justice Ma: 1. The issues for determination in this appeal concern s 4 of the Places

of Public Entertainment Ordinance Cap 172 (“the PPEO”),1 which requires a

1 For the relevant text, see para 3 below.

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licence to be obtained by any person who keeps or uses “any place of public

entertainment”. There are two issues, in broad terms: the meaning of a “place of

public entertainment” and the constitutionality of the licensing regime under the

PPEO. The determination of these issues give rise to important consequences as

far as the holding of public entertainment on public streets or other publicly

accessible places in Hong Kong is concerned.

2. For the reasons which appear in the comprehensive judgment of

Mr Justice Ribeiro PJ, with which I fully agree, this appeal should be allowed.

However, in view of the divergence of views among the members of the Court,

I ought briefly to emphasize a few points regarding the first issue, which

involves an exercise in statutory construction. According to the Court of Appeal

and the majority in this Court, the meaning of a “place of public entertainment”

should be restricted to a place where there is controlled admission. By

controlled admission, I take this to mean some form of control over the

admission of persons into a place, with the ability to exclude such persons from

entry into that place. Accordingly, public streets or a section thereof and other

public places to which the Ordinance might otherwise apply, unless there is this

element of controlled admission, would be outside the ambit of s 4 of the

Ordinance. The view of the Court of Appeal was that as far as streets to which

the public had access were concerned, they would come within s 4 only if the

relevant area where the entertainment took place, was cordoned off or enclosed.

The declaration sought by the Applicant in the judicial review proceedings (the

Respondent in the present appeal) was that s 4 did not include “an open space

area (not being enclosed)”. Before us, counsel for the Applicant2 argued that the

element of controlled admission had to be present.

2 Mr Hectar Pun, with him Mr Newman Lam and Mr Albert Wong. The Appellant was represented by

Mr Johnny Mok SC and Mr Abraham Chan.

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3. It is unnecessary for me to set out the facts; they are amply

described in the judgments of Mr Justice Ribeiro PJ and Mr Justice Fok PJ. The

relevant provisions in the PPEO to construe are s 4 which uses the term “place

of public entertainment” and the interpretation provision, s 2, which defines this

term and in doing so refers to the words “public entertainment”:-

“s 2 Interpretation ….. “place of public entertainment” (公眾娛樂場所 ) m eans –

(a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b) any vessel, in or on which a public entertainment is presented or carried on whether on one occasion or more. “public entertainment” ( 公眾娛樂 ) m ea of this Ordinance to which the general public is admitted with or without payment. ….

s 4 Licences for places of public entertainment

(1) No person shall keep or use any place of public entertainment without a licence granted under this Ordinance.

(2) Any person who contravenes subsection (1) shall be guilty of an

offence and shall be liable to conviction to a fine at level 4 and imprisonment for 6 months, and to a further fine of $2,000 for every day during which the offence has continued.”

For completeness, I would also refer to the definition in Chinese of “public

entertainment”:

“公眾娛樂”(public entertainment) 指本條例所指的讓公眾入場的任何娛樂，而不

論是否收取入場費;”

4. The proper construction of the provisions just set out is critical in

the present case. The starting point in any exercise of statutory interpretation is

to look at the context and purpose of the relevant provisions. As has been stated

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and reiterated in numerous recent decisions of this Court,3 it is to context and

purpose that one looks first in examining the words under scrutiny. One does

not begin by looking at what might be termed “the natural and ordinary

meaning”, much less I would add a literal meaning, and then put the onus on

anyone seeking to advance different meaning to establish some ground which

compels acceptance of that different meaning.4 It is context and purpose that

will, in the vast majority of cases, be determinative of the meaning of the words

sought to be construed, rather than attempting as a starting point to look at

words in a vacuum.

5. In the case of the PPEO, the context and purpose of the Ordinance

is clear: it is public safety. The title of the statute emphasizes the public nature

of it, and the contents of both the Ordinance and the Regulations thereunder deal

predominantly with issues of safety. There is also an associated purpose which

is clear from the contents of the Ordinance, namely that pre-planning (which

involves risk assessment) is very much seen to be an integral part of public

safety. By pre-planning I mean the requirement in obtaining a licence under the

PPEO to give notification 42 days prior to the event to a number of different

government departments, as may be appropriate, such as the Commissioner of

Police, the Director of Fire Services, the Director of Housing, the Building

Authority, the Director of Marine and the Director of Electrical and Mechanical

Services. While provisions in other Ordinances to which we have been referred

do involve aspects of public safety,5 they enable the police to take action only

as and when incidents or situations suddenly occur. In other words, they do not

cater for any form of precautionary measures regarding public safety to be taken. 3 Such as Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, at paras 75-77; Fully Profit (Asia)

Ltd v Secretary for Justice (2013) 16 HKCFAR 351, at para 15. 4 See Vallejos at para 76. 5 Such as s 10 of the Police Force Ordinance, Cap 232; s 17 of the Public Order Ordinance Cap 245 (in

relation to public gatherings).

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The closest Ordinance in this respect is perhaps the requirement to give notice of

a “public meeting” under s 7 of the Public Order Ordinance, but, as can be seen

from the interpretation section of that Ordinance,6 the ambit is limited.

6. With this approach in mind, I turn to the exercise of construing the

relevant provisions of the PPEO identified earlier.

7. The critical words to be examined are the “place of public

entertainment” to which the PPEO applies. Here, the definition of those words7

refer to “any place, building, erection or structure”. The places intended to be

covered are wide and, in view of the context and purpose of the Ordinance,

intended to be so, although I accept there are limits as articulated by

Mr Justice Ribeiro PJ. 8 What is clear, however, is that it makes no sense

artificially to cut down the wide meaning of the word “place”. In view of what

the Ordinance seeks to achieve, in adopting a purposive approach to statutory

construction, this must be right.

8. Mr Pun argues that the Ordinance, in particular s 4, can only apply

in a limited way: as stated above only to places where there is the element of

controlled admission. Is this right? Like Mr Justice Ribeiro PJ, I am not

persuaded.

9. First, nothing in the Ordinance, apart from the use of the word

“admitted” in the definition of “public entertainment”, remotely suggests that

controlled admission to a place is a pre-requisite to the applicability of the

licensing regime under the Ordinance. There are of course references in the

6 Section 2. 7 See para 3 above. 8 See para 55 below.

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Ordinance relating to the admission of persons to a place,9 but there are also

many provisions that do not.

10. Secondly, I can see neither policy reasons nor commonsense to

restrict the application of the Ordinance in the way advanced by the Applicant.

11. The use of the word “admitted” in the definition of “public

entertainment” in s 2 of the PPEO, which is crucial to the Applicant’s case, does

not on analysis compel this restrictive view of the Ordinance either:-

(1) The first observation to make is that the word “admitted” qualifies

the word “entertainment”.10 In context, as a matter of language

alone, the meaning of the word “admitted” is not used in the

physical sense of being allowed entry into a place. It is used to

emphasize the public nature of the entertainment to which the

Ordinance applies, that is, entertainments to which the public has

access as opposed to those entertainments to which the public does

not have access.

(2) However, Mr Pun submits that the words “public entertainment”

appear in the definition of “place of public entertainment” and

therefore as a matter of construction, the word “admitted” becomes

applicable to the place of public entertainment. One obvious flaw

to this argument is that it involves changing the applicability of the

word “admitted” from “public entertainment” to the “place of

9 Such as s 10(2)(f) of the PPEO whereby the licensing authority can specify the maximum number of persons

who may be admitted as regards an entertainment. 10 As stated in s 2, “entertainment” means the events, activities and other things set out in Schedule 1 of the

Ordinance.

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public entertainment”. Nothing in the language of the Ordinance

warrants this approach.

(3) More important, even if it were somehow permissible to transpose

or alter the meaning the word “admitted” in this way, it is difficult

to see how this can then result in the legal requirement that the

Ordinance only applies to places where there is controlled

admission. As a matter of statutory drafting, this seems a very odd

way, to say the least, to prescribe such an important legal

requirement; almost, as it were, by a side wind. As indicated earlier,

nothing in the rest of the Ordinance suggests this.

(4) It is even more difficult to arrive at this conclusion when one

returns to the context and purpose of the Ordinance. To say that the

Ordinance applies only to places, and public places at that, where

there is controlled admission, artificially limits the application of

the Ordinance in a way that does not make sense.

(5) Reference to the Chinese text11 provides little assistance as well.

Read literally and in a vacuum, the words in Chinese admittedly

envisage a physical entry into a place, but those words refer again

only to “public entertainment’ and not “place of public

entertainment”. Moreover, insofar as any doubt exists as between

the Chinese and English texts, s 10B of the Interpretation and

11 See para 3 above.

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General Clauses Ordinance, Cap 1,12 requires that regard must be

had to the object and purposes of the relevant Ordinance.

12. I am of course aware that whatever be the policy and purpose of

any Ordinance, the Court cannot give a meaning to words in a statute which

those words are incapable of bearing.13 The way Mr Justice Ribeiro PJ and I

have looked at the matter does not involve giving words a meaning they are

incapable of bearing.

13. I find it difficult to accept that the Applicant’s construction of the

statute, which has the consequence of creating the artificial requirement of

controlled admission, could ever have been the intent of the Ordinance. It

would make the PPEO inapplicable to events such as the present one where, at

least potentially, if not actually, large numbers of people gathered in a public

street. In such a situation, the PPEO would apply to public streets or places, or a

part thereof, where there existed this element of controlled admission (such as

where a part was cordoned off), but the Ordinance would be inapplicable where

this element was missing, albeit the same street was involved where there may

be even more people present. Neither the language of the Ordinance, nor

certainly its purpose, compels this result.

Mr Justice Ribeiro PJ:

14. This appeal concerns the scope of the duty to obtain a licence

imposed by the Places of Public Entertainment Ordinance (“PPEO”).14 In the

12 Set out in para 82 below. 13 See HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at para 63 (per Sir Anthony Mason NPJ); China

Field Ltd v Appeal Tribunal (Buildings) (No. 2) (2009) 12 HKCFAR 342 at para 36 (per Lord Millett NPJ). 14 Cap 172.

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Courts below, Lam J (as Lam VP then was) held that events like the event in

question required such a licence.15 The Court of Appeal disagreed.16

A. The facts

15. The facts are not in dispute. Since 2005, supporters of “LGBTI”17

rights in Hong Kong, as in other countries, have commemorated the removal in

1990 by the World Health Organization of homosexuality from its list of mental

disorders. They have done so by organizing an event to celebrate International

Day Against Homophobia (known as “IDAHO”). Their purpose has been to

raise the public’s awareness of anti-discrimination, equal opportunities and anti-

homophobia issues, and to provide a platform for the LGBTI community to

express their views and to share experiences of those issues.

16. The 7th IDAHO event was scheduled to be held on Sunday, 15 May

2011, between 3.00 pm and 5.00 pm in a portion of Lockhart Road between East

Point Road and Cannon Street which would then serve as a designated

pedestrian precinct closed to traffic (“the pedestrian precinct”).18 It was co-

hosted by certain LGBTI and human rights organizations including Tongzhi

Community Joint Meeting and Amnesty International Hong Kong.

17. The organizers notified the Commissioner of Police of the intended

event and provided information, “including a map indicating the exact location

of the IDAHO and the place where a stage would be erected” and a “draft

programme rundown”.19 They received a Notice of No Objection in accordance

15 HCAL 102/2011 (16 July 2012). 16 Cheung CJHC, Stock VP and Barma JA, CACV 244/2012 (18 September 2013). 17 Lesbian, gay, bisexual, transgender and intersex. 18 The area was regularly designated a pedestrian precinct between 4.00 pm and midnight on weekdays and

between noon and midnight on weekends and public holidays. 19 Agreed Facts §§17 and 18.

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with the Public Order Ordinance (“POO”)20 but were told by the Police that they

might require a temporary licence under the PPEO. They were advised to raise

this with the Director of the Food and Environmental Hygiene Department

(“FEHD”), the designated licensing authority.21 This the organizers duly did,

submitting an application for such a licence which identified the place of the

proposed entertainment and stated that a temporary stage (with dimensions not

exceeding 13 x 8 x 13 ft) was proposed; that the venue would be open on all

sides; and that 30 volunteers would assist.

18. The FEHD circulated the application to six government

departments 22 including the Commissioner of Police. After reviewing the

application, the Commissioner wrote to the FEHD on 9 May 2011 stating that he

had no objection subject to the applicant preparing an evacuation plan and

ensuring that the conditions imposed by the Fire Services Department, the

Buildings Department, the Environmental Protection Department and the FEHD

were fully complied with. The Commissioner also recommended that additional

conditions be included “for public safety and order”, including the provision of

at least 30 marshals; ensuring a smooth flow of pedestrians at the venue and not

occupying more than one vehicular lane at any time.

19. On 12 May 2011, the organizers withdrew their application stating

that “there will not be any ‘Entertainment’ activities during the IDAHO

on 15 May 2011”. This was acknowledged by the FEHD which informed the

other departments on 13 May 2011 of the application’s withdrawal.

20 Cap 245. Conditions stipulated included a requirement to notify the Police if the organizers became aware

of any drastic increase or decrease in the number of participants over or under the 250 people stated in the notice and arranging for 4 or 5 marshals and one first aid attendant to assist at the meeting.

21 Designated by the Secretary for Home Affairs under PPEO section 3B. 22 Director of Fire Services, Director of Buildings, Commissioner of Transport, Director of Highways, Director

of Environmental Protection and Commissioner of Police.

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20. The IDAHO event began with speeches given on the stage on the

themes mentioned above. At about 3.30 pm, what is now accepted to have been

a dance performance (and therefore an “entertainment”23 for PPEO purposes)

began and drew about 150 to 200 participants. It was due to last for

about 20 minutes but stopped after 10 minutes when a police inspector told the

organizers that what they were doing required a temporary licence under the

PPEO and involved committing an offence since they had none. The IDAHO

event continued with readings about torture, arbitrary arrest and imprisonment

suffered by homosexuals around the world. It ended at 4.30 pm,

about 30 minutes earlier than scheduled. No one has been prosecuted over this

incident.

B. Application for judicial review

21. Some seven months later, the applicant, who was one of the

participants in the IDAHO event, sought leave to bring judicial review

proceedings to challenge the position taken by the Police in requiring the dance

performance to be halted for want of a PPEO licence. Although the applicant

was well out of time, Lam J granted him leave to apply for judicial review

seeking:

“... a declaration that a place of public entertainment, for the purposes of the PPEO, does not include an open space area (not being enclosed) where a political demonstration occurs”; or alternatively,

“... a declaration that sections 2 and 4 of the PPEO to the extent that a place of public entertainment, for the purposes of the PPEO, does include an open space area (not being enclosed) where a political demonstration occurs” are inconsistent with Articles 27 and 39 of the Basic Law of the HKSAR ... and/or Articles 16(2) and 17 of the Hong Kong Bill of Rights ... of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 and/or Articles 19 and 21 of the International Covenant on Civil and Political Rights 1966 ..., and are unconstitutional”.

23 Which includes “an exhibition of dancing” (Schedule 1, para 2).

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C. The main PPEO provisions engaged

22. It will be necessary later to examine the overall structure of the

PPEO and the Places of Public Entertainment Regulations (“PPER”). For the

present, to facilitate discussion of the decisions below, the main PPEO

provisions relevant are set out as follows.

23. Section 4(1) lays down the duty to obtain a licence in the following

terms:

No person shall keep or use any place of public entertainment without a licence granted under this Ordinance.24

24. Three definitions are relevant to that duty:

“entertainment” includes any event, activity or other thing specified in Schedule1; “public entertainment” means any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment. “place of public entertainment” means -

(a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b) any vessel, in or on which a public entertainment is presented or carried on whether on one occasion or more;...

25. Schedule 1, referred to in the definition section, lists the activities

that constitute “entertainment” as follows:

“1. The events, activities and other things referred to in the definition of “entertainment” in section 2 of this Ordinance are the following or any part of any of them- (a) a concert, opera, ballet, stage performance or other musical, dramatic or

theatrical entertainment; (b) a cinematograph or laser projection display;

(c) a circus;

24 Section 4(2) makes contravention an offence punishable by a fine and imprisonment for 6 months, and by a

further fine of $2000 for every day during which the offence continues.

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(d) lecture or story-telling; (e) an exhibition of any 1 or more of the following, namely, pictures,

photographs, books, manuscripts or other documents or other things; (f) a sporting exhibition or contest;

(g) a bazaar; (h) ...

(i) an amusement ride within the meaning of the Amusement Rides (Safety) Ordinance (Cap 449) or any mechanical device (other than such an amusement ride) which is designed for amusement;

(j) a dance party.

2. In this Schedule “stage performance” includes a tragedy, melodrama, comedy, farce, pantomime, revue, burlesque, burletta, shadow play, an exhibition of dancing, conjuring or juggling, an acrobatic performance and any other stage event including an interlude.

3. In this Schedule, “dance party” means an event with all of the following attributes- (a) music or rhythmic sound of any kind or source is provided at the event;

(b) the primary activity at the event is dancing by the persons attending the event;

(c) either- (i) the number of persons attending the event exceeds 200 on at

least one occasion during the event; or

(ii) any part of the event occurs between 2 a.m. and 6 a.m.”

D. Lam J’s decision

26. As reflected in the first declaration sought, the construction

argument advanced on behalf of the applicant before Lam J, had two elements.

It was submitted, first, that the dance performance was not “entertainment”

because its sole or dominant purpose was not to provide entertainment but rather,

to stage a political demonstration.25 Lam J rejected that argument, holding that

the applicability of a statutory scheme to protect public safety could not depend

on a highly subjective criterion regarding the dominant purpose of a dance

25 Judgment §§46, 70-72.

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performance, especially since an artistic performance conveying a political

message could also aim to be entertaining.26 The Court of Appeal agreed27 and

that argument is no longer pursued.

27. The second contention was that the expression “place of public

entertainment” does not encompass an open space that is not enclosed. That is

an argument to which I shall return. It rested on the concept of the general

public being “admitted with or without payment” in the definition of “public

entertainment”. The argument was that while a “place of public entertainment”

could be an outdoor place, it had to be “a place where there is some form of

physical demarcation and the organizer can exercise control by way of

admission or non-admission of audience”.28

28. It was rejected by Lam J who held that for the PPEO to apply, it

was unnecessary for the organizer of a public entertainment to have exclusive

control over attendance; that the place where the IDAHO event was held was

sufficiently demarcated; and that the conditions imposed ensured that the

organizers had sufficient control “to satisfy the criterion of admission”. His

Lordship concluded that in the PPEO context, “the word ‘place’ should ... be

given its ordinary meaning which includes an open space or a portion of a street

which is not enclosed”.29

29. Turning to the constitutional objection, Lam J accepted that the

licensing regime does involve a restriction on the right to peaceful assembly

under Article 17 of the Bill of Rights. 30 However, he rejected the

26 Judgment §§73-77. 27 Court of Appeal §15. 28 Judgment §§50, 52. 29 Judgment §§59-69. 30 Article 17: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the

exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

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unconstitutionality complaint, holding that the PPEO did not lack legal

certainty;31 that the Ordinance pursued a legitimate purpose; that the licensing

requirements were rationally connected to achieving that purpose; and that those

requirements were a proportionate measure.32 Lam J therefore dismissed the

application for judicial review.

E. The Court of Appeal’s decision

30. The Court of Appeal disagreed with Lam J’s construction in one

crucial respect. Their Lordships essentially accepted the argument rejected by

Lam J, that a place could only qualify as a place of public entertainment if it was

physically cordoned off or enclosed, enabling the organizer to exercise control

by way of admission or non-admission of the audience.

31. Focusing on the definition of “public entertainment”, Cheung

CJHC (with whom the other members of the Court of Appeal agreed) stated:

“...the crux of the arguments turns on the reference in the definition to the general public being ‘admitted, with or without payment’ to the entertainment in question. In my view, this implies, or at least suggests, that the organiser or performer of the entertainment has, or is entitled to exercise, a certain degree of control as a matter of law; or exerts, or purports to exert, a certain degree of control as a matter of fact, over the place in which the entertainment is presented or carried on, so as to enable him to admit, or as the case may be, exclude members of the public from the entertainment.”33

32. His Lordship noted that the definition “refers to admitting the

general public to the entertainment, rather than to the place of entertainment”,

but held that “it does not make any difference”: “Admission to an entertainment

connotes the idea of admission to the locality where the entertainment takes

place”.34

31 Judgment §§81-85. 32 Judgment §§86-95. 33 Court of Appeal §28. 34 Court of Appeal §§29-30.

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33. Cheung CJHC considered the essential element of control

necessarily lacking “with an entertainment carried on in a public street where

access of the public to the portion of the street in question is not restricted by the

relevant authorities, and the portion of the street is not otherwise enclosed or

cordoned off by the organiser or performer.”35 He elaborated as follows:

“...the very idea of admitting involves the possibility of rejecting admission or excluding people from the entertainment. In the case of a public street, no member of the general public can be said to be ‘admitted’ or denied admission to an entertainment carried on there, or, to the place of entertainment in question, absent any authorisation by the Government to the organiser or performer to so control admission, or absent any unilateral attempt by the latter to do so by enclosing or condoning off the part of the street in question.”36

34. His Lordship reiterated:

“... the very idea of the general public being admitted to an entertainment, or the place of entertainment, involves the ability on the part of the organiser or performer of the entertainment to control admission by admitting or excluding people, whether on terms (such as the sale of tickets) or unconditionally. That ability may be a legal one, such as a licence granted by the Government to so use the place together with the express or implied authority to admit or exclude people from that place.”37

35. His Lordship envisaged an unauthorized exertion of de facto

control over admission resulting in a public street being cordoned off or

enclosed:

“That ability may, conceivably, also be derived from a de facto exertion of control over admission. For instance, an organiser or performer may, without having obtained any necessary authority from the Government to do so, enclose or cordon off an area in a public street, within which the entertainment is presented or carried on, and exert or purport to exert the right to control admission to the enclosed or cordoned off area.”38

36. Cheung CJHC concluded:

35 Court of Appeal §34. 36 Ibid. 37 Court of Appeal §35. 38 Ibid.

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“Either way, it is crucial, in order to satisfy the definition of the general public being admitted to the entertainment in question, for the organiser or performer to have that ability to control admission.”39

37. Adding:

“In reality, where a public street is involved, unless the place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.”40

38. On the present facts, his Lordship noted:

“There was never any application to the Government for authority or permission to use the pedestrian precinct in question in such a way as to give the organisers the ability to control admission to the pedestrian precinct. As a matter of fact, there was no attempt whatsoever on their part to exercise any such control on the day in question. Members of the public were as free as always to use the pedestrian precinct whether during the demonstration or the dance performance. We have seen videos taken of the events in question, as did the judge. What one sees is pedestrians, about their normal business, passing the area of the demonstration or performance, some glancing at it as they walk by, some pausing for a moment and then moving on, and some staying to watch. There was no question of the organisers admitting or not admitting the general public to the dance performance.”41

39. The Court of Appeal concluded that the dance performance “though

an entertainment, was not a public entertainment” and that “[neither] the

pedestrian precinct nor the place of the performance was a place of public

entertainment”.42 The applicant was granted leave to amend his application for

relief and was granted a declaration that the dance performance did not require a

licence under the PPEO.43 Having arrived at this result, the Court of Appeal did

not deal with the constitutional issue.

40. Mr Hectar Pun who appeared44 on the respondent’s behalf, also put

his case firmly on the necessity for the organizer to exercise control over

admission to the place where the entertainment was to be presented before it

39 Court of Appeal §36. 40 Court of Appeal §40. 41 Court of Appeal §53. 42 Ibid. 43 Court of Appeal §55. 44 With Mr Newman Lam and Mr Albert N B Wong.

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could qualify as a “place of public entertainment” caught by the PPEO, although

he did not support the Court of Appeal’s requirement that the site be physically

cordoned off or enclosed. It suffices for now to note that both those approaches

adopt as the central criterion for the PPEO’s application, the ability of the

entertainment’s organizer to control admission of would-be entrants to (and their

exclusion from) the place of its presentation.

F. The consequences of the Court of Appeal’s decision

41. In the foregoing paragraphs I have set out the main lines of the

Court of Appeal’s reasoning in its construction of the essential provisions.

There were various supporting arguments which I shall discuss in due course.

But I should say at once, with great respect, that I view the consequences of

their Lordships’ decision with serious misgivings.

42. I accept, of course, that where an organizer presents an

entertainment in private premises and charges for admission, he will naturally

exert control over admission both to the entertainment and to the place in or at

which the entertainment takes place. However, the PPEO covers entertainments

“to which the general public is admitted with or without payment” and applies to

“so much of any place ... whether temporary or permanent, capable of

accommodating the public ... in or on which a public entertainment is presented

or carried on…” This is apt to cover free entertainment open to the general

public, where access to the place of entertainment is unrestricted and the venue

not cordoned off or enclosed – a not uncommon situation, as common

experience shows.

43. As Cheung CJHC acknowledges:

“There can be little doubt that the purpose of the Ordinance and the licensing regulations made under it is to provide a means of effectively ensuring public safety

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and order, and to protect the participants to entertainment from the hazard and dangers associated with the gathering of crowds at places of public entertainment.”45

44. Given that premise, it is difficult to accept that it can have been the

legislative intent to confine application of the statutory scheme only to

entertainments which are presented in cordoned off or enclosed premises or

areas where the organizer is able to regulate admission. Adoption of that

criterion means that the PPEO’s precautionary safety regime is excluded in all

other cases, however many members of the public may take part. And as the

Court of Appeal points out, that criterion effectively excludes all entertainments

taking place in public streets or spaces.

45. Entertainments staged in public open spaces for members of the

public without participants having to gain admission to any cordoned off area

are not at all uncommon. Nor are entertainments taking place on public roads or

in public plazas at all rare. Pop concerts in a public park or square, attended by

hundreds or even thousands of fans come readily to mind. Crowds of revellers

throng the pavements, roads and public squares at New Year’s Eve countdown

celebrations and at street carnivals staged in entertainment areas like Lan Kwai

Fong or Times Square. Crowds are attracted to “fun” charity races which are

regularly held on public streets involving waiters carrying trays of drinks, cooks

tossing pancakes, or costumed teams bearing sedan chairs, to name but a few.

The general public flocks to events such as the traditional Cheung Chau Bun

Festival and the Lunar New Year parade of floats in Tsim Sha Tsui. Spectators

position themselves on stretches of the waterfront or around typhoon shelters

where traditional Dragon Boat races are staged. Sporting events 46 such as

marathons or bicycle races are run on public roads.

45 Court of Appeal §22. 46 “A sporting exhibition or contest” being a category of “entertainment”: Schedule 1, para 1(f).

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46. To attend such events, members of the general public are not

required to seek admission to any demarcated or cordoned off area. Why should

the acknowledged statutory purpose of providing a means of effectively

ensuring public safety and good order not apply on such occasions? If anything,

one would have thought that open entertainments with fluid, unregulated

attendance, have a particular need for precautionary planning under the statutory

licensing regime.

47. Against the background of these misgivings, I have arrived at a

construction of the relevant provisions which respectfully differs from that of

the Court of Appeal. In my judgment, viewed as a matter of language, viewed

purposively, historically and in the light of the decided cases cited, those

provisions supply no justification for confining the PPEO’s application in the

manner proposed by the Court of Appeal or by Mr Pun in this Court.

G. The Issue of Construction

48. As was recently re-iterated in HKSAR v Li Kwok Cheung George,47

the Court in HKSAR v Lam Kwong Wai48 and HKSAR v Cheung Kwun Yin,49

affirmed the need generally to interpret statutory language in the light of its

context and purpose, and not only when an ambiguity may be thought to arise.

It was also re-affirmed that the context of a statutory provision is taken in its

widest sense and certainly includes the other provisions of the statute and the

existing state of the law.50 Adopting that approach, I shall begin by examining

the language of the main provisions relevant before considering more broadly

the structure, purpose and history of the PPEO and the PPER.

47 FACC Nos 4, 5 and 6 of 2013 (5 June 2014) at §37. 48 (2006) 9 HKCFAR 574 at 606. 49 (2009) 12 HKCFAR 568 at §12. 50 Other matters which may legitimately be taken as indicating the statutory purpose were also noted in

Cheung Kwun Yin at §14, including the Explanatory Memorandum of a bill and a statement made by a responsible official of the government in relation to the Bill in the Legislative Council.

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G.1 The language of the main provisions

49. The main provisions are set out in Section C above. The starting-

point is section 4 which lays down the duty to obtain a licence by making it an

offence “to use or keep any place of public entertainment without a licence”

granted under the PPEO. To ascertain the scope of that duty one therefore has to

ask what constitutes a “place of public entertainment”. The PPEO gives that

phrase a cumulative definition.

50. It begins with the definition of “entertainment”. The PPEO

stipulates that it includes “any event, activity or other thing specified in

Schedule 1”. As we have seen, Schedule 1 is cast in broad terms and lists

various items such as musical performances, exhibitions, sporting contests and

(as in the present case) exhibitions of dancing.

51. It moves next to the definition of “public entertainment”. The

PPEO defines this as “entertainment” within the meaning of the Ordinance “to

which the general public is admitted with or without payment”. It is of the first

importance to note that by this definition, an entertainment becomes a public

entertainment because the general public are “admitted” to the entertainment. It

makes no mention of the place at which the entertainment is staged. It certainly

does not impose any requirement that the general public have to be “admitted”

to such a place before the duty to obtain a licence is triggered. As I have noted,

the Court of Appeal thought that there was no difference between being

admitted to an entertainment and being admitted to the place where it is to be

staged, holding that “Admission to an entertainment connotes the idea of

admission to the locality where the entertainment takes place”. I respectfully

disagree on this crucial point, but before I seek to develop the argument, the

final aspect of the cumulative definition should be examined.

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52. Building upon the first two definitions, the PPEO goes on to define

“place of public entertainment” as:

• so much of any place, building, erection or structure, • whether temporary or permanent,

• capable of accommodating the public • and any vessel

• in or on which a public entertainment is presented or carried on whether on one occasion or more.

53. It is at this third stage that the Ordinance turns its attention to the

place at which the public entertainment is presented. Having defined what

amounts to a “public entertainment”, the PPEO sets out the characteristics of

venues hosting public entertainments which fall within the section 4 duty. Once

more, the definition says nothing about admission to or exclusion from the site.

There is nothing to suggest that someone must exercise the power to admit or

exclude would-be entrants before the venue qualifies as a “place of public

entertainment”. Nor is there anything to suggest that the site must be cordoned

off or enclosed. A place of public entertainment may, of course, be subject to

regulated admission and may involve a cordoned off or enclosed area, but the

definition does not mention, let alone confine the duty to, sites exhibiting such

features.

54. It is an inclusive definition designed to cater for various different

kinds of venue at which a public entertainment might take place. It may, but

does not have to, consist of or to be located in a building or structure. It is

sufficient if it consists of “so much of any place, ... whether temporary or

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permanent, capable of accommodating the public ... in or on which a public

entertainment is presented or carried on whether on one occasion or more”.51

55. Accordingly, when applied to a “place” (as opposed to a building,

erection or structure), it is a definition with the following elements: (i) The

venue must plainly be identifiable as “a place” – an area whose boundaries are

ascertainable by description or depiction on a plan, a map, a chart or otherwise;

(ii) the place in question must be the site where the public entertainment is to be

presented or carried on; and (iii) it must also be a place which is capable of

accommodating members of the public. The venue will therefore generally have

two parts. It will embrace both the part of the site where the entertainment is to

be presented or held, such as a stage used by the performers or presenters; and

that part of the site which accommodates the members of the public in

attendance. The lay-out may of course vary and entertainers may venture into

the audience area while members of the audience may be invited onto the stage,

so that the two parts, while together constituting the “place of public

entertainment”, are not mutually exclusive. The point to note is that the

definition applies just as comfortably to places to which the general public has

unrestricted access as to enclosed venues where admission is regulated. Its

language furnishes no reason for distinguishing between them.

56. The Court of Appeal’s reasoning rests crucially on the definition of

“public entertainment” which distinguishes a “public entertainment” from an

“entertainment” by specifying that the former is an entertainment “to which the

general public is admitted with or without payment”. What the Court of Appeal

has done is to transpose admission to the entertainment to admission to the place

where the entertainment is to be presented, even though the concept of

51 See also section 7(c) which confers power to make regulations to provide for “the location of a place of

public entertainment generally or on or in any place, building, erection or structure and the circumstances, conditions and restrictions in or subject to which such location may be permitted.”

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“admission” plays no part in the definition of “place of public entertainment”.

The Court of Appeal proceeded from there to postulate that the requirement of

admission applied to the place connotes control over entry to that place and

implies an ability to admit some members of the public while excluding others.

It held that this further implies that the locality must be cordoned off or enclosed

to enable such control to be effectively exercised, leading to the conclusion that

without such physical means of segregation, a venue cannot qualify as a “place

of public entertainment” and no duty to obtain a licence arises. With respect, I

do not think the Court of Appeal’s gloss on the statute is justified.

57. The definition of a “public entertainment” is concerned with the

nature of the entertainment in question. It is not about the characteristics of the

site where it is presented. Having begun by defining an “entertainment” broadly,

the PPEO proceeds to limit its application to an “entertainment ... to which the

general public is admitted”. That phrase is properly understood as an

entertainment to which the general public have access – an entertainment open

to and staged for the enjoyment of the general public. This is in

contradistinction to an “entertainment ... to which the general public is not

admitted”.

58. The definition of “public entertainment” therefore aims to draw a

distinction between entertainments accessible to the general public on the one

hand, and private entertainments not so accessible on the other, making the

PPEO applicable only to the former. A band which plays music at a private

wedding party provides entertainment, but not entertainment to which the

general public is admitted. The same applies to the presentation of a film or

musical recital in a private club. To take a further example, a school play or

performance by a school orchestra attended only by the pupils and their parents

are not entertainments to which the general public is admitted. In such cases,

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the need to protect the safety and good order of the general public does not arise,

and the statutory purpose of the PPEO is not engaged. Such private premises

may well be subject to separate safety regimes, including, for instance, under the

Clubs (Safety of Premises) Ordinance.52

59. The definition so understood is straightforward. If the

entertainment is one open to the general public (with or without payment and,

one might add, whether anyone actually shows up to attend the performance), it

qualifies as “public entertainment” and comes within the licensing regime. This

applies whether or not the venue is cordoned off; whether or not admission to

the site is controlled; and whether or not it comprises a portion of a public street

or open space. This accords with the PPEO’s policy of promoting public safety

at entertainments to which the general public is admitted.

G.2 Only entertainments on private property with regulated access 60. In my view, transposing the word “admitted” from the definition of

“public entertainment” to the definition of “place of public entertainment”

(where that word is not found) has a further unwarranted effect: It confines the

operation of the PPEO’s safety scheme to entertainments which take place on

private property.

61. This is because, in the Court of Appeal’s view, such transposition

requires one to postulate that someone must have power to admit or exclude

members of the public to or from the place where the entertainment is to be

staged. That works perfectly well if the place in question is private property, but

where the entertainment is presented in a public street or public open space, the

notion of anyone controlling admission to the place where the entertainment is

to be carried on is something of a contradiction in terms. How can the organizer

or performer lawfully exclude members of the general public from what is, by 52 Cap 376.

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definition, a public street or public open space? It follows that the “controlled

admission criterion” has the effect of restricting the PPEO’s application to

entertainments on private property, where admission can be controlled.

62. The Court of Appeal came close to recognizing that this highly

restrictive view of the Ordinance is dictated by its construction, Cheung CJHC

observing that “... the very idea of admitting involves the possibility of rejecting

admission or excluding people from the entertainment. In the case of a public

street, no member of the general public can be said to be ‘admitted’ or denied

admission to an entertainment carried on there, or, to the place of entertainment

in question ...”53 However, the Court of Appeal thought that there was still

scope for the PPEO to apply to public entertainments presented in public streets

or spaces because the government might authorize “the organiser or performer

to so control admission”54 or because an organizer might exert de facto control

over admission without any prior authority from the government.55 Mr Pun was

more prepared to accept that confining the Ordinance’s scope to entertainments

on private property logically followed from his criterion of “controlled

admission”, but he too sought to argue that the presenter of an entertainment in a

public street or place might become subject to the PPEO if he obtained authority

from the government to control admission. He also submitted that the

Ordinance might apply where someone voluntarily subjected himself to it by

applying for a licence with a view to avoiding possible prosecution for

obstruction of a public place.

63. With respect, I do not think there is any shrinking from the

conclusion that a construction adopting a criterion of controlling admission to

53 Court of Appeal §34. At §40, Cheung CJHC added: “In reality, where a public street is involved, unless the

place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.” 54 Ibid. 55 Court of Appeal §35.

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the place of the entertainment56 (which I have called “the controlled admission

criterion”) excludes the Ordinance from applying to public spaces or to private

spaces to which the public is given unrestricted access. In my opinion, the

instances put forward for suggesting that the PPEO might still have a role to

play regarding entertainments in public places serve merely to highlight the

unsatisfactory nature of that criterion.

64. It is hard to see any logic or realism behind the suggestion that the

criterion of controlled admission might be triggered by applying for government

authority to control admission to the intended public place venue. Applications

for road closures or for cordoning off portions of public places may of course be

made under a variety of Ordinances authorising road works, digging MTR

tunnels, repairing or laying public utilities, and so forth. But what is being

suggested is that an application might be made to authorize control of admission

to a public place for the sole purpose of presenting a public entertainment at that

site. No one has been able to point to any statutory or other legal basis for

granting such authority (except perhaps the PPEO itself).

65. I would be prepared to accept that a notice of no objection under

the POO or a PPEO licence issued pursuant to an application which specifies the

setting up of a stage in a public place may provide lawful authority sufficient to

resist prosecution for obstruction by setting up the stage. But authorization to

close off a portion of a public street or place and for the organizers to admit or

exclude members of the public is an entirely different matter.

66. The logic is in any event hard to follow. The suggestion seems to

be that there might first be an application to give the applicant control over

admission into some portion of a public place and, if successful, that the

applicant would thereupon become subject to a duty under the PPEO (since the 56 Whether or not with the help of cordoning off or enclosing the site.

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criterion of controlled admission would be applicable by virtue of the prior

permission granted) to make an application all over again to present the

proposed public entertainment. It is hard to see how the hypothetical initial

application could have proceeded unless the purpose of segregating part of the

public place had been explained and accepted, which makes that application

hard to distinguish from an application made under the PPEO.

67. If what is being suggested is that the application for authority to

segregate a portion of the public place does indeed proceed on the basis of a

licence granted under the PPEO itself, then the authority to control admission is

the outcome of a successful application and not the criterion for deciding

whether the application has to be made in the first place.

68. Similar difficulties exist in relation to the Court of Appeal’s “de

facto” instance, 57 involving someone who, without any authority from the

government to do so, encloses or cordons off an area in a public street, and

presents the entertainment within the enclosure, controlling admission to the

scene. Since this would satisfy the criterion of controlled admission, it is

apparently suggested that the emergence of this situation could trigger a duty to

obtain a licence.

69. With respect, it is a revealingly unrealistic argument. Since it is

postulated that the organizer is already presenting the entertainment in the

controlled enclosure without having made any licensing scheme application,

why should anyone think that he would consider himself bound at that stage to

make a PPEO application? What would he be applying to be licenced to do?

The scheme aims to vet and then license entertainments proposed for the future.

The de facto instance turns the statutory scheme on its head. It proposes a

57 Court of Appeal §35.

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licence application to be made after the organizer has already gone ahead

without being licensed.

70. In reality, if the organizer took it upon himself to close off a part of

a public street or square and then to regulate entry by members of the public, he

would rapidly find himself arrested for obstruction of a public place and find his

enclosure dismantled.

71. Another point which emerges from this discussion is that the

licensing requirement benefits the organizers of a public entertainment in a

public street because a licence provides lawful authority for what might

otherwise amount to an unlawful obstruction if a stage or other structures are to

be set up. This has led to Mr Pun’s curious suggestion that while not bound to

obtain a PPEO licence, organizers of an entertainment in a public place may

voluntarily opt in to the licensing scheme in order to benefit from the

authorizations the licence confers. He submits that the licence somehow

“transforms the nature of the place” during its subsistence. It is hard to see how

if, as a matter of construction, the licensing scheme is inapplicable to such

entertainments, the licensing authority has power to issue licences to those who

volunteer to apply.

G.3 An unnatural construction? 72. The argument against the construction which I have put forward

reflects the Court of Appeal’s approach, namely, that “Admission to an

entertainment connotes the idea of admission to the locality where the

entertainment takes place”. On that basis, it was suggested at the hearing that

confining the use of “admitted” to the definition of “public entertainment” is

somewhat unnatural, “admission” being more appropriately used in connection

with admission to a locality, with the concomitant of a power of exclusion. It

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was argued that this was supported by the Chinese text,58 especially the words

“入場”.

73. Leaving aside the Chinese text for the moment, the argument raised

against the construction I have proposed involves two principal propositions

with which I take issue.

74. First, it involves the proposition that in defining “public

entertainment” as “... any entertainment ... to which the general public is

admitted with or without payment”, the definition necessarily imports as a

concomitant, the power to regulate and refuse admission.

75. I am unable to agree. I do not accept that where one refers to a

place to which persons are admitted, one thereby necessarily implies the

existence of a means of regulating admission and granting entry to some, while

turning others away. Thus, to state: “This is a park to which the general public

is admitted,” does not imply that those who wish to enjoy a walk or a picnic in

the park have to go through any process of admission involving possible refusal

of entry. The statement merely indicates that the park is accessible to or open to

the general public. There may be many points from which they may gain access

without anyone regulating admission. Of course, having entered the park there

may be rules of conduct to be observed, whether municipal by-laws, or if the

property is private, rules stipulated by the owner. But that is not inconsistent

with unrestricted admission.

76. Secondly, the argument involves the proposition that the phrase “to

which the general public is admitted” is naturally to be understood as referring

to a place – that “admission” is naturally tied to a locality – so that one should

58 The Chinese definition of “public entertainment” ( 公眾娛樂 ) being “指本條例所指的讓公眾入場的任何娛樂，而不論是否收取入場費 ”.

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transpose the concept of “admission” found in the definition of “public

entertainment” to the definition of “place of public entertainment”.

77. I cannot accept that suggestion. As a matter of language, to say that

“X is something or some place to which the general public is admitted” means

that it is something or some place open to or accessible to the general public.

While that expression might most commonly be used in relation to a locality, it

is by no means confined to such usage.

78. Thus, one may say of a club that it has “membership to which

women are admitted”. That obviously means that membership of the club is

open to women. Of course, if a woman is admitted to membership, she would

naturally be entitled to use the club’s premises, but it is important not to elide

admission to membership with admission to such premises. They are quite

distinct matters. Thus, if one says of a club that it has “membership to which

women are not admitted”, it by no means follows that women are not admitted

to the club’s premises (as guests or otherwise).

79. Again, one might say: “The Hong Kong Bar is a bar to which

foreign lawyers with suitable professional qualifications are admitted”. Again, it

has the meaning of the local bar being accessible to or open to qualified foreign

lawyers. It does not connote admission to any locality.

80. To take another example, one might say: “The status of Hong Kong

permanent resident is a status to which persons satisfying the requirements of

Article 24 of the Basic Law are admitted”. That is a statement about eligibility

for a status, not admission to any locality.

81. There is accordingly, in my view, no justification for regarding the

concept “admitted” in the definition of “public entertainment” as having to be

read as tied to the place where the entertainment is staged rather than simply as

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identifying the types of entertainment (those to which the general public is

admitted) brought within the PPEO.

82. I accept, as did Mr Johnny Mok SC,59 that the Chinese text of the

definition of “public entertainment”, especially use of the expression “入場”,

carries a connotation of “locality” which, for the reasons I have given, does not

exist in the English text. It follows that, on my construction, a difference exists

between the two authentic texts which requires resolution in accordance with

section 10B of the Interpretation and General Clauses Ordinance 60 which

provides:

“(1) The English language text and the Chinese language text of an Ordinance shall be equally authentic, and the Ordinance shall be construed accordingly.

(2) The provisions of an Ordinance are presumed to have the same meaning in each authentic text.

(3) Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.”

83. With this in mind, I turn now to consider the object and purposes of

the PPEO.

G.4 The purpose of the PPEO and PPER 84. It is undoubtedly true, as Cheung CJHC pointed out, that the

purpose of the Ordinance and Regulations “is to provide a means of effectively

ensuring public safety and order, and to protect the participants to entertainment

from the hazard and dangers associated with the gathering of crowds at places of

public entertainment”.61

59 Appearing with Mr Abraham Chan for the Commissioner. 60 Cap 1. 61 Court of Appeal §22, quoting from the Affidavit of Tse Wing Yee, Winnie, Principal Assistant Secretary for

Home Affairs dated 6 March 2012, §31.

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85. Thus, the PPEO empowers the Secretary for Home Affairs to make

regulations to provide for measures against overcrowding, for the control and

prevention of fires, the maintenance of sanitary conditions and the maintenance

of peace and good order in a place of public entertainment.62 It also authorizes

regulations to be made regarding :

“...the location of a place of public entertainment generally or on or in any place, building, erection or structure and the circumstances, conditions and restrictions in or subject to which such location may be permitted.”63

Moreover, regulations may provide for the construction materials used, the

venue’s layout and matters such as the electrical wiring and lighting

arrangements for any stage erected.64 Detailed regulations have correspondingly

been made in the PPER.

86. To be more precise, the purpose of the legislation is to promote

public safety by means of a detailed precautionary licensing scheme aimed at

anticipating potential dangers and putting preventative measures in place before

the event occurs.

87. Thus, the statutory scheme requires an application for any proposed

use of a place of public entertainment to be made not less than 42 days65 before

the start of the entertainment. 66 This is to allow potentially interested

government departments to be consulted. Unless the application is refused

outright, the PPER require the licensing authority to forward a copy to the

Commissioner of Police, the Director of Fire Services, the Director of Housing

or the Building Authority, the Director Marine and the Director of Electrical and

62 PPEO section 7(e) and (f). 63 PPEO section 7(c). 64 PPEO section 7(d). 65 Or such lesser period as the licensing authority may allow. 66 PPER regulation 162(1).

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Mechanical Services as appropriate.67 There is also power given to officers of

appropriate departments to enter and inspect the proposed venue.68

88. If there is no objection from the departments circulated, the

applicant is required, not less than 28 days before commencement of the

entertainment,69 to supply a detailed plan of the place to which the application

relates,70 showing:

“ (i) each part of the place intended to be used for holding entertainment;

(ii) each part of the place intended to be used for seating or otherwise accommodating an audience (if any);

(iii) each existing and any proposed exit route from the place; (iv) the position or location in the place of any existing or proposed

permanent structure; (v) each part of the place in which it is intended that temporary barriers

may be erected or otherwise provided; (vi) the proposed or actual location in the place of all sanitary fitments;

(vii) the proposed or actual location in the place of fire service installations and equipment;

(viii) all or, as may be appropriate, any 1 or 2 of the following means by which ventilation of the place, or any part thereof, is provided, namely, windows, ducts or any mechanical means;

(ix) the proposed or actual location in the place of all laser equipment (if any); and ...

(c) in the case of a temporary structure, diagrams sufficient to illustrate the proposed method of construction and the spacing and scantling of structural members.”

89. Having obtained the details, the licensing authority has a general

power to issue a licence in suitable terms, specifying conditions designed for the

67 PPER regulation 162(2). 68 PPER regulation 169; made pursuant to PPEO section 7(g). 69 Or such lesser period as the licensing authority may allow. 70 PPER regulation 162(3).

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location and for the type of entertainment in question.71 Non-compliance with

any such conditions is made an offence.72

90. A purposive construction of the PPEO definitions to decide whether

a duty to obtain a licence arises must have regard to the licensing scheme as a

whole. It must recognize that the licensing requirement is imposed to enable a

risk assessment to be made in advance of the proposed event by government

departments possessed of expertise and experience relevant to the venue and

type of entertainment proposed. It is designed to ensure that there is enough

time for site inspections by relevant departments if necessary, for proper

consideration of detailed layout and structural plans, as well as the proposed

programme of entertainment. It is a scheme designed to enable the licensing

authority to lay down conditions concerning matters including crowd control,

fire safety and sanitary facilities to suit the particular place and type of

entertainment in question. It also allows for adequate manpower arrangements

to be made for there to be a suitable Police, Fire Services and first aid

personnel73 presence. If the entertainment is likely to attract a large audience,

the scheme also allows precautionary traffic and other arrangements to be made,

facilitating the orderly arrival and dispersal of the crowds in the vicinity of the

place of public entertainment.

91. The construction urged by the respondent and adopted by the Court

of Appeal has, in my view, too narrow a focus. It concentrates on the point of

access to the site – on whether members of the public need to gain admission to

the place where the entertainment is to take place. In doing so, it gives no

weight to what is central to the legislative scheme, namely, the enabling of

proper safety assessments to be made and precautionary measures to be put in

71 PPEO section 10(1). 72 PPER regulation 171. 73 As envisaged by PPEO section 10(2)(e).

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place in advance. Those are matters which must be addressed well before one

gets to the point of considering how access is gained to the entertainment venue.

The narrow focus does not in truth take the legislation’s purpose into account.

92. Secondly, it appears, with respect, that the Court of Appeal has

misapprehended the way the legislative scheme is designed to function. Cheung

CJHC sought to support the “controlled enclosure” criterion for excluding the

licensing scheme in the following terms:

“This interpretation makes good sense in the light of the context and purpose of the legislation. As mentioned, the undisputed purpose of the legislation and the licensing regime that it sets up is to deal with crowd control and general safety. It therefore makes sense to require an organiser or performer, who has sufficient control over the place of entertainment as to enable him or her to control admission, to satisfy various licensing requirements designed to ensure adequate crowd control and general safety. Contrast that with an organiser or performer who does not have that degree of control over the place of entertainment, so much so that he or she is not even in a position to control admission. In that sort of situation, it would serve little purpose to require such a person to obtain a licence and fulfil licensing requirements which are geared towards crowd control and general safety when, by definition, that person simply does not have control over the place of entertainment, or put another way, the power to control the place of entertainment lies with someone else – in the case of a public street, the Government.”74

His Lordship added:

“One must also consider matters from the point of view of a licensee. After all, the Ordinance and regulations impose licensing requirements. Granted that these requirements are designed for crowd control and general safety, they are only as good as the licensee’s ability to comply with them. They are premised on the licensee’s ability to control the place of entertainment and access to it. These requirements lose their meaning if the organiser or performer does not even have the ability to control admission.”75

93. In my view, there are three flaws in this reasoning. The first is to

adopt “the point of view of a licensee”. To argue from that perspective is to pre-

suppose that a licence has been already been granted. But the purpose of the

scheme is to require the would-be presenter of a public entertainment to apply

74 Court of Appeal §37. 75 Court of Appeal §39.

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for a licence, setting in train the assessment process described above. If the

location is unsuitable or if, upon his application being circulated, a responsible

department objects for a legitimate reason, the purpose of the Ordinance is

served by refusal of a licence. Even if a licence is not refused, the legislative

purpose is served by enabling a proper risk assessment to be conducted and

permitting suitable conditions to be imposed in advance of the performance.

94. The second flaw involves the unwarranted assumption that a

licensee who has power to control admission will have the ability to comply

with any licensing conditions imposed and that the converse is true of a licensee

who does not have such power. The fact that an organizer is able to man the

entrance to the venue, charging admission or collecting tickets tells one nothing

about that person’s ability or resources to ensure compliance with safety

requirements within. Conversely, the organizer of a free event to which

members of the general public are given unrestricted access may be perfectly

well-equipped and well-prepared to comply with whatever licensing conditions

might have been imposed, such as conditions regarding the number of marshals

to provide, the availability of fire safety equipment, the layout and structural

soundness of a stage, and so forth, matters which do not depend on whether

admission to the site is regulated.

95. The third flaw is to assume that the efficacy of the PPEO depends

entirely on the ability of the licensee personally to comply with conditions

imposed. But the legislative scheme also enables precautionary safety measures

to be put in place by the Police, Fire Services, first aid personnel and other

agencies concerned with public safety when they receive prior warning and are

able to plan for the event.

96. Mr Pun sought to argue that confining the PPEO’s operation to

public entertainments on private property was justifiable because the Police need

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powers to enter such premises whereas there is no such need in relation to public

entertainments in public places where sufficient powers can be exercised under

other applicable Ordinances such as the POO. I do not accept that argument.

For the reasons set out in Section H of this judgment, the POO and the other

Ordinances there considered provide no substitute for the PPEO’s precautionary

safety regime. I do not accept that there is no need for such safety precautions

in public places.

97. Since the unambiguous object and purpose of the PPEO is to

promote public safety by means of a detailed precautionary licensing scheme, in

so far as a difference has emerged between the English and Chinese texts in the

definitions of “public entertainment” and “place of public entertainment” which

the rules of statutory interpretation ordinarily applicable do not resolve, the

meaning which in my opinion best reconciles the texts, having regard to the

aforesaid object and purpose is the construction based on the English text. It is

the construction demanded by section 10B of the Interpretation and General

Clauses Ordinance since it avoids placing restrictions (based on unjustifiable

criteria of controlled admission, physical enclosure and private property) on the

scope of the duty to obtain a licence and so avoids disabling government

authorities from effectively carrying out their duty of anticipating and

preventing potential danger to the public in connection with the staging of public

entertainments.

G.5 The history of the legislation 98. There is, in my view, little need to go into the history of the

legislation, but as it has been referred to in both Courts below and in the parties’

submissions, I should touch on it briefly.

(a) The PPEO has its origins in the Places of Public Entertainment

Regulations Ordinance 1919, in which, as with the current

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Ordinance, “Entertainment” was defined by reference to a list of

activities while “Public entertainment” was given the definition

which has remained unchanged to this day. 76 There was no

definition of “place of public entertainment”.

(b) In 1951, the Ordinance was amended and a definition of “place of

public entertainment” was introduced which included any place on

which a structure or building stood “or other place” as falling

within that concept.77 It therefore operated on the basis that any

place might serve as a place of public entertainment. According to

the objects and reasons published in the Gazette, this had “the

effect of widening considerably the places and forms of

entertainment subject to the control imposed by the Ordinance”.78

(c) In 1970, the definition was narrowed, the Attorney General

indicating in Legislative Council that it was considered unnecessary

that the definition of “place of public entertainment” should

“include a place on which there is no structure capable of

accommodating the public, for example, a field which is set aside

for a gymkhana”. 79 This resulted in a “place of public

entertainment” being defined as: “(a) any place on which there is any building, erection or structure, whether temporary or permanent, capable of accommodating the public; and (b) any vessel, in or on which a public entertainment is presented or carried on whether on one occasion or more.”

76 “‘Public Entertainment’ means any entertainment, as above defined, to which the general public are

admitted with or without payment for admission.” 77 “‘Place of public entertainment’ means any place on which there is any erection or structure, any premises

or building whether temporary or permanent or any water-borne craft or other place in or at which a public entertainment takes place whether on one occasion or more...” (Italics supplied)

78 Judgment §9. 79 Judgment §11.

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(d) There was then a reversion to the previous policy when the

definition was further amended in 1980. No longer did a “place of

public entertainment” have to involve a building, erection or

structure in which the public were accommodated. The definition

which continues to apply today relevantly reads: “‘place of public entertainment’ means – (a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public ...”80

99. Cheung CJHC correctly records that the speeches in Legislative

Council debating the 1980 amendment show that it was desired to cater for the

emergence of small cinemas occupying part of larger premises such as a

shopping mall. 81 His Lordship did not, however, address the fact that the

definition had reverted to the wider definition applying to “any place”

previously applicable.

100. It suffices to say that there is nothing in the legislative history to

support the argument that a place of public entertainment has to meet the

criterion of controlled admission, much less to consist of a controlled enclosure.

Even the narrowing of the definition in 1970 (reversed in 1980) does not help

the respondent’s case. It has never been his argument that a place of public

entertainment must be a “place on which there is any building, erection or

structure, whether temporary or permanent, capable of accommodating the

public”. The respondent accepts (the Court of Appeal held correctly82) that a

place of public entertainment can consist of an “open space area”, subject to his

proviso that it meets the criterion of controlled admission.

G.6 Certain particular arguments

80 Judgment §14. 81 Court of Appeal §25. 82 Court of Appeal §26.

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101. I turn next to some particular arguments advanced in favour of the

“controlled enclosure” or “controlled admission” construction. Such arguments,

must be viewed recognizing that the PPEO and PPER cater for many different

types of entertainment, including those which are free and those where

admission is charged, taking place in all sorts of venues.

102. Included amongst the situations covered by the PPEO are (as I have

accepted) entertainments to which the general public is admitted held in private

buildings or enclosed spaces where the organizer controls entry, both to the

entertainment and to the venue. But, as I have been at pains to emphasise, the

PPEO does not confine itself to such situations. It follows that where arguments

are advanced relying on judicial decisions or statutory provisions which are only

concerned with controlled admission to venues, it should be recognized that

such arguments do not address or invalidate the construction regarding areas of

unrestricted access.

G.6a Scott v Cawsey 103. This applies to the Court of Appeal’s reliance on the High Court of

Australia’s decision in Scott v Cawsey.83 The first thing to note about that case is

that it was concerned with liability under section 1 of the Sunday Observance

Act, 178084 which arose if “any house, room, or other place” was “opened or

used for public entertainment or amusement, or for publicly debating on any

subject whatsoever” on a Sunday, “and to which persons [were] admitted by the

payment of money, or by tickets sold for money”, such a place being deemed “a

disorderly house or place”. 85 As Griffith CJ explained: “...what is made

83 (1907) 5 CLR 132. 84 An Imperial statute applicable to the State of Victoria: per Higgins J at 166. 85 At 137.

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unlawful is opening or using for the specified purposes a house, room, or place

to which persons are admitted on payment.”86

104. It follows that Sunday Observance cases, involving persons who

charge for admission to entertainments, generally involve controlled admission

to places which are cordoned off or enclosed. They do not address or concern

free public entertainments at sites with unrestricted access.

105. Scott v Cawsey was such a case. The twist which gave rise to an

appeal all the way to the High Court was that payment was required for

admission to only part of the venue. The point in issue was whether the Sunday

Observance Act applied where part of a large hall was cordoned off with

admission being charged for entry into the cordoned off area (referred to as “the

reserve”) where comfortable seating was provided, while entry to the hall itself

was free. 87

106. The owner of the hall successfully argued that since admission to

the hall was free, the Act had not been infringed. It was the hall which

constituted the “house, room, or other place” to which persons were admitted

gratis and not “for the payment of money or by tickets sold for money”. The

cordoned off “reserve” was not regarded as the relevant “house, room or other

place”. Griffith CJ regarded the fee charged as “a charge for special comfort

afforded to persons present at an entertainment to which admission is free”.88

107. It was in that context, referring to the large hall, that Griffith CJ

said:

86 At 138. 87 At 138-139. 88 At 142.

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“The term ‘admission,’ however, involves the idea of locality, and of the ability of the person who permits the admission to exclude others from the place of entertainment or amusement except with his consent.”89

108. Since it was a case where the entertainment was presented in a

building into which the owner admitted members of the public, it is not

surprising that his power of admission was held to carry with it a power to

exclude others. It provides no basis for the Court of Appeal’s gloss on the

PPEO.

109. The long title of the 1780 Act states that it is “An Act for

preventing certain Abuses and Profanations on the Lord’s Day called Sunday”.

Its aim was to encourage adherence to the Christian Sabbath as a day of rest and

religious observance. As appears from reading section 1 as a whole,90 its focus

was not on any precautionary measures, but on the fact that the place was

“opened or used” on a Sunday, penalising, after the event,91 the deemed keeper

of the disorderly house and persons who managed or conducted the

entertainment or acted as master of ceremonies, or as moderator, etc, of any

public debate. That its focus was on admission for payment is clear from the

section’s penalising “every doorkeeper, servant or other person who shall collect

or receive money or tickets from persons assembling at such house, room, or

89 At 138. 90 “From and after the passing of this present Act any house, room or other place which shall be opened or

used for publick entertainment or amusement, or for publickly debating on any subject whatsoever, upon any part of the Lord’s Day, called Sunday, and to which persons shall be admitted by payment of money or by tickets sold for money, shall be deemed a disorderly house or place; and the keeper of such house, room or place shall forfeit the sum of two hundred pounds for every day that such house, room or place shall be opened or used as aforesaid on the Lord’s Day, to such person as will sue for the same, and be otherwise punishable as the law directs in cases of disorderly houses; and the person managing or conducting such entertainment or amusement on the Lord’s Day, or acting as master of the ceremonies there, or as moderator, president or chairman of any such meeting for publick debate on the Lord’s Day, shall likewise for every such offence forfeit the sum of one hundred pounds to such person as will sue for the same; and every doorkeeper, servant or other person who shall collect or receive money or tickets from persons assembling at such house, room, or place on the Lord’s Day, or who shall deliver out tickets for admitting persons to such house, room or place on the Lord’s Day, shall also forfeit the sum of fifty pounds to such person as will sue for the same.”

91 By a common informer’s action.

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place on the Lord’s Day”. The purposes of the 1780 Act are self-evidently far

removed from those of the PPEO.

G.6b Provisions said to be consistent only with controlled enclosures 110. It was argued that certain provisions in the PPEO and PPER make

sense only in relation to controlled enclosures. Thus, having observed that

licensing requirements designed for crowd control and general safety “are only

as good as the licensee’s ability to comply with them”, Cheung CJHC continued:

“They are premised on the licensee’s ability to control the place of entertainment and access to it. These requirements lose their meaning if the organiser or performer does not even have the ability to control admission. Thus, for instance, a licensing requirement stipulating the maximum number of the audience at an entertainment, which is no doubt an important requirement in terms of crowd control and general safety, simply cannot work if the organiser or performer has no ability to control admission.”92

111. I am unable to accept that argument. In the first place, there is no

universal “licensing requirement stipulating the maximum number of the

audience”. The provision referred to is section 10(2)(f) which, with the other

paragraphs of section 10(2) lists the sorts of conditions which the licensing

authority may specify.93 If it serves no purpose in a given case to impose a

condition setting a maximum number for those to be admitted, one would expect

such a condition not to feature in the licence.

112. However, it may, in given circumstances, be sensible for such a

condition to be imposed in relation to a venue with unrestricted access. Section

10(1) gives the licensing authority a discretion as to the precise terms and

conditions imposed. It may make sense, for instance, to grant the licence on

condition that the performance cannot begin or must cease if the attendance by 92 Court of Appeal §39. 93 Section 10 relevantly provides: (1) A licence for the purposes of this Ordinance shall be in such terms as the

licensing authority by which it is granted determines and ... such licence shall be subject to such conditions (if any) as are specified in the licence.” (2) Without affecting the generality of subsection (1), terms or conditions referred to in that subsection may – (f) specify the maximum number of persons which may be admitted as regards entertainments taking place in the place to which the licence relates ...”

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those admitted to the entertainment exceeds the stated maximum save with the

consent of the responsible police officer present. Such a condition does not

depend on controlled admission.

113. Another example mentioned by the Court of Appeal is regulation

170B which states:

“Where a licence is granted or renewed under these regulations, then for so long as the licence remains in force, the licensee shall exhibit and keep exhibited at all times the licence in a conspicuous position at the entrance or, if there is more than one entrance, the main entrance of the premises to which the licence relates.”

114. I quite agree with Cheung CJHC’s comment that:

“This regulation is simply not capable of compliance where the place of entertainment in a public street is not, in one way or another, enclosed or cordoned off, and there is therefore no ‘entrance’ to talk of.”94

115. What follows from this? The regulations are enforced by making

non-compliance an offence by the licensee. 95 But where the regulation is

obviously inapplicable on the facts, no one could sensibly suggest that the

licensee has failed to comply and has thereby committed an offence. It does not

justify the criterion of controlled admission.

G.6c Buskers 116. A variant of the foregoing arguments involves the proposition that

the licensing regime cannot have been intended to operate in relation to

entertainments on public streets with unrestricted access since it would

otherwise catch people like buskers, who (it is argued) are obviously not

intended to be targeted by the licensing scheme.

94 Court of Appeal §40. 95 PPER regulation 171.

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117. R v Bow Street Magistrates’ Court ex p McDonald,96 was cited by

the Court of Appeal97 in support. That was a case involving a busker who was

accustomed to play his guitar using amplifying equipment on roughly the same

spot in Leicester Square, without any licence. Purporting to act under a warrant

issued by a magistrate pursuant to the London Government Act 1963 (“the 1963

Act”), the police seized his equipment. Mr McDonald brought judicial review

proceedings, challenging the magistrate’s decision to issue the warrant,

contending that he did not need a licence to busk. The Court of Appeal reversed

Dyson J98 and agreed that no licence was needed. To understand the basis of the

Court of Appeal’s decision, it is necessary to examine the relevant provisions of

the 1963 Act.

118. Schedule 12 paragraph 1 of the 1963 Act laid down the licensing

requirement, stating:

“... no premises in a London Borough ... shall be used for any of the following purposes, that is to say, public dancing or music and any other public entertainment of the like kind, except under and in accordance with the terms of a licence granted under this paragraph by [the council of the borough ... ].”

Under paragraph 1(7), “premises” was defined to include “any place”.

119. Where premises were caught by Schedule 12 paragraph 1, it was an

offence under paragraph 10(1) if:

“(a) any person concerned in the organisation or management of that entertainment; and (b) any other person who, knowing or having reasonable cause to suspect that such an entertainment would be so provided at those premises (i) allowed the premises to be used for the provision of that entertainment; or (ii) let the premises, or otherwise made the premises available, to any person by whom an offence in connection with the entertainment has been committed ...”

96 (1996) 95 LGR 359. 97 Court of Appeal §§41-42. 98 Ex p McDonald (unreported, Lexis Transcript CO/2683/93, 14 December 1994).

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It may be noted that such “premises” are envisaged to be under the control of a

person in a position to allow them, or to let them, for use in breach of the

licensing requirement.

120. The power to forfeit Mr McDonald’s musical equipment was

conferred by paragraph 12B(1) and conditioned on a person being convicted of

an offence under paragraph 10(1) or (2), the forfeiture power also being linked

to the powers of search and seizure which were subject to challenge by judicial

review. The paragraphs conferring those search and seizure powers are

important. Paragraph 12(2) provided:

“A police constable ... may, if authorised in that behalf by a warrant granted by a justice of the peace, enter any premises in respect of which he has reason to suspect that an offence under this Schedule is being committed.”

And paragraph 12C stated:

“A constable ... who enters any premises under the authority of a warrant granted under sub-paragraph (2) of paragraph 12 of this Schedule may seize and remove any apparatus or equipment ... found on the premises which he has reasonable cause to believe may be liable to be forfeited under paragraph 12B of this Schedule.”

121. I have emphasised the contents of paragraph 10(1) and italicised the

words involving “entry into premises” in paragraphs 12(2) and 12C because

they show that the premises intended to be regulated under the 1963 Act were

premises controlled by others which could only be entered by a constable

pursuant to a statutory power authorising the issue of a warrant. It is not

surprising that Leicester Square was held not to constitute such “premises” even

though “premises” was defined to include “any place”. Schiemann LJ 99

explained this as follows:

“Schedule 12 is concerned with the control of premises to which the public is invited for the purposes of public dancing or music and any other public entertainment of the like kind. It does not forbid all music-making in public places. ... They envisage a

99 With whom Sir Ralph Gibson and Nourse LJ agreed.

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situation in which someone other than the council has the power to regulate the activities of the public in that place and where it is in the public interest that the council assume some power of entry and supervision which otherwise it would not have. The Schedule is not designed to deal with situations where what is going on is going on in a street to which every music-maker or other member of the public has access. ... The wholly artificial way in which the council tried to use the powers in paragraph 12(2) to secure a warrant to obtain a right of entry to Leicester Square (a place in their ownership, and to enter which they had no need of any warrant) makes the point.”100

122. As I have endeavoured to show, there is no similar wording in the

PPEO or the PPER capable of supporting the view that the licensing

requirements with which we are concerned are intended only apply to premises

under private control and not to public squares or streets. The position of

buskers in Hong Kong therefore cannot be approached along the lines of ex p

McDonald. What then of the criticism that it would be absurd to apply the

PPEO and PPER to buskers in Hong Kong?

123. This case is not about buskers and it is not necessary to decide

whether the PPEO applies to them. However, I will say that I am inclined to

accept that it would be unnecessary and incongruous to apply the full panoply of

powers and duties that apply to entertainments calling for crowd control, and so

forth, to buskers playing on a pedestrian flyover or under-pass. Typically, a

busker does not gather a stationary audience of any size but merely hopes that

well-wishing passers-by will pause long enough to drop some money into his or

her hat or instrument case before going on their way. This is not the kind of

entertainment that calls for a multi-departmental pre-event risk assessment, the

submission of venue plans or the tailoring of licence conditions such as those

envisaged by PPEO section 10 to the busker’s activity. Given this view, is there

100 At 365. An additional reason given by his Lordship was that many persons might busk at an attractive spot

in Leicester Square every day and the Act did not envisage several persons being licensed during one day to operate in one place.

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any scope for a purposive construction of the PPEO definitions which would

exclude buskers from the ambit of the Ordinance?

124. There is a reasonable argument that this cannot be done because of

the clear language of the definitions. A busker is clearly engaged in providing

“entertainment” consisting of “musical entertainment”.101 It may be said to be

“public entertainment” on the basis that it is entertainment “to which the general

public is admitted with or without payment”, being accessible to all passers-by.

He may furthermore be said to be playing in a “place of public entertainment”

consisting of the pavement or passage way which is “capable of accommodating

the public” who hear the music while walking by.

125. But an important additional factor has to be taken into account in

this analysis. Buskers and other street musicians are already subject to a much

simpler licensing requirement under the Summary Offences Ordinance

(“SOO”).102 Section 4(15) provides:

“Any person who without lawful authority or excuse ... plays any musical instrument in any public street or road save under and in accordance with the conditions of any such general or special permit as the Commissioner of Police in his absolute discretion may issue ... shall be liable to a fine of $500 or to imprisonment for 3 months.”

126. I would accept that some regulation of buskers and street musicians

is necessary to prevent public nuisance or undue obstruction in the frequently

over-crowded streets of Hong Kong. However, the permit envisaged by the

SOO seems far more appropriate than a fully-fledged PPEO licence. The permit

issued by the Commissioner does not involve multi-departmental precautionary

assessments but can still be tailored to the place and circumstances in which the

busker is to perform. Given the existence of a duty far more suited for dealing

with buskers, if the position of buskers had to be definitively decided, the

101 Schedule 1 paragraph 1(a). 102 Cap 228.

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question would arise as to whether, having subjected buskers to that duty, the

legislature ought properly be taken to have intended that buskers should

additionally be subject to a licensing requirement under the PPEO. A strong

argument plainly exists to support a negative answer. It may very well be

appropriate in such a case to imply words into the PPEO provisions to exempt

from their operation, persons who already hold a permit issued under section

4(15) of the SOO.

127. As Sir Anthony Mason NPJ pointed out in HKSAR v Lam Kwong

Wai,103 the modern approach is to adopt a purposive construction of statutes

while accepting :

“... that the principles of common law interpretation do not allow a court to attribute to a statutory provision a meaning which the language, understood in the light of its context and the statutory purpose, is incapable of bearing (R v A (No 2) [2002] 1 AC 45 at pp 67G-68H, per Lord Steyn).”

However, as his Lordship went on to state:

“A court may, of course, imply words into the statute, so long as the court in doing so, is giving effect to the legislative intention as ascertained on a proper application of the interpretative process. What a court cannot do is to read words into a statute in order to bring about a result which does not accord with the legislative intention properly ascertained.”

128. I think it compellingly arguable that the legislative intention

properly ascertained unambiguously favours a construction whereby the

licensing obligations of buskers are confined to their obtaining a permit under

the SOO. Accordingly, it may well be proper to imply words to that effect into

the PPEO so that section 4 should be read with the italicised words implied:

“No person shall keep or use any place of public entertainment without a licence granted under this Ordinance or under section 4(15) of the Summary Offences Ordinance.”

103 (2006) 9 HKCFAR 574 at §63.

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129. The same question of principle can arise whenever there is an

overlap between the licensing requirements of the PPEO and some other

Ordinance in relation to activity which constitutes “public entertainment”: Is it

the legislative intent that both licences have to be obtained and if not, which is

intended to be the appropriate licence? Without in any way indicating a view as

to a possible outcome, it may be noted that section 4C of the SOO imposes an

obligation to obtain a permit from the Commissioner of Police on persons who

organize or participate in “a lion dance, dragon dance or unicorn dance, or any

attendant martial arts display, in a public place” unless exempted.

G.6d Small scale public entertainments

130. There may of course be instances of small-scale entertainments

staged in public places with unrestricted access which do not involve pre-

existing duties such as those mentioned above and which may attract the

licensing requirements of the PPEO. One can have some sympathy for those

who complain about “kill-joy” red tape interfering with enjoyable public

entertainments, but complaints of that nature cannot nullify the essential

statutory purpose of safeguarding public safety and good order in connection

with public entertainments.

131. In any event, the PPEO is not bereft of means to exclude or

minimise the burdens of the licensing regime in appropriate cases. Thus, section

3A confers on the Secretary for Home Affairs power by Order published in the

Gazette to exempt from the operation of PPEO section 4, places of public

entertainment which are of a specified class or description from all or some of

the provisions of the Ordinance or PPER. The Secretary has gazetted an Order

exempting a number of places, including places “under the management of the

Leisure and Cultural Services Department or the Home Affairs Department”

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from the licensing requirement.104 Such an exemption might be applied, for

instance, to places regularly resorted to by the public where informal, small

scale entertainments may be carried on, since such places are managed, one

assumes, with proper safety measures put in place by the said Departments.

132. The PPEO also provides the licensing authority with discretions to

adjust the level of regulation properly called for. For instance, it may in suitable

cases, accept much shorter periods of notice than the 42 days and 28 days

normally called for under regulations 162(1) and 162(3) respectively. A simple

entertainment posing little risk to public safety can be rapidly approved with the

licensing authority declaring itself satisfied by the materials submitted. The

licence can cover regular events to be held over a stated period. The licensing

authority has power to waive or reduce fees105 and, where conditions imposed

are found to be inappropriate, power to vary or cancel them.106

133. But at the end of the day, a degree of inconvenience may have to be

accepted to further the public safety purposes of the PPEO. As Lord Bingham

of Cornhill pointed out:

“The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.”107

134. Given the almost infinite forms and venues for public

entertainments imaginable, it is not surprising that the PPEO’s drafting might in

some circumstances be thought wanting. Adopting one construction, it may

appear to have an over-broad application, imposing the inconvenience of having

to apply for a licence where many might agree that it is unnecessary to operate

104 Places of Public Entertainment (Exemption) Order, Cap 172, para 2. 105 PPER regulation 178. 106 PPEO section 10(3). 107 R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 at

§33; cited in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §71.

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the precautionary scheme. But adopting another construction, the PPEO may be

given too narrow a scope, leaving public safety at risk in situations which clearly

call for precautionary planning. The burdens of a licensing scheme are felt more

in the nature of bureaucratic inconvenience than in the imposition of criminal

liability. For my part, I consider it better to adopt a construction which errs on

the side of ensuring public safety.

135. For the foregoing reasons, I respectfully disagree with the Court of

Appeal’s construction. In my view, places to which the general public have

unrestricted access, including public streets and spaces, are capable of qualifying

as places of public entertainment within the meaning of the PPEO and PPER.

There is, in my judgment, no basis for construing the relevant definitions in

section 2 as confining such places to those which are subject to control over

admission.

H. The constitutional issue 136. On the basis that the PPEO applies to the IDAHO event, the

respondent argues that sections 2 and 4 are unconstitutional because they are

inconsistent with Articles 27 108 and 39 109 of the Basic Law and/or Articles

16(2)110 and 17111 of the Hong Kong Bill of Rights. The contention is that the

licensing regime of the PPEO infringes the constitutionally guaranteed freedoms

of expression and assembly, as demonstrated by the interference with the

IDAHO dance performance. 108 Article 27: “Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of

association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

109 Giving constitutional effect to the International Covenant on Civil and Political Rights as implemented by the Hong Kong Bill of Rights Ordinance (Cap 383).

110 Article 16(2): “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”

111 Article 17: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

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137. Those freedoms are of course of great importance, but they are not

absolute and laws which impinge on them are valid if they pass the

proportionality test which has often been applied in this jurisdiction.112 In the

present case, the licensing requirement clearly has a legitimate aim being a

precautionary scheme for the effective protection of public safety and good

order in places of public entertainment.113 Plainly, the licensing regime which

has been described is rationally connected with achieving that end. Neither of

these points is in dispute.

138. The constitutional objection advanced on the respondent’s behalf is

that the safety of the public attending entertainment events in a public street is

sufficiently catered for by powers conferred on the Police by such Ordinances as

the POO, the Police Force Ordinance 114 (“PFO”) and the SOO so that it is

disproportionate to impose additional fetters on the relevant freedoms in the

form of the PPEO’s licensing requirements.

139. I have accepted the argument as a matter of construction that

buskers may well be sufficiently regulated by being placed under a SOO duty to

obtain a permit, but cannot accept the respondent’s argument in reliance on the

POO or PFO. While the regulatory schemes of the POO and PPEO overlap to a

limited degree, the POO has a different purpose, deals with different subject-

matter and operates in a different fashion. It provides no substitute for the well-

developed precautionary licensing regime established by the PPEO.

140. The POO is, as its title suggests, concerned with public order. It

only involves the Commissioner of Police and does not cater for any multi-

departmental pre-event risk assessment in relation to public entertainments. Its

112 Discussed in the context of the freedom of assembly in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229

at §§33-38. 113 Falling within the permitted restrictions under BOR Article 17. 114 Cap 232.

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main purpose is to regulate public meetings and public processions and not

public entertainments. Such “meetings” are defined to exclude gatherings

organized exclusively for recreational or cultural purposes 115 so that many

entertainments are likely to fall outside the ambit of public meetings and so will

not be regulated by the POO. Similarly, since most public entertainments will

not involve a “public procession”116 the POO provisions on processions will

rarely be applicable. While organizers have to notify the Commissioner of

Police of intended public meetings117 and public processions,118 they have to

give no more than a week’s prior notice. The information which must be

provided is limited to the organizer’s personal details, the purpose and subject-

matter of the meeting, its date, location, time of commencement, duration and an

estimate of the number of people expected to attend.119 Similar information,

plus the intended route, must be given in relation to an intended public

procession.120 Such requirements do not compare with the detailed information

as to the entertainment and venue that must be provided by the applicant for a

licence under regulations 162-164 of the PPER.121

141. Mr Pun was keen to point to the POO’s regulation of “public

gatherings” which are not confined to public meetings and public processions,

but include other meetings, gatherings or assemblies of 10 or more persons in

any public place.122 However, the treatment that such public gatherings receive

under the POO is very limited. Under section 17, police officers are given

powers to prevent, stop, disperse, etc, such public gatherings but only if they

reasonably believe that they are likely to lead to a breach of the peace. Section 6

115 POO section 2. 116 Defined as “any procession in, to or from a public place”: section 2. 117 POO sections 7 and 8. 118 POO sections 13 and 13A. 119 POO section 8(4). 120 POO section 13A(4). 121 Set out in Section G.4 above. 122 POO section 2.

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gives the Commissioner power to control and direct the conduct of public

gatherings if he reasonably considers it to be necessary in the interests of

national security or public safety, public order or the protection of the rights and

freedoms of others, but this is a reactive power, there being no obligation on the

organizers or participants in public gatherings to give prior notice of their

occurrence.

142. Mr Pun also relied on section 10 of the PFO, but that section

merely lays down a long list of the general duties of the police force. Such

duties include taking lawful measures with a view to preserving the public peace,

preventing and detecting crimes and offences; preventing injury to life and

property, and so on. They are certainly no substitute for the PPEO’s

precautionary scheme.

143. Such constraints on the freedoms of expression and assembly as

flow from operation of the PPEO generally do not involve prohibiting the event.

The Ordinance therefore usually involves minimal interference with the

freedoms in question. In the rare case where the location is so unsuitable or the

entertainment so dangerous that the risk cannot be acceptably mitigated by

imposing suitable conditions, refusal of a licence is a proportionate constraint. It

is unthinkable that we should fail to learn the tragic lessons of the Lan Kwai

Fong disaster of 1 January 1993.123 But even in cases involving such dangers,

the organizers may be able to find a safe alternative venue or suitably to modify

the entertainment so as to obtain a licence subject to tailor-made conditions. In

my view, the requirements imposed by the PPEO are no more than necessary to

123 Where 21 persons died and many were injured from the crush of severe overcrowding in New Year’s Eve

celebrations in a network of narrow, sloping streets in an entertainment area. See the Final Report of the Inquiry by Mr Justice Bokhary dated 23 February 1993. As pointed out in the affidavit of Ms Tse Wing Yee Winnie dated 6 March 2012 (§§28 and 33), some of the PPEO’s 1995 amendments, including the addition of the present section 10 conferring power to impose conditions, were made to give effect to recommendations made by that Inquiry.

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secure public safety and good order in places of public entertainment. It is a

legitimate, rational and proportionate measure which is compatible with the

constitutional guarantees.

144. In the present case, the organizers of the IDAHO event were

advised by the Police to apply for a PPEO licence. The Police were right to do

so. The proposal involved putting up a stage and various smaller structures

publicising the IDAHO event and a dance performance on a Sunday afternoon in

a crowded pedestrian precinct. The organizers initially did submit a PPEO

application but then chose to withdraw it while it was being considered by the

licensing authority and interested departments. It may be that the organizers

were wrongly advised since they did so on the footing that there would be no

“entertainment” involved, a position which is now no longer maintained. The

Police had already served a Notice of No Objection under the POO and had

indicated, in response to the PPEO application that they had no objection

provided specified conditions were met. There is every reason to think that if

the organizers had persisted in their application, a licence would have been

granted in good time before the IDAHO event and there would have been no

interference with the dance performance. Only the organizers knew what they

had planned by way of public entertainment and it was not too burdensome to

require them to provide relevant advance information to the licensing authority

in furtherance of public safety.

145. For the foregoing reasons, I would allow the appeal, set aside the

Court of Appeal’s orders and restore the order of Lam J dismissing the

application for judicial review.

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Mr Justice Tang PJ:

146. I have had the advantage of reading the judgments of Fok PJ and

Lord Neuberger of Abbotsbury in draft, I respectfully agree, for the reasons

given by them, that the appeal should be dismissed. Since, I disagree with the

Chief Justice and Ribeiro PJ, I will add a few words of my own.

147. These proceedings concern the construction of s 4 of the Places of

Public Entertainment Ordinance (“PPEO”), under which no person shall keep or

use any place of public entertainment without a licence under PPEO.

148. The Court is divided over the true construction of the definitions of

“public entertainment” and “place of public entertainment” in PPEO.

149. The definition of entertainment is wide and includes “any event,

activity or other thing specified in Schedule 1”. Dancing is specified in

Schedule 1, and I shall proceed on the basis, but do not decide, that the dancing

in this case, said to be an Artistic and Dancing Expression to promote a message

against discrimination, was entertainment within the meaning of PPEO.

150. Public entertainment as defined “means any entertainment within

the meaning of this Ordinance to which the general public is admitted with or

without payment”.

151. Place of public entertainment means “so much of any place,

building, erection or structure, whether temporary or permanent, capable of

accommodating the public; and any vessel, in or on which a public

entertainment is presented or carried on whether on one occasion or more.”

152. What is “public entertainment” is important because it is the

presenting or the carrying on of public entertainment in or at a place which

makes it a place of public entertainment. A place in or at which non-public

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(private) entertainment is presented or carried on does not require a licence

under PPEO.

153. What distinguishes private entertainment from public entertainment

is the admission of the general public. When entertainment to which the general

public is admitted is presented or carried on in or at a place, a licence for the

place (not for the entertainment), under PPEO is required, and it is an offence to

keep or use that place without a licence. What, then, is the place, the keeping or

using of which without a licence is an offence? The definition of “place of

public entertainment” provides the answer, namely, a place which is “capable of

accommodating the public”, and the public being those who have been admitted

to the entertainment, being presented or carried on there.

154. The essence of Mr Mok’s submission is that the general public is

admitted to an entertainment if they are exposed to it, for example, they could

hear or see the entertainment. He accepts that if he is right, a busker would

require a PPEO licence. According to Mr Mok, a busker, an exhibitor of

sculptures or pictures by performing or exhibiting in public, admits the general

public to the entertainment. 124

155. With respect, I agree with Fok PJ , for the reason given by him, that:

“262 … the word ‘admitted’ is to be construed in an active sense and as requiring that, for a place to be a place of public entertainment, the person presenting or carrying on the (public) entertainment must be able to control admission to the place where the entertainment is being presented or carried on.”

124In HKSAR v Li Yiu-kee (ESS 43427/2010, unreported), in the run-up to 4 June 2010, 2 sculptures, the

Goddess of Democracy and a statue commemorating 4 June 1989 were placed at the Times Square. They were seized by the police and the person responsible prosecuted under PPEO, because the exhibition of sculptures came within the definition of entertainment and there was no licence under PPEO. The person was convicted and fined $2000. The hearing of his appeal has been held over to await our decision. We are not here concerned with that appeal and I express no view on the correctness or otherwise of that decision, but it illustrates the implication of Mr Mok’s submission.

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156. In my opinion, in context, that is the ordinary and natural meaning

of “admitted”.

157. It follows that I also respectfully agree with the Chief Judge, who

said, with the concurrence of Stock VP and Barma JA :

“35 … the very idea of the general public being admitted to an entertainment, or the place of entertainment, involves the ability on the part of the organiser or performer of the entertainment to control admission by admitting or excluding people, whether on terms (such as the sale of tickets) or unconditionally.”

158. If “admitted” is given its ordinary and natural meaning, the PPEO

would cover all obvious places for control under the PPEO, for example,

entertainment in private premises such as cinemas and dance halls, and other

premises, such as football stadiums, where admission of the general public is

controlled. Mr Mok’s complaint is that, giving “admitted” its ordinary and

natural meaning would not cover the present case, or, for example, annual

count-downs where large crowds may gather, although the same safety concerns

are involved. That is why we should construe “admitted” purposively to cover

these other situations. Mr Mok submits that the fact that buskers will also be

covered should not concern us. Buskers are already covered by s 4(15) of the

Summary Offences Ordinance (“SOO”). I suspect, s 4(15) is more honoured in

the breach than in the observance and that, sensibly, the police does not

prosecute every busker. More to the point, I seriously doubt whether the

legislature would ever have knowingly brought buskers within the ambit of the

PPEO. Ribeiro PJ regards the inclusion of buskers under the PPEO

“incongruous”.125 His lordship said it may be appropriate to imply words into

the PPEO provisions to exempt buskers, who already hold a permit issued under

s 4(15) from the SOO.126 Like Lord Neuberger127, I do not believe that is an

125 Para 123. 126 Para 126.

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acceptable solution. Buskers would be included if Mr Mok is right. I regard the

inclusion of buskers under Mr Mok’s construction, another reason why it must

be rejected.

159. The PPEO does not apply to private entertainment, although the

same safety concern may be present. The legislature have chosen to cover only

public entertainment. They drew the line at the admission of the general public

with or without payment and not at the possible safety concern of an

entertainment. The definition uses simple words, and has been in place since

1919. I do not believe the word “admitted” has ever been understood otherwise

than in its ordinary and natural sense. As Fok PJ’s historical survey of the

PPEO shows, for many years, (1908 to 1951 and 1970 to 1980) places of public

entertainment were confined to a structure of some sort128 and the ordinary and

natural meaning of “admitted” was entirely adequate for the purpose of the

PPEO. The legislature had no reason to wish for any wider meaning. However,

between 1951 and 1970, and since 1980, a place of public entertainment was not

confined to a structure. But, the definition of public entertainment was not

amended. I cannot accept that the legislature would have left the definition

unamended if they had intended any change to the ordinary and natural meaning

of “admitted”.

160. Mr Mok also asks us to distinguish between admission to the

entertainment and admission to the place of entertainment. If “admitted” has the

meaning ascribed to it by Mr Mok, I doubt if the distinction adds anything. If

“admitted” has the meaning I prefer, the distinction would not help him.

161. Does the distinction mean that if the general public is admitted to

the entertainment it does not matter that it was not admitted to the place of

127 Para 298. 128 Para 229.

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public entertainment? Suppose, an operator of a commercial drive-in cinema

(who has a PPEO licence for his cinema), shows a silent film, and the movie

was watched by the general public from outside the drive-in cinema. On the

appellant’s case, the general public had been admitted to the entertainment.

Would the fact that the operator has a licence for the drive-in cinema suffice? If

so, is that because, the place at which the non-paying public saw the movie was

not a place of public entertainment and no licence was required for that area? If

that is right, why should it matter the general public had watched the movie

from outside? If not, is it because, the place where the public saw the movie

was itself a place of public entertainment and a PPEO licence was required for

that area. If that is right, since the access to the entertainment by the public

rendered the place at which they accessed the entertainment, a place of public

entertainment, what is the relevance of the distinction?

162. I also believe Mr Mok has exaggerated the public safety concern in

this case. Here, although there was no PPEO licence, the requirements for a

public meeting or procession under the Public Order Ordinance (“POO”) were

met. The Commissioner of Police did not object to the meeting or procession on

public safety grounds. The facts of the present case provide a useful illustration

of the dangerous implication of Mr Mok’s submission.

163. The evidence of Robit Bhagat, Assistant Divisional Commander

(Administration) Wanchai Police Division, showed that, after WSIP Chan

noticed a number of performers dancing on the stage and in the area before the

stage, she warned the person in charge that since there was no PPEO licence

they were liable to prosecution. As a result, the dancing stopped, and the event

continued with speeches. There is no reason to think that the level of danger to

public safety was greater because of the dancing. Moreover, WSIP Chan went

on to say she did not realize that there were story-telling in the speeches. My

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impression is that, had she realized that, she would have given another warning

because entertainment as defined includes story-telling, and a licence would be

required.

164. I agree with Fok PJ that since constitutionally protected freedom of

expression may be involved, clear words are required to effect any such

restriction. I would not give the word “admitted” a “purposive” construction

which may impact these important rights.

165. Mr Mok provided other examples where public safety may be a

serious concern. He mentioned the Lan Kwai Fong disaster. But, there was a

PPEO licence on the occasion. Mr Mok also mentioned annual count-downs.

Two well known places for such events are the Times Square and under the

Clock Tower in Tsimshatsui. Count-downs per se do not come under the

definition of entertainment. Nor are they likely to be organized. So who could

be required to apply for a licence? Nor is it likely that the authorities would take

no measure for public safety because no PPEO licence was or could be applied

for. It is common sense that the police and other relevant government

departments would do all they can to ensure public safety, on such and similar

events.

166. I turn to the Chinese version of PPEO. The English and Chinese

texts are equally authentic, and presumed to have the same meaning.129 Mr

Pun for the respondent, relies on the words “讓公眾入場” in the Chinese

definition of public entertainment, in particular, the word “讓”. Mr Mok, in his

oral submission, accepted that “讓” meant “to permit”. I am of the opinion that

in the Chinese text, public entertainment is defined as entertainment to which

the general public is permitted to be admitted, with or without payment.

129 s 10B(1) and (2) Interpretation and General Clauses Ordinance Cap 1.

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Moreover use of the expression “入場”, especially the word “場”, supports the

view that it was concerned with the admission to the place of entertainment and

not merely to the entertainment.

167. I see no difference in meaning between the Chinese and English

texts.

168. For the above reasons, which, I believe, are consistent with the

judgments of Fok PJ and Lord Neuberger, I would dismiss the appeal. That

being the case, it is unnecessary for me to express any view on the constitutional

question.

Mr Justice Fok PJ :

A. Introduction

169. Under the Places of Public Entertainment Ordinance (Cap.172) (the

PPEO), a person who keeps or uses a place of public entertainment must obtain

a licence to do so. The question of principle raised in this appeal is whether and

in what circumstances, on the true construction of the PPEO, an entertainment

which is presented or carried on in a public street or other publicly accessible

open space is one for which the organiser is required to obtain a licence. The

Court of Appeal, differing from the Judge at first instance, held that the

licencing regime did not apply to the use of a pedestrian precinct in Lockhart

Road for a dance performance. The Commissioner of Police (the Commissioner)

appeals, contending that it did.

170. If the Commissioner is correct, then a subsidiary question arises as

to whether the provisions of the PPEO requiring the obtaining of a licence are

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inconsistent with the constitutionally protected freedom of public demonstration

and assembly and freedom of expression.130

B. The facts

171. Save for one matter referred to below, there was no dispute as to

the facts.

172. Various lesbian, gay, bisexual, transgender and intersex (LGBTI)

and human rights organisations (the Organisers) proposed to host a 7th annual

International Day Against Homophobia (IDAHO). The purpose of the 7th

IDAHO was to raise public awareness of anti-discrimination, equal

opportunities and anti-homophobia issues and to provide a platform for the

LGBTI community to express their views and to discuss and share their

experience of these matters. The 7th IDAHO was scheduled to be held on

Sunday, 15 May 2011, between 3pm and 5pm on Lockhart Road between East

Point Road and Cannon Street in Causeway Bay. That part of Lockhart Road is

designated as a pedestrian street from 4pm to midnight on Mondays to Fridays

and from noon to midnight on Saturdays, Sundays and public holidays and so

was therefore a pedestrian precinct at the relevant time.

173. Prior to the scheduled day for the 7th IDAHO, on 15 March 2011

and again on 15 April 2011, the Organisers submitted a Notification of Intention

to Hold a Public Meeting to the Commissioner of Police. The notification was

given pursuant to section 8 of the Public Order Ordinance (Cap.245) (the POO)

and the application identified the pedestrian precinct as the place of the meeting,

estimated that about 250 persons were expected to attend and stated that there

would be a stage performance. The Organisers also provided a map to the

police on which the position of a “stage” and an “assembly space” were 130 Under articles 27 and 39 of the Basic Law, articles 16(2) and 17 of the Hong Kong Bill of Rights and articles 19 and 21 of the International Covenant on Civil and Political Rights

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respectively marked at one end of and along the pedestrian precinct. In due

course, on 11 May 2011, the Commissioner issued a Notice of No Objection

pursuant to section 9(4) of the POO indicating he had no objection to the 7th

IDAHO being held in the pedestrian precinct, subject to certain conditions.

174. In parallel with this, the Organisers submitted, on 15 March 2011,

an application to the Food and Environmental Hygiene Department for a

Temporary Places of Public Entertainment Licence under the PPEO to use the

pedestrian precinct for the 7th IDAHO. The application stated that a temporary

stage would be erected and gave its dimensions as not over 13 feet x 8 feet x 13

feet. However, this application was subsequently withdrawn by the Organisers

on 12 May 2011 who took the view the licence was not necessary. Whether that

view is correct is, of course, the principal issue in this appeal.

175. The 7th IDAHO took place on 15 May 2011 as planned. A

rehearsal of a dance performance to be given at the event took place from about

2pm. A police sergeant asked one of the Organisers to produce the temporary

licence under the PPEO for inspection and, when told that the application for

this had been withdrawn, informed her that the activity was in contravention of

the law.

176. An individual, identified by the initial T, who is the respondent to

this appeal, attended the event in the pedestrian precinct at about 3pm. At that

time, there were about 100 participants attending the event, which began with

speeches given by representatives of the Organisers and others. The dance

performance began shortly thereafter at about 3.35pm. For reasons that will

become apparent, it is not necessary to describe the content of this performance

in any detail. It took place on and in the area immediately in front of the stage.

At the time, the 7th IDAHO event had drawn about 150 to 200 participants,

including T, and during the dance performance a small crowd of passers-by also

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watched, some stopping to do so and others merely slowing down as they

walked along the pedestrian precinct.

177. Shortly after the performance began, a police inspector informed

the Organisers that they required a licence under the PPEO and warned them

that, as they did not have a licence, they were committing a criminal offence and

might be liable to a fine and imprisonment. As a result, at about 3.46pm, the

Organisers stopped the performance. It was originally to have run for about 20

minutes but was cut short by 10 minutes. After the performance was brought to

an end, the 7th IDAHO event continued with readings and speeches until about

4.30pm.

C. The litigation below

178. The respondent began judicial review proceedings 131 challenging

the Commissioner’s decision to halt the dance performance. There was,

however, a dispute between the parties as to whether the dance performance was

halted by the police or by the Organisers themselves in light of the police’s view

that a licence under the PPEO was required. As a result, the original relief

sought was amended to seek a declaration (the first declaration) that:

“a place of public entertainment, for the purposes of the PPEO, does not include an open space area (not being enclosed) where a political demonstration occurs”.

179. In the alternative, the respondent sought a declaration that the

provisions of the PPEO, if they applied to the dance performance, were

unconstitutional, being inconsistent with the provisions of articles 27 and 39 of

the Basic Law, articles 16(2) and 17 of the Hong Kong Bill of Rights and

articles 19 and 21 of the International Covenant on Civil and Political Rights.

131 In HCAL 102/2011

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180. At first instance, before Lam J (as he then was), the respondent was

unsuccessful.132 The Judge held that the licencing regime in the PPEO did apply.

He held that the dance performance was an “entertainment”, that it was also a

“public entertainment” and that the pedestrian precinct was a “place of public

entertainment”, as each of those terms is defined in the PPEO. The Judge also

held that the provisions of the PPEO were not unconstitutional in that, although

they restricted the various freedoms relied upon, they satisfied the

proportionality test.

181. On appeal, the Court of Appeal133 allowed the appeal, differing

from the Judge as to the applicability of the licencing regime. The Court of

Appeal held134 that, although not entitled to the first declaration, the respondent

was entitled to a declaration in the following terms, namely that:

“the use of the pedestrian precinct on Lockhart Road on 15 May 2011 for the purposes of presenting or carrying on the Artistic and Dancing Expression at the 7th International Day Against Homophobia Demonstration did not require the grant of a licence for places of public entertainment under the Places of Public Entertainment Ordinance (Cap.172)”.

182. Having so held, the respondent’s entitlement to the alternative

declaration based on the constitutional challenge did not arise for decision and

the Court of Appeal did not deal with, and expressed no views on, this issue.

D. The relevant provisions of the PPEO

183. Before identifying the issues for decision in this appeal, it is helpful

first to set out the relevant provisions of the PPEO.

184. Section 4(1) of the PPEO provides that:

“No person shall keep or use any place of public entertainment without a licence granted under this Ordinance.”

132 CFI Judgment dated 16 July 2012 133 Cheung CJHC, Stock VP and Barma JA 134 CACV 244/2012, Reasons for Judgment, 18 September 2003; reported in [2013] 4 HKLRD 384

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Contravention of this provision is a criminal offence under section 4(2).135

185. Section 2 of the PPEO includes definitions of the terms

“entertainment”, “public entertainment” and “place of public entertainment”,

each of which is relevant in the context of this appeal.

186. The definition of “entertainment” in section 2 is wide and includes

“any event, activity or other thing specified in Schedule 1”. Schedule 1 provides:

“1. The events, activities and other things referred to in the definition of ‘entertainment’ in section 2 of this Ordinance are the following or any part of any of them –

(a) a concert, opera, ballet, stage performance or other musical, dramatic or theatrical entertainment;

(b) a cinematograph or laser projection display; (c) a circus; (d) a lecture or story-telling; (e) an exhibition of any 1 or more of the following, namely, pictures,

photographs, books, manuscripts or other documents or other things;

(f) a sporting exhibition or contest; (g) a bazaar; (h) (Repealed L.N. 120 of 2002) (i) an amusement ride within the meaning of the Amusement Rides

(Safety) Ordinance (Cap. 449) or any mechanical device (other than such an amusement ride) which is designed for amusement;

(j) a dance party.

2. In this Schedule ‘stage performance’ (舞台表演 ) includes a tragedy, melodrama, comedy, farce, pantomime, revue, burlesque, burletta, shadow play, an exhibition of dancing, conjuring or juggling, an acrobatic performance and any other stage event including an interlude.

3. In this Schedule, ‘dance party’ (跳舞派對) means an event with all of the following attributes–

(a) music or rhythmic sound of any kind or source is provided at the event;

(b) the primary activity at the event is dancing by the persons attending the event;

(c) either–

135 This provides: “Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine at level 4 [i.e. $25,000] and imprisonment for 6 months, and to a further fine of $2,000 for every day during which the offence has continued.”

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(i) the number of persons attending the event exceeds 200 on at least one occasion during the event; or

(ii) any part of the event occurs between 2 a.m. and 6 a.m.”

187. A “public entertainment” is defined as meaning:

“any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment.”

188. Finally, a “place of public entertainment” is defined as meaning:

“(a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b) any vessel,

in or on which a public entertainment is presented or carried on whether on one occasion or more”.

E. The issues in this appeal

189. It is not now in issue that the dance performance staged by the

Organisers was an “entertainment” within the meaning of the PPEO. At first

instance, the Judge rejected the argument advanced on behalf of T that the

performance was not an “entertainment” as defined because it was not for the

sole or dominant purpose of entertainment but rather was for the purposes of a

political demonstration.136 That argument was “not seriously pursued” in the

appeal and the Court of Appeal had no doubt the performance was an

“entertainment”.137 In this Court, the respondent expressly does not dispute that

the performance was an entertainment under the PPEO being “an exhibition of

dancing”.138

190. The Organisers of the 7th IDAHO were plainly using the pedestrian

precinct in Lockhart Road, where the temporary stage was erected and

immediately in front of the stage, for the purposes of presenting or carrying on

136 CFI Judgment §§46, 70-77 137 CA Judgment §15 138 Case for the Respondent §10

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the dance performance. The question in issue is therefore whether the

Organisers were keeping or using a place of public entertainment within the

meaning of the PPEO, that being the activity for which a licence is required

under section 4. That question in turn depends on whether the dance

performance was a “public entertainment” and whether the place where it was

“presented or carried on” was a “place of public entertainment”. The proper

construction of the terms “public entertainment” and “place of public

entertainment” in the PPEO (the construction issue) is therefore the primary

focus of this appeal.

191. If the construction issue is decided against the respondent, the

constitutional issue will need to be addressed.

F. The Construction Issue

192. The ultimate question raised in this appeal is whether the PPEO

licensing regime applied to the use of the pedestrian precinct in Lockhart Road

between East Point Road and Cannon Street for the dance performance put on

during the 7th IDAHO. But this involves the broader question of construction of

whether and in what circumstances the PPEO applies to an entertainment

presented or carried on in a public street or other publicly accessible open space.

193. While accepting that the purpose of the PPEO was to provide a

means of effectively ensuring public safety and order and to protect the

participants from the hazards associated with the gathering of crowds at places

of public entertainment, the Court of Appeal held that the reference to “admitted

with or without payment” in the definition of “public entertainment” implied or

suggested that the organiser or performer has, or is entitled to exercise, a certain

degree of control as a matter of law, or exerts or purports to exert a certain

degree of control as a matter of fact, over the place in which the public

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entertainment is presented or carried on, so as to enable him to admit, or exclude,

members of the public from the entertainment. 139 The Court of Appeal

concluded that:

“In reality, where a public street is involved, unless the place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.”140

The correctness of that conclusion is central to this appeal.

F.1 The approach to construction

194. The modern approach to statutory construction is not in issue. The

proper starting point is to look at the relevant words or provisions having regard

to their context and purpose: see HKSAR v Lam Kwong Wai (2006) 9 HKCFAR

574 at §63 and Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR

735 at §12. The context of a statutory provision should be taken in its widest

sense and includes the other provisions of the statute and the existing state of the

law: HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at §13. The purpose

of a statutory provision may be gleaned from the provision itself or from a

relevant report of the Law Reform Commission or the Explanatory

Memorandum to the bill or from a statement of a responsible official to the

Legislative Council in respect of the bill: ibid. at §14.

195. Nevertheless, the object of the exercise is to ascertain the legislative

intent of the language of the statute and, in this regard, a court cannot attribute to

a statutory provision a meaning which the language, understood in the light of

its context and statutory purpose, cannot bear: see HKSAR v Lam Kwong Wai at

§63 and China Field Ltd v Appeal Tribunal (Buildings) (No.2) (2009) 12

HKCFAR 342 at §36.

139 CA Judgment §§28, 34-36 140 CA Judgment §40

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196. There are other canons of statutory interpretation that may also be

relevant. It is a principle of statutory interpretation that a person should not be

penalised except under clear law. Therefore, when considering opposing

constructions of a statutory provision, the court presumes the legislature

intended to observe this principle and should strive to avoid adopting a

construction which penalises a person when the legislator’s intention to do so is

doubtful. 141 Similarly, as part of the principle against doubtful penalisation,

there is a presumption against the imposition of a statutory interference with

freedom of association or of speech without clear words.142

197. Before addressing the construction of the relevant provisions, it is

helpful to put them in context by reference to the licensing scheme under the

PPEO and the material legislative history of that ordinance.

F.2 The licensing scheme under the PPEO

198. The PPEO provides a statutory licensing scheme for places of

public entertainment. The requirements of the application process under the

PPEO and the relevant regulations thereunder establish what can be described as

a multi-disciplinary, pre-event risk assessment process in relation to the keeping

and use of a place of public entertainment. It is an assessment that enables risks

to be identified and precautions to be put in place before a public entertainment

takes place.

199. As noted above, it is a criminal offence to keep or use a place of

public entertainment without a licence granted under the PPEO. Section 10(1)

provides that a licence for the purposes of the PPEO shall be in such terms as the

141 Bennion on Statutory Interpretation (6th Ed.), section 271 (pp.749-750) 142 Bennion on Statutory Interpretation (6th Ed.), sections 276 (pp.761-762) and 277 (pp.762-763)

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licensing authority143 determines. Section 10(2) specifies that the licence may

be subject to terms and conditions which: specify the period of the licence;

specify when the place to which it relates may be used for public entertainment;

require specified measures to be taken by the licensee; require the licensee to

provide first aid personnel; specify the maximum number of persons which may

be admitted to the place to which the licence relates.

200. By section 7(1), the Secretary for Home Affairs may by regulation

provide for various matters including: (a) the kinds of entertainment for which

places of public entertainment may be licensed and the mode of application, and

fees, for licences; (b) the cancellation of any licence; (c) the location of a place

of public entertainment generally or on or in any place, building, erection or

structure and the circumstances, conditions and restrictions in or subject to

which such location may be permitted; (d) the materials of which any place of

public entertainment shall be constructed and regulating the construction of such

place; (e) the exercise of measures against overcrowding and for the control and

prevention of fires and for the maintenance of sanitary conditions in any place of

public entertainment; (f) the maintenance of peace and good order in a place of

public entertainment; and (g) the entry and inspection for the purposes of

securing compliance with the ordinance and regulations of a place of public

entertainment.

201. The Places of Public Entertainment Regulations (Cap.172A) (the

PPER) have been duly made pursuant to section 7 of the PPEO. The PPER

include detailed provisions as to the form of a licence and the manner in which it

is to be applied for. Permanent and semi-permanent structures specially

designed as theatres and cinemas are dealt with in Part I and other places of

143 Under section 3B, the Secretary for Home Affairs has authorised the Director of Food and Environmental Hygiene as the relevant licensing authority to issue or cancel licences and exercise other functions relating to licensing matters.

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public entertainment in Part III. The application form distinguishes between “a

place of public entertainment (cinema/theatre)”, to which regulation 3 (in Part I)

applies, and “a place of public entertainment (other than cinema/theatre)” and a

“temporary place of public entertainment”, to which regulation 162 (in Part III)

applies.

202. Regulation 162 provides that a person who desires to keep or use

any place of public entertainment shall apply in such form as the licensing

authority may specify not less than 42 days before the commencement of the

proposed entertainment. If the licensing authority does not reject the application,

it is required to forward a copy of the application to various persons, namely (a)

the Commissioner of Police; (b) the Director of Fire Services; (c) one of the

Building Authority or Director of Housing or Director of Marine (depending on

the place to which the application relates); and (d) the Director of Electrical and

Mechanical Services (if laser equipment is, or is to be, installed).

203. Regulation 162(3) requires the applicant to supply (unless the

application relates to a vessel) not less than 28 days before the commencement

of the proposed entertainment:

“(a) a plan showing to the satisfaction of the licensing authority the layout of the place to which the application relates including, in particular, each of the following-

(i) each part of the place intended to be used for holding entertainment; (ii) each part of the place intended to be used for seating or otherwise accommodating an audience (if any); (iii) each existing and any proposed exit route from the place; (iv) the position or location in the place of any existing or proposed permanent structure; (v) each part of the place in which it is intended that temporary barriers may be erected or otherwise provided; (vi) the proposed or actual location in the place of all sanitary fitments; (vii) the proposed or actual location in the place of fire service installations and equipment;

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(viii) all or, as may be appropriate, any 1 or 2 of the following means by which ventilation of the place, or any part thereof, is provided, namely, windows, ducts or any mechanical means; (ix) the proposed or actual location in the place of all laser equipment (if any);

… (c) in the case of a temporary structure, diagrams sufficient to illustrate the proposed method of construction and the spacing and scantling of structural members”.

204. Under regulation 162(8) (and subject to the provision of certain

specific certificates and plans required under regulation 162(9)), the licensing

authority, once notified by each of the persons to whom the application has been

forwarded that he has no objection to it, may grant the licence sought.

205. In addition to the pre-event risk assessment process, the PPEO and

PPER provide a means by which the keeping or use of a place of public

entertainment may be monitored to ensure compliance with the PPEO and PPER.

Thus:

(1) Regulation 169 gives the licensing authority and various of the

other persons to whom the application may be forwarded the right

of entry to the place to which the application relates in order to

inspect it for the purposes of the PPEO.

(2) Regulation 170B provides that: “Where a licence is granted or renewed under these regulations, then for so long as the licence remains in force, the licensee shall exhibit and keep exhibited at all times the licence in a conspicuous position at the entrance or, if there is more than one entrance, the main entrance of the premises to which the licence relates.”

(3) Regulation 174(1) provides that: “When it appears to any police officer not under the rank of Chief Inspector or to any other police officer specially authorized in that behalf in writing by the Commissioner of Police that it is necessary so to do for the protection of any person present in a place of public entertainment in an event of emergency, or for the prevention of disorder in the place of public entertainment, it shall be lawful for that officer personally to order

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that the place of public entertainment be temporarily closed or vacated, and upon any such order being given every member of any audience, and every other person (if any) present at the place of public entertainment shall forthwith comply with it in an orderly manner.”

(4) Section 11 of the PPEO enables the licensing authority to apply to a

magistrate for a prohibition order (to prohibit the operation of an

unlawful place of public entertainment) and a closure order (to

close a place of public entertainment where the prohibition order is

not complied with).

F.3 The legislative history of the PPEO

206. As will be seen, the PPEO has a long legislative history. It has

been the subject of numerous amendments, in the nature of incremental

reactions to particular policies and events rather than comprehensive reviews of

the legislative scheme, which have in turn, extended, restricted or modified the

licensing regime.

(a) Theatres Regulation Ordinance 1908

207. The PPEO can be traced back to the Theatres Regulation Ordinance

1908 (Ord. No.18 of 1908) which prohibited the having or keeping of “any

building, matshed or other place of public resort” for the public performance of

stage plays without a licence.

(b) Places of Public Entertainment Ordinance 1919

208. The Theatres Regulation Ordinance 1908 was replaced by the

Places of Public Entertainment Ordinance 1919 (Ord. No.22 of 1919) – i.e. the

PPEO – which was enacted to consolidate and amend the law relating to places

of public entertainment. This prohibited the keeping or use of “any permanent

or temporary building or matshed” (underlining added) for any public

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entertainment without a licence. The 1919 Ordinance defined “Entertainment”

as including:

“any concert, stage play, stage performance, cinematograph display, exhibition of dancing, conjuring or juggling, acrobatic performance, boxing contest, or circus, or any other entertainment of a similar character”;

and “Public Entertainment” as meaning: “any entertainment, as above defined, to which the general public are admitted with or without payment for admission.”

(c) Places of Public Entertainment Regulation (Amendment) Ordinance 1951

209. The PPEO as enacted in 1919 was amended by the Places of Public

Entertainment Regulation (Amendment) Ordinance 1951. This substituted a

new definition of “entertainment” as including:

“any concert, stage play, stage performance or other musical, dramatic or theatrical entertainment or any part thereof, any cinematograph display, lecture, story-telling, circus, exhibition of pictures, photographs or books, exhibition of dancing, conjuring or juggling, acrobatic performance, exhibition of abnormal persons or animals, any sporting exhibition or contest, any bazaar, any merry-go-round, flying wheel, or other mechanical device designed for amusement”.

210. More importantly, the 1951 Ordinance added a new definition of

“place of public entertainment” as meaning:

“any place on which there is any erection or structure, any premises or building whether temporary or permanent or any water-borne craft or other place in or at which a public entertainment takes place whether on one occasion or more”; (underlining added)

and amended the principal legislative prohibition to one of keeping or using

such a place without a licence.

211. As stated in the “Objects and Reasons” (i.e. the explanatory

memorandum) of the relevant bill, the Colonial Secretary informed the

Legislative Council when moving the bill that the proposed replacement

definition of “entertainment” and the interpretation for “place of public

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entertainment”144 had the effect of “widening considerably the places and forms

of entertainment subject to the control imposed by the Ordinance”.

(d) Places of Public Entertainment (Amendment) Ordinance 1970

212. The PPEO as amended by the 1951 Ordinance was further amended

by the Places of Public Entertainment (Amendment) Ordinance 1970. This was

enacted as a result of various recommendations made in the Report of a

Commission of Inquiry to investigate the collapse of the stand at a tattoo held in

Sek Kong. The 1970 Ordinance substituted the definition of “place of public

entertainment” with a new definition of that term as meaning:

“(a) any place on which there is any building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b) any vessel,

in or on which a public entertainment is presented or carried on whether on one occasion or more”. (underlining added)

213. The Explanatory Memorandum to the relevant bill stated that the

new definition of place of public entertainment “includes an[y] place on which

there is a structure, whether temporary or permanent, capable of accommodating

the public, such as a tent or a grandstand, and any vessel.” In moving the bill,

the Attorney-General explained to the Legislative Council that the definition of

“place of public entertainment” then current (in the 1951 Ordinance) was “wide

enough to include a place on which there is no structure capable of

accommodating the public, for example, a field which is set aside for a

gymkhana” but that this was “unnecessary, since the object of the Ordinance,

and of the regulations which are made under it, is to apply appropriate safety

standards to buildings and structures used by members of the public attending

public entertainments”. The new narrower definition would “in future only

144 i.e. “any … other place in or at which a public entertainment takes place …”

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include places where a building of some kind, capable of accommodating the

public, is erected and also vessels”.

(e) Places of Public Entertainment (Amendment) Ordinance 1980

214. The PPEO as amended by the 1970 Ordinance was further amended

by the Places of Public Entertainment (Amendment) Ordinance 1980. This

amended the definition of “place of public entertainment” to the following

meaning, namely:

“(a) so much of any place, building, erection or structure, whether temporary or permanent, capable of accommodating the public; and

(b) any vessel, in or on which a public entertainment is presented or carried on whether on one occasion or more”. (underlining added)

215. The Explanatory Memorandum to the relevant bill stated that these

amendments were “designed to make it clear that a place of public entertainment

may be located within a building used also for other purposes and to ensure that

the circumstances in which this is done can be regulated and appropriate

restrictions and conditions imposed.” Consistently with this, the Secretary for

the Environment informed the Legislative Council, when moving the bill, that

the existing regulations did not cater for small 500 to 2,000-seat cinemas above

ground level in multi-storey buildings and that the aim of the proposed

amendment was “to dispel any doubts as to the powers of the Governor in

Council to make regulations to provide for the location of places of public

entertainment within buildings which are used also for other purposes and to lay

down appropriate conditions.” He stated that, if the amendment was enacted,

new regulations would be made to “regulate the location of small places of

public entertainment, particularly cinemas, in non-domestic multi-storey

buildings or the non-domestic parts of such buildings”.

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(f) Public Entertainment and Amusement (Miscellaneous Provisions) Ordinance 1995

216. The PPEO as amended by the 1980 Ordinance was further amended

by the Public Entertainment and Amusement (Miscellaneous Provisions)

Ordinance 1995. Relevantly in the context of this appeal, the 1995 Ordinance

amended the definitions of “entertainment” to include “any event, activity or

other thing specified in the Schedule” and “public entertainment” to mean “any

entertainment within the meaning of this Ordinance to which the general public

is admitted with or without payment.” It also added the present section 10

providing for the licence for a public entertainment to be subject to conditions.

217. As regards the amended definitions, the Secretary for Recreation

and Culture explained to the Legislative Council in moving the relevant bill that

the amendment of the definition of “entertainment” was to revise and update the

definition by removing outdated forms of entertainment and including laser

projection display as a new form of entertainment. As regards the introduction

of section 10, the Secretary explained that this was to give effect to relevant

recommendations made in the Final Report of the Hon. Mr Justice Bokhary into

the Lan Kwai Fong Disaster including crowd control measures and provision of

first aid services.

(g) Places of Public Entertainment (Amendment) Ordinance 1997

218. The 1995 Ordinance was amended by the Places of Public

Entertainment (Amendment) Ordinance 1997. This materially added section 11

to the PPEO relating to prohibition and closure orders (see above).

219. Also in 1997, the PPER were amended by the Places of Public

Entertainment (Amendment) Regulation 1997 which added the current

regulation 170B concerning the exhibition of the licence (see above).

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F.4 The context and purpose of the PPEO

220. The context of the relevant provisions of the PPEO includes other

provisions of the PPEO itself, including provisions of the PPER addressed above,

and the existing state of the law, including other ordinances such as the

Summary Offences Ordinance (Cap.228) (the SOO), the Police Force Ordinance

(Cap.232) (the PFO) and the Public Order Ordinance (Cap.245) (the POO)

relevant to the use of and policing of public places.

221. As to statutory purpose, it is plain from the scheme of the PPEO as

well as its legislative history that its essential purpose is the regulation of safety

at places where public entertainments are presented or carried on so that the

safety of those members of the public attending the various forms of

entertainment at those places will be adequately protected. The matters with

which the licensing authority is concerned and which may be the subject of

conditions in any licence granted, such as structural integrity, mechanical

installations, fire precautions, first aid and sanitary fitments, are all clearly

directed towards this purpose. That this is the essential purpose of the PPEO is

not in dispute and was recognised both by Lam J at first instance145 and Cheung

CJHC in the Court of Appeal146.

222. However, it is important to recognise that there are limits to the

extent this statutory purpose can be used to construe the PPEO. These limits

derive in part from the self-evidently limited nature of the licensing regime

imposed by the PPEO. For example, notwithstanding legitimate safety concerns

that might exist in relation to forms of entertainment other than those listed in

Schedule 1, those other forms of entertainment are not subject to the scheme.

Similarly, notwithstanding that large numbers of people may be invited to attend

145 CFI Judgment §§39, 42 and 44 146 CA Judgment §22

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a private entertainment, the PPEO only applies to those places defined as places

of public entertainment. As Lord Millett NPJ observed in China Field Ltd v

Appeal Tribunal (Buildings) (No.2):

“There can be no quarrel with the principle that statutory provisions should be given a purposive interpretation, but there has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that intention must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing”.147

F.5 Is admission to the place of public entertainment required?

223. We are concerned in this appeal with the meaning of the term

“place of public entertainment” because it is the keeping or use of such a place

that triggers the requirement for a PPEO licence. The definition is wide and

includes any “place”. A place can prima facie be an open space if suitably

defined and delineated so that it can be identified.148 The various locations

within the definition, including a suitably defined open space capable of

accommodating the public, are places of public entertainment if they are places

“in or on which a public entertainment is presented or carried on whether on one

occasion or more”. One must therefore have regard to the definition of “public

entertainment” in order to identify whether a place is a “place of public

entertainment”. A “public entertainment” is defined as any entertainment within

the meaning of the PPEO “to which the general public is admitted with or

without payment”.

147 (2009) 12 HKCFAR 342 at §36 148 Powell v The Kempton Park Racecourse Company Limited [1899] AC 143 at 194 per Lord James of Hereford

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224. On behalf of the Commissioner, Mr Johnny Mok SC149 contends

that the concept of admission only applies to the entertainment rather than the

place of entertainment and is therefore only used to distinguish between a public

entertainment, to which the PPEO may apply, and a non-public or private

entertainment, to which the ordinance does not apply. Admission to the place of

entertainment is not, it is contended, required.

225. I accept that the definition of “public entertainment” including the

requirement of admission of the public distinguishes a public entertainment from

a private entertainment. That is the reason why an entertainment within

Schedule 1 of the PPEO which is presented in a private home, even if many

people are in attendance, is not a public entertainment. It is also why, if a

person were to hire a cinema for the exclusive viewing of a film as part of a

private party, the absence of admission of the public would mean the screening

of the film was not a public entertainment, however many invitees there were.

226. However, I do not, with respect, accept the Commissioner’s latter

contention that admission to the place of entertainment is not required.

227. The PPEO is an ordinance to consolidate and amend the law

relating to places of public entertainment and the principal operative provision is

a licence requirement for the keeping or using of a place of public entertainment.

That licence requirement is directed at those persons who present or carry on

public entertainments, albeit not necessarily for financial gain, in respect of their

keeping or using places of public entertainment.

228. The definition of “place of public entertainment” is not to be read

in isolation and necessarily incorporates the definition of “public entertainment”

since that is part of the term itself. A “public entertainment” as defined requires

149 Appearing with Mr Abraham Chan

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that it be one “to which the general public is admitted”. The requirement that

the public be admitted to the place is therefore an integral part of the definition

of a “place of public entertainment”. This can be seen most clearly in relation to

an entertainment presented or carried on in or on a vessel. The vessel cannot be

the place where the public entertainment is so presented or carried on unless the

public are admitted onto it. If it were otherwise, there would be no safety

concerns for the public relating to the vessel as the place of public entertainment

and the legislative scheme for the notification of, among other Government

agencies, the Director of Marine would make no sense. That the public must be

admitted to the place in question is, in any event, also inherent in the necessity

for the “place”, if other than a vessel, to be “capable of accommodating the

public”. The accommodation of the public in this context clearly suggests a

physical accommodation by reference to the characteristics of the location.

229. As can be seen from the summary of the legislative history above,

when the definition of “public entertainment” was introduced in 1919, the only

entertainments to which the public could be admitted were entertainments which

took place within a structure of some sort (“any permanent or temporary

building or matshed”). Admission to the entertainment therefore involved both

a locality and admission to that place where the entertainment as defined was to

take place. Although the places of public entertainment were widened in 1951,

then narrowed in 1970 and again widened in 1980, it was never suggested in any

of the relevant explanatory memoranda or speeches in Hansard moving those

legislative amendments that the admission of the public to the public

entertainment did not involve an admission to a locality.

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230. If admission to the place of public entertainment were not

necessary, the surprising (and therefore, in my view, unintended150) consequence

could occur of places which were entirely remote and unconnected to where the

actual entertainment was presented or carried on being constituted a place of

public entertainment. For example, an entertainment which could be seen or

heard from a distance removed from the principal place where the public

entertainment was being presented or carried on would give rise to subsidiary

places of public entertainment requiring licensing. Spectators of a football

match or musical concert who found vantage points outside the stadium or

auditorium where the game or concert was being played or performed would, on

the Commissioner’s case,151 be said to be admitted to the public entertainment

and the various vantage points, if capable of accommodating the public, could

each then be said to be places of public entertainment for which licences would

be required. Yet these could be places of which the organiser of the public

entertainment in the stadium or auditorium was completely unaware and over

which he would have no influence as regards matters of public safety or order.

231. One of the conditions to which a licence under the PPEO may be

subject is a condition specifying the maximum number of persons which may be

admitted as regards entertainments taking place in the place to which the licence

relates. 152 In addition, the concept of admission to the place of public

entertainment under the PPEO is reinforced by the statutory restrictions on the

150 It is an interpretative presumption that the court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament; the more unreasonable the result, the less likely it is that Parliament intended it: Bennion on Statutory Interpretation (6th Ed.), section 312 (pp. 869-870). 151 In particular, on the Commissioner’s case as to what constitutes being “admitted” to an entertainment (as to which see below). 152 PPEO, section 10(2)(f), which provides that the licence may: “specify the maximum number of persons which may be admitted as regards entertainments taking place in the place to which the licence relates and any such term or condition may specify such a maximum as regards entertainments in general or specify 2 or more such maxima as regards specified entertainments of different classes or descriptions.” (Underlining added)

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unauthorised sale of tickets. 153 Although post-dating the relevant definitions

with which we are concerned, these provisions form part of the context of the

PPEO in which the provisions under consideration are to be construed. The

form of these legislative provisions is incongruous and inconsistent if the

definitions in the PPEO are read as not requiring admission to the place of the

entertainment and one can legitimately ask why the draftsman framed those

provisions in this way if admission to the place of entertainment was not

required.

232. I have had the benefit of reading in draft the judgment of Mr Justice

Tang PJ which addresses the significance of the words “讓…入場” in the Chinese

version of the definition of “public entertainment”. His view on the use of those

words in the Chinese definition of “public entertainment” supports the

conclusion that admission of the public to the place of public entertainment, and

not merely the entertainment, is required. I also note the use of the same word

“場” in the Chinese definition of “place of public entertainment”.

233. I therefore conclude that admission to the place of public

entertainment is required. That then raises the question of what the requirement

of admission entails.

F.6 What does the requirement of admission entail?

234. This is the critical question in this appeal.

235. As noted above, the Court of Appeal concluded that insofar as an

open space may be a place of public entertainment the requirement that the place

be one to which the public is admitted means that the place must be enclosed or

153 PPEO, section 6(1): “No person shall sell, or offer or exhibit or have in his possession for sale, or solicit the purchase of, any ticket or voucher authorizing or purporting to authorize admission to any place of public entertainment licensed under this Ordinance or any place with respect to which duty on payments for admission is payable under the Entertainments Tax Ordinance – …”. (Underlining added)

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cordoned off and the person who is keeping or using the place must have the

right and ability to admit or exclude others from it.

236. The Commissioner strongly challenges this conclusion and

contends that the Court of Appeal’s construction is too narrow as a matter of

language and contrary to the fundamental statutory purpose underlying the

PPEO. The PPEO defines “entertainment” very widely to include the list of

matters specified in Schedule 1 some of which typically take place both indoors

and outdoors and, it is submitted, admission should be construed consistently

with the application of the PPEO to these various forms of entertainment. The

public interest in ensuring appropriate safety measures are in place is equally

strong, if not stronger, the more open and porous to entry a particular place is.

Given the PPEO’s purpose of protecting public safety and order, a purposive

construction supports the conclusion that control is not necessary. All that is

necessary is an area that is defined or delineated.

237. Mr Mok argues that, since admission may be without payment and

the PPEO refers only to entertainment to which the public is “admitted” but does

not specify who enables admission, the legislative concern was with the fact of

public access to or participation in an entertainment and thus public exposure to

risks. The Commissioner refers to the dictionary definition of “admit” which

includes the meanings, in an involuntary sense, of: “Be open to or compatible

with; leave room for”; and “Afford entrance to; have room for”. 154 It is

therefore contended that the word “admitted” is capable of being understood in

this passive sense and that the words “to which the general public is admitted

with or without payment” should be construed purposively as requiring only that

the public entertainment is one to which members of the public are afforded or

allowed access or in which the public can participate. This construction, it is

154 Shorter Oxford English Dictionary (5th Ed.) p.29

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argued, is entirely consistent with the natural and ordinary meaning of the word

“admitted” and will best achieve the PPEO’s fundamental purpose of protecting

public safety and order.

238. Since the underlying purpose of the PPEO is accepted to be the

protection of public safety and order, must the word “admitted” be construed in

the sense the Commissioner contends it should or is it to be construed, as the

Court of Appeal concluded, as requiring the person presenting or carrying on the

entertainment to exercise control over those who are admitted?

239. There is some justification in a number of Mr Mok’s criticisms of

parts of the reasoning of the Court of Appeal for its conclusion on the issue of

control.

240. I would accept that little, if any, assistance is to be derived from

reliance on either Scott v Cawsey155 or R v Bow Street Magistrates’ Court, ex p

McDonald156.

241. In rejecting the Commissioner’s case below, the Court of Appeal

relied 157 on a passage in the judgment of Griffith CJ in Scott v Cawsey, a

decision of the High Court of Australia, where he said (at p.138):

“The term ‘admission,’ however, involves the idea of locality, and of the ability of the person who permits the admission to exclude others from the place of entertainment or amusement except with his consent.”

242. The case concerned a statute prohibiting the use for “public

entertainment or amusement” on a Sunday of “a house, room, or other place” to

which persons were “admitted by the payment of money”. Payment was

required for admission to the railed-off part of a larger room, to which entrance

was free, in which a public entertainment was given. The statutory context and

155 (1907) 5 CLR 132 156 (1996) 95 LGR 359 157 CA Judgment §§32-33

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purpose was therefore very different to that of the PPEO, being aimed at persons

seeking to profit from holding entertainments in premises under their control

rather than public safety and order. Therefore, although suggesting that the

natural and ordinary meaning of “admitted” implies control, the case provides

no direct assistance on a purposive construction of the word “admitted” in the

PPEO.

243. Before Lam J, the first instance decision of Dyson J158 (as he then

was) in R v Bow Street Magistrates’ Court, ex p McDonald was relied on by the

Commissioner to support the submission that the use of a place need not carry

with it the right of control.159 That case concerned the issue of whether the

licensing requirements under the London Government Act 1963 applied to a

busker’s use of Leicester Square to play the guitar. The Act prohibited the use

of any premises, which were defined to include any place, for public

entertainment without a licence. Dyson J rejected the argument that the busker

could only be using Leicester Square for public entertainment if he had control

of the place. The busker therefore required a licence.

244. However, Dyson J’s judgment had been reversed on appeal and,

unfortunately, the English Court of Appeal’s judgment was not cited to Lam

J.160 The English Court of Appeal reversed Dyson J on the basis that the Act

was not designed to be applied to a person playing his guitar in a public place to

which the public had access but over which the local council had innumerable

powers.

158 R v Bow Street Magistrates’ Court, ex p MacDonald, Lexis transcript, CO/2683/93, 14 December 1994 159 CFI Judgment §§56-58 160 The spelling of the busker’s name in the title of the first instance decision (MacDonald) was different to that used in the Court of Appeal decision (McDonald) and neither party was aware of the Court of Appeal decision.

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245. In the Court of Appeal, Cheung CJHC referred to ex p McDonald to

illustrate the proposition that, absent a special arrangement with the Government,

a public street is inherently inapt to be a place of public entertainment.161

246. I do not think either judgment in ex p McDonald sheds light on the

meaning of the word “admitted” in the PPEO. The relevant provision in the

London Government Act 1963 did not require the public to be admitted either to

the public entertainment or the place where the public entertainment was

presented or carried on, as is required in relation to the PPEO. In any event, it

was concerned with the particular factual position of a busker, which normally

speaking would not give rise to the same concerns of public safety or order as a

more substantial public entertainment involving, for example, the construction

and use of a stage.

247. Nor do I think the Court of Appeal’s reliance on the licensing

requirements that might be imposed, in particular the conditions to which a

licence might be subject under section 10 of the PPEO, demonstrates that the

regime “simply cannot work if the organiser or performer has no ability to

control admission”.162 Those conditions are not mandatory and their imposition

will, in any given case, depend on the circumstances of the particular place of

public entertainment.163 That some of those conditions might not be appropriate

for an open space in a public street does not mean the scheme of pre-event risk

assessment cannot be applied to such a place, nor that the need for such a risk

assessment might not exist. Similarly, I do not share the Court of Appeal’s view

161 CA Judgment §41 162 CA Judgment §39 163 Under PPEO section 10(3), the licensing authority may cancel, waive or vary any conditions subject to which a licence has been granted.

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that unless a public street is suitably enclosed or cordoned off, compliance with

regulation 170B of the PPER is impossible.164

248. Notwithstanding those criticisms of the Court of Appeal’s

reasoning, I have nevertheless, for the following reasons, reached the conclusion

that the requirement of admission does require some form of control over the

admission of persons to the public entertainment and the place where it is being

presented or carried on and, as a corollary, a right of exclusion from that place.

249. It is true, as the Commissioner contends, that the purpose of the

PPEO is to promote public safety and order and there is undoubtedly a need to

regulate crowds in public places. The Lan Kwai Fong disaster on New Year’s

Day in 1993 was referred to in the Commissioner’s submissions to demonstrate

this need and the point was made that a PPEO licence had been issued in respect

of an entertainment event which formed part of the activities resulting in the

tragedy. The circumstances in which that licence was granted are not known

and it cannot be assumed that the organiser of that particular entertainment for

which the licence was granted did not have sufficient control over entry, so

reliance on the fact of the licence having been granted cannot assist in resolving

the construction issue in this appeal. In any event, more importantly, as I have

already said, there is a limit to purposive construction in that a court cannot

attribute to a statutory provision a meaning which the language, understood in

the light of its context and statutory purpose, cannot bear. In the case of the

PPEO, the statutory purpose of promoting public safety and order would be an

argument in favour of a licence requirement in respect of all forms of

entertainment that might draw a crowd in any place. Plainly, however, this

would not be justified on the statutory language.

164 CA Judgment §40

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250. In its natural and ordinary meaning, in my opinion, the word

“admitted” suggests an active sense of giving permission to enter or have access

or letting a person in. This is so even if one considers an entertainment rather

than a place as the object of the admission, but it is all the more so if admission

is to a place (as I have concluded above). It is certainly an unusual use of the

word “admitted” to convey a sense of merely having access to or being exposed

to or having an ability to participate in an entertainment. The wording of the

definition would otherwise be adequate and more naturally expressed if it

referred to a public entertainment being one to which the general public “has

access to”, “is exposed to” or “can participate in”. The concept of admission

would normally, in my view, connote something more than that.

251. It was suggested that the additional words “with or without

payment” following the phrase “to which the general public is admitted” support

the argument that control of admission is unnecessary. If payment for admission

to the entertainment were required, a contrary answer would be clear since there

would need to be some control mechanism for this and non-payment would

plainly lead to exclusion. However, the obverse is not the case. Even though

admission may be without payment, this does not point inevitably to the

conclusion that no form of control of admission is required. It remains

necessary to ascertain the legislative intent of the words “to which the general

public is admitted”.

252. Here again, it is relevant to refer to the legislative history. The

phrase “to which the general public are admitted with or without payment for

admission” (emphasis added) was part of the original definition of “public

entertainment” in the PPEO as enacted in 1919. As I have already observed, the

places which then required licensing were all structures into which one would

have to be physically admitted. There is no reason to think that the word

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“admitted” would then have been understood as bearing only a passive sense of

having access. The active sense of the word was clear, in particular given the

qualification that it mattered not whether payment was required “for

admission”. 165 When the definition of “places of public entertainment” was

widened in 1951, then narrowed in 1970 and then widened again in 1980, the

same definition of “public entertainment” including the word “admitted”

remained. There is no reason to think that the word “admitted” varied in its

meaning depending on whether a place of public entertainment was limited to a

structure, in which case it bore an active sense of admission, or was not so

limited, in which case it bore a passive sense of admission. This change would

have been significant and there is nothing in any of the admissible extrinsic

materials to suggest it did change its meaning in this way.

253. In this regard, I again respectfully refer to the views of Mr Justice

Tang PJ as to the significance of the words “讓…入場” in the Chinese version of

the definition of “public entertainment”. His view on the import of those words

strengthens the above conclusion that, based on the English word “admitted”,

the PPEO contemplates that someone must be admitting members of the public

to the entertainment in the active sense of permitting them to enter and, as a

corollary, exercising the ability to exclude others.

254. I have referred above to the surprising consequence of places

unconnected with the presentation or carrying on of an entertainment being

places of public entertainment if admission to the place of the entertainment

were not required. If admission of the public to an entertainment did not imply

165 This qualification remained until the definition of “public entertainment” was amended in 1995 when the types of entertainment covered by the PPEO was expanded to those listed in the Schedule (now Schedule 1). There is nothing to suggest that its removal was intended to change the meaning of “admitted” from an active into a passive sense.

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some control over admission or exclusion, other surprising and, in my view,

unintended results would follow.

255. It would mean that any busker performing in a place to which the

public had access would require a PPEO licence. It is correct that a busker may

be covered by a licence issued by the Commissioner and therefore not liable to

prosecution for a nuisance committed in a public place under section 4(15) of

the SOO166, but there is nothing in the SOO or PPEO that suggests that a licence

under section 4(15) of the former relieves the busker from an obligation to

obtain a licence under the latter. The two ordinances are directed at different

concerns and are not mutually exclusive regimes of control. On the

Commissioner’s construction of “admitted”, a busker playing in a delineated

portion of a public space and attracting a crowd of passers-by would be

performing in a place of public entertainment and so require a licence. I do not

think it is an answer to say that buskers are not within the scheme of the PPEO

because they do not generally attract large crowds and so do not engage public

safety concerns. The applicability of the PPEO licensing regime is not

predicated on a particular number of people being admitted.

256. The nightly laser projection display from a number of buildings in

Central and Kowloon, watched by members of the public from various vantage

points, would give rise to numerous places of public entertainment in open

public areas subject to no control of the organisers of the display.167 Mr Mok

informed the Court that the laser display is organised by the Leisure and

Cultural Services Department (LCSD). Whilst a place that is under the 166 Section 4(15) provides that: “Any person who without lawful authority or excuse – … plays any musical instrument in any public street or road save under and in accordance with the conditions of any such general or special permit as the Commissioner of Police in his absolute discretion may issue; … shall be liable to a fine of $500 or to imprisonment for 3 months.” 167 The display is said to be the “World’s Largest Permanent Light and Sound Show” in which “coloured lights, laser beams and searchlights perform in an unforgettable all-round spectacle synchronised to music and narration that celebrates the energy, spirit and diversity of Hong Kong”: see http://www.discoverhongkong.com/eng/see-do/highlight-attractions/harbour-view/a-symphony-of-lights.jsp

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management of the LCSD is exempt from the operation of section 4 of the

PPEO,168 this exemption would not prevent the consequence that each of the

various public spaces not managed by the LCSD where crowds might gather,

and are encouraged to gather, to watch the display would be places of public

entertainment and thus require a licence. Again, I do not think it is an answer to

say that there is no public safety concern in relation to any of those places since

that is purely a matter of assumption and, in any event, the basis for the

imposition of the licence requirement is the keeping or use of a place of public

entertainment and not the keeping or use of a place about which there are safety

concerns. The pre-event risk assessment is designed to determine if there is a

risk and, if so, what measures might be required to mitigate that risk.

257. A vessel on which an orchestra was playing (but on which no

audience was present) would not itself be a place of public entertainment but

any public spaces on shore or another vessel in no way controlled by the

organisers of the orchestra performance where the music could be heard by

members of the public would be.

258. It is not uncommon to see gatherings of domestic helpers and others

in various public spaces on Sundays when impromptu and informal dancing and

singing performances take place which could attract passers-by to watch. On

the Commissioner’s case, those places would then become places of public

entertainment and the dancers or singers would need a licence under the PPEO

to use them.

259. These examples of surprising consequences of construing

“admitted” as merely meaning having access to or being exposed to or being

able to participate in an entertainment demonstrate, in my view, that there is, at

the very least, a measure of doubt as to whether these situations are truly 168 Places of Public Entertainment (Exemption) Order (Cap.172D), section 2

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intended to be subject to the PPEO licence regime. Who would be responsible

for applying for a PPEO licence in these cases? It would not be a principled

approach to the construction of the PPEO for the answer to this question to

depend on subjective factors such as the intention of the organiser of the

entertainment. How, given the degree of detail required to be provided to the

licensing authority, could the application in these cases be meaningfully made

by the organiser? Why, in the case of buskers or other informal entertainments,

should the application of the licensing regime depend on speculation as to the

number of persons who might attend? It is not satisfactory to say that these

surprising consequences could be avoided by the grant of exemption orders

under section 3A(1) of the PPEO169: those orders would be dependent on the

exercise of administrative discretion; in any event, they would apply to

particular places, not forms of entertainment.

260. In this regard, it is of significance, in my opinion, that the

imposition of a licence requirement on the keeping or use of a place of public

entertainment entails an interference with the constitutionally protected

freedoms of assembly and expression. 170 Since clear words are required to

effect any such restriction, I would prefer to resolve these real doubts as to

meaning in favour of the construction that does not amount to a restriction of the

relevant right.

261. Similarly, since a failure to obtain a licence for the keeping or use

of a place of public entertainment constitutes a criminal offence, the principle

169 This provides that: “The Secretary for Home Affairs may … exempt places of public entertainment which are of a specified class or description from – (a) this Ordinance or particular provisions of this Ordinance specified in the order; (b) regulations under this Ordinance which are so specified or particular provisions of such regulations being provisions which are so specified.” 170 The focus of the PPEO is on the places where public entertainments are presented or carried on and not the public entertainments themselves and there is no question of the legislative scheme being intended to have any influence or control over the content of any entertainment. Nevertheless, the licence requirement itself is a restriction on the rights in question.

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against doubtful penalisation would tend to favour adopting the construction of

two competing constructions which does not give rise to a risk of prosecution.

262. For these reasons, I have come to the conclusion that the word

“admitted” is to be construed in an active sense and as requiring that, for a place

to be a place of public entertainment, the person presenting or carrying on the

public entertainment must be able to control admission to the place where the

entertainment is being presented or carried on. Although this construction is

narrower than that urged on us by the Commissioner, for the reasons I have

given and notwithstanding the statutory purpose of the PPEO, I do not think the

wider construction is justified.

F.7 Unless admission can be controlled, the PPEO cannot apply to a public street or other publicly accessible open space

263. In the course of his oral submissions on behalf of the Respondent,

Mr Hectar Pun171 appeared to suggest that the PPEO could only apply to private

premises and not to any public place and therefore could not apply to a public

street. However, this was inconsistent with the position taken in the

Respondent’s printed case that a PPEO licence could be granted in respect of an

entertainment in a public street.172

264. There is certainly some basis for questioning whether the PPEO

was intended to apply to a public street or any other public place to which the

general public has an unrestricted right of access under the general law. As a

matter of ordinary language, it is odd to speak of the public being admitted to

either and the legislative history of the PPEO does not suggest this particular

issue has been considered by the Legislature.

171 Appearing with Mr Newman Lam and Mr Albert N.B. Wong 172 Case for the Respondent, §5(2)

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265. On the other hand, there is nothing in the PPEO to suggest that it

could not apply to an appropriately defined and delineated place in a publicly

accessible open space in respect of which a person presenting or carrying on a

specified entertainment could control admission. For some open public spaces,

such ability to control admission might be conferred by the terms of a particular

licence arrangement, e.g. in the case of the use of part of a public park. In

practice, this might require the place of the public entertainment to be enclosed

or cordoned-off but, depending on the particular place, control of admission

might be possible without any such enclosure or cordoning-off.173

266. So far as a public street is concerned, the respondent’s concession

that control over admission could be exercised was premised on the grant of a

licence under the PPEO. This reasoning is obviously circular since, on my

construction of the relevant provisions, the ability to control admission is a

necessary pre-condition to the making of an application for a licence. Since the

public has a right of way over a public street, it is difficult to see how control

over admission of members of the public could lawfully be exercised. Absent

some other basis for exercising control over admission by members of the public

to a public street, the PPEO licence regime cannot apply to an entertainment

presented or carried on in a public street.

267. Using a public street to present or carry on an entertainment would,

depending on the scale of the entertainment, very likely constitute an obstruction

or otherwise be unlawful under the SOO or POO. In that case, the organiser or

performer would almost certainly run the risk of being required to stop the

entertainment and of being prosecuted for public nuisance or obstruction.

Although this may be a reactive means of addressing a situation in which public

173 E.g. by reason of the physical characteristics of the public street or by the use of “bouncers” to exclude persons from entry

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safety concerns may arise, I do not regard this as being intrinsically inadequate

and it does not persuade me that the provisions of the PPEO require the word

“admitted” to be construed unnaturally in order that the PPEO scheme can then

be applied to a public street. If it is thought that this conclusion leaves a lacuna

in the law, that is a matter for the Legislature to address by legislation.

F.8 The public was not admitted to the place of public entertainment in this case

268. In the Commissioner’s printed case, it is argued that, in any event,

the public was admitted to the entertainment here in a sufficiently active sense

because the Organisers chose the venue, actively invited the public to attend,

arranged the event in such a way as to limit their exclusionary control and

continued to exercise control by the provision of marshalls.

269. That argument of the Commissioner is premised on the rejected

contention that what is required is only admission to the public entertainment

and not the place of public entertainment. In the present case, Lam J found that

the Organisers did not have the power to exclude other persons from the

pedestrian precinct in Lockhart Road.174

270. It follows that the public was not admitted to the pedestrian precinct

in Lockhart Road where the dance performance presented as part of the 7th

IDAHO event was presented or carried on. The pedestrian precinct was

therefore not a place of public entertainment under the PPEO and the Organisers

did not require a licence for its use.

F.9 PPEO not ousted by the availability of general police control

271. In answer to the Commissioner’s argument for a wider application

of the PPEO to a place over which the organiser of a public entertainment has no

174 CFI Judgment §31

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control, the respondent sought to argue that there was no useful purpose in

applying the licensing regime in the PPEO to a public street given the existing

powers of the police to regulate activities there. The powers relied upon were

those under the SOO175, the PFO176 and the POO177.

272. I do not accept this argument, which may have been advanced in

order to support the contention, relevant were the constitutional issue to have

arisen for decision, that the restrictions constituted by the PPEO were not

necessary. The powers to be exercised by the police under those ordinances all

plainly serve very different purposes to those addressed by the PPEO. None of

the other ordinances address the matters with which the PPEO is concerned, nor

in the same manner or degree of detail. Public safety and order may be affected

by matters governed by the specific concerns of the PPEO licensing regime and

which are different to those matters which give rise to the powers under the

SOO, the PFO and the POO.

273. Nor do I accept the Respondent’s argument that, if a PPEO licence

has been obtained in respect of a public place, the police’s other general powers

over that place are ousted and instead then limited to the powers under PPER

regulations 169 or 174 (see above). In my view, that argument is untenable.

Those other general powers continue to exist even where a PPEO licence is

granted over a defined area of a public place.

G. Disposition

274. The construction issue being decided in favour of the respondent, it

is not necessary to address the constitutional issue and, for the above reasons, I

would dismiss the appeal.

175 Sections 4 and 4A 176 Section 10 177 Sections 9, 11(2) and 17(2)

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Lord Neuberger of Abbotsbury NPJ:

A. Introductory

275. The issue of principle raised by this appeal is whether a licence

under the Places of Public Entertainment Ordinance (Cap 172), the PPEO, is

required for an entertainment which is presented or carried on in an area which

is wholly comprised in a public street.

276. The relevant facts, the legislative history of the PPEO, the relevant

provisions of the PPEO, the Regulations made thereunder, the PPER, and the

history of these proceedings are fully set out by Ribeiro PJ in paras 14-40 and

98-99 of his judgment and by Fok PJ in paras 171-193 and 198-219 in his

judgment, and I gratefully adopt what they say.

277. The issue which is raised by this appeal is difficult to resolve, as is

apparent from the difference of opinion between the Chief Justice and Ribeiro

PJ on the one hand, and Tang and Fok PJJ on the other. The difficulty is in my

view attributable to a number of factors. First, there is the imperfect drafting of

the present version of the PPEO, which I think is partly caused by the draftsman

making of successive substantial piecemeal amendments to legislation, without

then fully considering the resulting legislation as a whole. Secondly, and in

fairness to those responsible for drafting the PPEO, the exercise of deciding how

to define precisely what sort of arrangements should fall within the ambit of the

PPEO is an inherently difficult exercise. Thirdly, I suspect that it simply did not

occur to those responsible for drafting the PPEO that entertainment of the sort

which they had in mind would be provided, or at least exclusively provided, on

land over which a public right of way existed. Fourthly, the wider interpretation,

as favoured by the appellant Commissioner of Police, appears to result in the

PPEO extending to activities which many people would have expected to be

outside its ambit, whereas the respondent’s narrower interpretation seems to

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mean that activities which one might have expected to be within its ambit are

excluded from it.

B. Statutory interpretation

278. Having said that, it is of course necessary to interpret the PPEO in

order to resolve the issue raised on the appeal. The issue is one of statutory

interpretation, and I agree with Ribeiro PJ and Fok PJ that the statutory language

must be interpreted in the light of its context and purpose, as laid down in the

cases to which he refers in paras 48 and 194 of their respective judgments.

However, as Fok PJ says in para 195, that should not be seen as a judicial

licence to ignore or refuse to give effect to the words which the legislature has

chosen to use: when construing an Ordinance, the court is an interpreter not a

legislator. When considering what is sometimes referred to as a purposive

approach, it is salutary to bear in mind what was said by Lord Millett NPJ in

China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HFCFAR 342,

para 36, quoted by Fok PJ at para 222 of his judgment.

279. So far as the facts of the instant case are concerned, it is clear that

what was involved constituted “entertainment”, that it was “presented” in a

“place”, and that the presenters did not (for the reasons given by Fok PJ in paras

268-270 of his judgment) have control over who attended or saw the

entertainment. Accordingly, the issue may, I suppose, be said to turn on the

meaning and effect of a single word, namely “admitted”, in section 2 of the

PPEO. As I have mentioned, the meaning of that word ultimately turns on its

context. As Lord Hoffmann famously said, “No one has ever made an

acontextual statement” - Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004]

UKHL 46, [2005] RPC 9, para 64.

280. In this case, the immediate documentary context of the word

“admitted” is that it is in the definition in section 2 of the PPEO of “public

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entertainment”, namely “any entertainment … to which the general public is

admitted with or without payment”; and that expression is in turn incorporated

in the definition in the same section of “place of public entertainment”, which is

what must be kept or used in order for a licence to be required under section 4 of

the PPEO, the section which the Commissioner contends is engaged in this case.

Sections 2 and 4 must themselves be interpreted by reference to any other

relevant provision of the PPEO.

281. However, that is only the documentary context. One must also take

wider matters into account as part of the context, namely the purpose of the

PPEO, practicalities, common sense, the existing state of the law (including

other Ordinances), any Explanatory Memorandum, and any authoritative

statement to the Legislative Council. A number of cases suggest there are also

certain canons of statutory construction, such as the principle that legislation

which creates a criminal offence or interferes with fundamental rights should be

narrowly construed, but such factors are often of limited value, as they

frequently do no more than discourage a court from giving such legislation a

wider meaning than that which it naturally bears.

282. Bearing in mind the potentially many factors which fall to be taken

into account when interpreting legislation, it is perhaps inevitable that the

interpretation process involves what has been called an iterative process,

checking the rival interpretations against the words themselves, and the

documentary and wider contexts of the sort briefly summarised above.

C. The meaning of the word “admitted” in its documentary context

283. Starting with the centrally relevant words, I consider that, if the

general public has the right to view entertainment because it is being presented

in a street to which any member of the public has a right to be present, then it is

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not a natural use of words to describe the entertainment as being entertainment

“to which the general public is admitted”; and that view is reinforced a little by

the immediately following words “with or without payment”. I accept that the

entertainment in a case such as this is presented to members of the public,

because they can view it as of right given that they are entitled to be where the

entertainment is presented. However, the statutory words carry with them the

notion of members of the public being permitted by someone, with a legal right

to refuse entry, to enjoy the presentation of the entertainment. To refer to a

person being “admitted” to somewhere or something at which he or she already

has an established legal right to be present would involve an unusual use of the

word “admitted”. In particular, to refer to members of the public being admitted

onto a public highway is not a natural use of the word “admitted”.

284. I understand from paras 166-167 of the judgment of Tang PJ that

this view is consistent with, and indeed receives even greater support from, the

Chinese language version of the PPEO. However, although the appeal was

argued purely by reference to the English language version, it is right to bear in

mind that the Chinese version has equal status - see section 10B of the General

Clauses Ordinance (Cap 1), quoted by Ribeiro PJ at para 82 of his judgment.

The fact that the Chinese version post-dates, and was presumably based on, the

English version does not, in my view, prevent section 10B from applying:

otherwise, one would be implying an exception into a statutory provision, a

course which is only to be taken when it can be shown to be necessary in order

for the provision to be workable or to make sense.

285. The application of what I regard as the natural interpretation in the

present case appears to me to be reinforced by the fact that the entertainment

with which we are concerned took place in a public street, where, not only does

the public have a right to be present, but it must be questionable whether the

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presenters had a right to erect a substantial stage or to present an entertainment

which may well have impeded the use of the street for a public pedestrian right

of way - see the discussion in Yeung May Wan v HKSAR (2005) 8 HKCFAR

137, paras 41-44, as to what activities can lawfully be carried on in a public

highway.

286. Nonetheless, I accept that it is not a positive abuse of language to

describe the general public as being “admitted” onto a public highway by the

general law. However, I do not consider such a passive meaning to be a normal

use of the word “admitted”, particularly in the context of the definition of

“public entertainment” in section 2. Indeed, the natural, active, reading of

“admitted” in the context of sections 2 and 4 is that it is the presenter of the

entertainment who is envisaged as being responsible for, or controlling,

admission - a view which gets some support from section 10(f), which entitles

any licence to “specify the maximum number of persons which may be admitted

[to the relevant] place”.

287. I also agree with the point made by Fok PJ at his para 252, namely

that the contention that “admitted” should be given what I regard as its natural

meaning is supported by the fact that the words “for admission” were included

after the words “with or without payment” in the definition of “public

entertainment” from 1919 until they were removed in 1995. The inclusion of the

words “for admission”, as I see it, emphasised that the concept of admission was

being used in its active sense rather than its passive sense. I do not consider that

it would be realistic to attribute to the draftsman in 1995 an intention to change

the whole notion of what was meant by admission. It is a very unlikely notion,

bearing in mind the other amendments made in 1995 and the absence of any

reference to such intention in any contemporaneous document, coupled with the

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fact that the words “for admission” were retained even after the widening of the

definition of “place of public entertainment” in 1980.

D. Admission to public entertainment or to the place of public entertainment

288. As Ribeiro PJ points out in paras 54-57 of his judgment, the

concept of admission in section 2 of the PPEO is tied to the definition of “public

entertainment”, as opposed to “place of public entertainment”. However, I do

not consider that this undermines the force of the linguistic argument which I

have so far been considering, for the reasons given in the next four paragraphs.

Indeed, if the point is significant, it seems to me that, if anything, it tends to

reinforce the view I have expressed, for the reason given in para 289 below.

289. The first reason why it makes no difference that the admission

referred to in section 2 is to public entertainment, at least in a conventional case

such as the present, where there is a live musical, dramatic, or similar staged

performance, is that there is no real practical distinction between admission to

the place of entertainment and admission to the entertainment. In that sense,

admission to entertainment differs from admission to membership of a club or to

the Bar or to residency status, which are the examples given by Ribeiro PJ in his

paras 78-80 (all of which I believe involve the use of the word “admitted” in its

natural sense). One can be admitted to all three of these institutions without

having to be in a physical place, but that is not true where one is concerned with

admission to entertainment. Accordingly, in agreement with Fok PJ, as a matter

of ordinary language, at least to my mind, admission to the entertainment still

naturally conveys the notion of being permitted entry to a place where the

person who is admitted can enjoy the entertainment.

290. Secondly, the definition of “place of public entertainment”

incorporates the definition of “public entertainment”. Accordingly, in agreement

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with Fok PJ at para 228 of his judgment, it appears to me that the requirement

that the general public be admitted is integral to the place where the

entertainment is “presented”, particularly as the PPEO is concerned with

licensing places of public entertainment, not public entertainment. I note in this

connection that the only place in the PPEO where “public entertainment” is

referred to without being immediately preceded by the words “place[s] of”, apart

from the definition of “public entertainment” in section 2 itself, is in section

10(2)(b), which refers to a “place … used for public entertainment” (and

anyway section 10 was only added in 1995). Accordingly, examination of the

terms of the PPEO shows that, as is apparent from its title, its whole thrust is

directed to places of public entertainment rather than to public entertainment.

291. Thirdly, if the appropriate test was whether the public was admitted

to the entertainment rather than the place of entertainment, the problems which

Fok PJ identifies in para 230 of his judgment would arise.

292. Fourthly, quite apart from the point made in para 283 above, it

appears to me that it is in any event unsafe to rely on the fact that the reference

to admission is in the definition of “public entertainment”, rather than “place of

public entertainment”, in the light of the legislative history of the PPEO as

explained by Fok PJ at paras 208-220 of his judgment. The definition of “public

entertainment” has remained effectively unchanged since 1919, and it was only

in 1951 that “place of public entertainment” was defined: until then the

requirement for a licence was limited to entertainments in a “building or

matshed”. Accordingly, it seems tolerably clear that the PPEO initially equated

admission to the place with admission to the entertainment. Of course,

amendments to one statutory provision can have a consequential effect on

another statutory provision, but one must be cautious of imputing to the

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legislature an intention to change the meaning of an existing provision, when it

has not amended its wording.

293. If, however, the distinction between entry to the place and entry to

the entertainment is significant, then, if anything, I think it tends rather to

reinforce the view that, if the entertainment is presented on a public highway, it

is not a natural use of the word to say that the public are thereby “admitted” to it.

If one is talking about admission to the place, the public have a right to be there

as a matter of public law: to that extent, albeit employing a non-natural use of

the word, they can be said to be “admitted” to the place as a matter of public law.

But public law does not give the public the right to see the entertainment: it is

merely because they have the right to be on the street that the public happen to

be able to see the entertainment. That seems to render the notion of “admission”

even less appropriate as a matter of language on the Commissioner’s

construction. It is true that it is the presenter of the entertainment who chooses to

present it to the public in this way, but that point in no way assists the

Commissioner’s argument, because it still does not involve giving a natural

meaning to the word “admitted”.

E. Conclusion on the natural meaning in the documentary context

294. I do not consider that much further assistance can be obtained from

the wording of the PPEO. There is some, but pretty limited, force in the

respondent’s reliance on section 6(1), which forbids the sale of tickets to a place

of public entertainment “in any public thoroughfare”. It suggests, albeit faintly

and by negative implication, that the PPEO was not concerned with

entertainment on such land. There is also a little force in the respondent’s

reliance on section 7(1)(g), which enables regulations to “provide for … entry

and inspection for the purposes of securing compliance with this Ordinance …

of a place of public entertainment”, and section 10(f), which is quoted above.

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Those provisions tend to support the notion that the PPEO was concerned with

places over which the licensee could control entry, but they are not expressed so

as to apply of necessity to every place which is licensed, and section 10 was, as

mentioned above, added relatively recently.

295. It appears to me, therefore, that the natural meaning of the PPEO, at

least if one confines oneself to the provisions of that Ordinance, is that it does

not extend to entertainment such as that presented in the instant case, because

the entertainment was entirely presented on land on which the general public

had every right to be present. Nonetheless, the notion that one could describe the

general public as being “admitted with or without payment” to entertainment

which is “presented” in a location to which the general public has free access as

of right in any event, does not appear to me to be fanciful, as Ribeiro PJ

demonstrates in para 75 of his judgment. However, particularly where the

entertainment is being presented in a public street, I remain of the view that such

a description does not, in my opinion, involve a natural use of language,

particularly in the context of the PPEO.

F. The objection to the natural meaning

296. Casting one’s eyes more widely, the obvious objection to what I

consider to be the natural interpretation in the light of the terms and history of

the PPEO is that it means that the public safety concerns which gave rise to, and

justify, the Ordinance, would not apply to entertainments which are presented on

the public highway, or (probably) on any land to which the public has access as

of right. The importance of those concerns is apparent from the terms of the

PPEO, and it is, I think, such concerns which ultimately, and understandably,

persuade the Chief Justice and Ribeiro PJ to reach the conclusion that the PPEO

should be construed more widely, as the Commissioner contends, so as to apply

to entertainments held in such locations.

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297. There is obvious attraction in that view, but in the end I do not

regard it as sufficiently strong to displace the natural meaning of the definitions

in section 2 of the PPEO. I do not regard the consequences of the narrower

construction advanced by the respondent as especially surprising, particularly in

the light of the following factors, all of which therefore tend to reinforce the

conclusion that what I regard as the natural meaning is the correct meaning.

G. Further reasons for adopting the natural meaning

298. First, just as it may be said that the narrower interpretation results

in the exclusion of certain performances which one might expect to be included,

so would the wider interpretation lead to certain performances which one would

expect to be excluded. Buskers are an obvious example: I agree with Ribeiro PJ

at his para 123 that it would be “incongruous” if they were within the reach of

the PPEO. To counter this problem, it is suggested that, as buskers need a permit

under subsection (15) of section 4 of the Summary Offences Ordinance (Cap

228), the SOO, they would be impliedly excluded from the PPEO. I cannot

agree. First, section 4 of the SOO and the PPEO are concerned with different

things, the one “nuisance in public places” and the other with public safety.

Secondly, as section 4(15) of the SOO refers to “play[ing] a musical instrument

in any public street or road”, it must extend to a pop group or even an orchestra,

and it cannot reasonably be imagined that, if the Commissioner is right, it was

intended to exclude them from the ambit of the PPEO.

299. Secondly, if the PPEO had the wider effect for which the

Commissioner contends, its reach would be rather uncertain, which is plainly

undesirable, particularly for an Ordinance which has potential criminal sanctions.

Thus, if a group of people gather in a public place for relaxation on a Sunday

and decide to dance for fun or to have some informal and impromptu beauty

pageant, for the amusement of anyone who passed, it is hard to see why the

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PPEO would not apply, as the public would, whether the organizers wanted it or

not, be “admitted” on this wider interpretation. One way round that suggested by

the Commissioner was that, if the performers did not intend the public to be

“admitted”, the PPEO would not apply, but that seems to me to be wrong in

principle and a recipe for uncertainty. Similarly, if a laser display on a building

could be seen in many different public places, either side of the harbour, it

would be very hard to identify the “place” of entertainment, if the wider

interpretation was right. In answer, it was suggested that if the “place” was very

large or uncertain, the PPEO would not apply, but, once again, that seems to me

to be both arbitrary and unpredictable.

300. It was also suggested that, if activities such as those mentioned in

the preceding two paragraphs were within the PPEO, then the solution is that

they could (and maybe impliedly should) be exempted under section 3A of the

PPEO. I do not consider that that is a particularly satisfactory answer in

principle or in practice. In principle, although it has some force, I am not

attracted to the notion that a concern that a particular meaning leads to an

Ordinance applying to functions which one would expect to be excluded from its

ambit, can be disposed of by invoking an unfettered administrative power in the

Ordinance to exempt certain functions from its ambit. In any event, in practical

terms, section 3A grants a power to exempt specified locations, not specified

functions, from the PPEO, and therefore I do not consider that it would really

help the Commissioner’s case anyway.

301. Thirdly, the PPEO does not apply to an entertainment, however

many people may be present and whatever safety implications there may be, if

the entertainment is not open to the public. Accordingly, the draftsman of the

PPEO appreciated, indeed must have intended, that its reach would not extend to

an entertainment to which the public was not admitted, even though the number

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of invitees might be very considerable. Thus, it cannot be said that the purpose

of the PPEO was to ensure that all entertainments were to be subject to its

provisions; it must have been realized that many very large gatherings, which

could give rise to safety concerns, would be excluded from its ambit. In my view,

that tends to undermine the notion that a court should strive to give the PPEO a

wide, rather than a narrow, reach.

302. Fourthly, where entertainment is presented at a location to which

the public has access as of right, there are Ordinances which enable the

authorities to exercise a significant degree of control, which would not, at least

normally, be available to them if the entertainment was presented in a private

location, ie one to which the presenter or someone else could control admission.

I have in mind in particular sections 6(1) and 17(2) of the Public Order

Ordinance (Cap 245), the POO, which bestow on the police a degree of control

over “public gatherings” (which are defined in section 2(1)), and section 6(2)

which also gives them a degree of control over many entertainments in public

places. The nature and degree of control under the POO would, I accept,

normally be significantly less effective than that accorded by the PPEO for a

number of reasons, but the appropriate degree and nature of the control over

public activities in different circumstances seems to me to be a matter for the

legislature rather than the judiciary.

303. Fifthly, if one looks at the history of the PPEO more broadly than I

have done so far, it seems to me rather to confirm the narrower reading which I

favour. As already mentioned, until 1951, the Ordinance only applied to

buildings and matsheds, and accordingly it seems clear that the entertainments to

which the general public was envisaged by the draftsman as being into a

building or matshed over which the occupier of the structure or the presenter of

the entertainment could control admission. When the reach of the Ordinance was

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extended in 1951, restricted in 1970 by going more or less back to where it had

been before 1951, and then extended again in 1980, the definition of

“entertainment” remained unchanged. As I have already indicated, it seems

unlikely that, in the absence of any amendment to the definition and in the

absence of any relevant suggestion in any Explanatory Memorandum or in any

statement to the Legislative Council, the draftsman intended that the concept of

“admitted” in the definition of “public entertainment” should change its meaning.

304. Sixthly, as pointed out by Fok PJ in argument, a relatively narrow

meaning is supported by the reference to “vessel” in para (b) of the definition of

“place of entertainment”. If the entertainment consisted of music being played

on a ship in the harbour, and the public, while not permitted to be on the ship,

could enjoy the music from the shore, it seems to me that the ship alone would

be the relevant “place”. In addition, as Fok PJ explains at para 228 of his

judgment, the reference to vessel also supports the notion that the draftsman had

in mind admission to the place of entertainment.

305. Seventhly, it would not in any event be surprising if the draftsman

of the PPEO had taken the view that there was no need to cater for

entertainments which were presented in an area where the public had a right of

way. Particularly before 1999, there must have been considerable doubt whether

a live show, whether drama, music, dance, reading or anything else, could be

presented in a public thoroughfare. The decision of the House of Lords in

Director of Public Prosecutions v Jones [1999] 2 AC 240 is of some

significance in this connection. The English Divisional Court decided in 1997

that a public demonstration on a public highway was a public nuisance because

it was an impermissible use of the highway. In the House of Lords, two of the

five Law Lords agreed, although the majority held that such a use was

permissible provided that it was both reasonable and not inconsistent with the

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ability of the public to pass and repass - see at [1999] 2 AC 257E, 281A-H, and

286H-287A). It is also worth noting that all three Law Lords in the majority

appear to have thought that they were developing the law - see per Lord Irvine

of Lairg LC at 254H, referring to “the law today”, Lord Clyde at 279G, referring

to the fact that “the law may develop and change”, and Lord Hutton at 286H,

who considered that the existing law was thereby being “extended”.

306. It therefore seems quite likely that those responsible for drafting the

PPEO believed that no relevant public entertainment could be lawfully carried

on and presented on land over which the general public had a right of way, as it

would not have been a permissible use of such land, as indeed the Divisional

Court and two Law Lords apparently would have thought. That real possibility

appears to me to reinforce the point that a court should not strain the natural

meaning of the definition in question to extend it to such entertainment,

particularly bearing in mind that the court’s role is to interpret and not to

legislate.

307. Eighthly, there is the fact that the PPEO (i) interferes with the

fundamental right of freedom of expression, and (ii) creates (albeit contingently,

namely if a place of public entertainment is kept or used without a licence) a

criminal offence. In the present context, I do not find these factors of much

weight, except, as I have mentioned, to provide support for the view that we

should not give the words at issue a wide meaning if that is not their natural

meaning, particularly if it leads to uncertainty.

I. Four ancillary points

308. Finally, I should mention that there was some discussion about

whether, if (as I have concluded) the respondent’s case is correct, (i) the PPEO

could never apply to a public highway or other public location, (ii) if it could so

apply, the “place” concerned would have to be cordoned off in order for the

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PPEO to apply, (iii) the PPEO would apply if the presenter cordons off or

otherwise encloses the land even if he had no right to do so, and (iv) a presenter

of entertainment which was not within the ambit of the PPEO could, as the

respondent suggested, voluntarily apply for a licence thereby bringing the

entertainment within the reach of the PPEO. I do not consider that it is necessary

to address any of those points in order to dispose of this appeal, but, as some

time was devoted to them, I will briefly express a view.

309. As to point (i), this case is concerned with a performance on land

over which there is an unrestricted right of way. Unless someone has authority

under an Ordinance to permit presenters of entertainment both to use land

subject to a public right of way for entertainment and to control entry thereto, I

would have thought that the PPEO could never apply to any land subject to a

normal public right of way. Different considerations may apply to land which

can be publicly enjoyed, and different considerations probably would apply but

in respect of such land in a case where a lawful permission has been given to

presenters of entertainment to cordon off or enclose the land for the purpose of

entertainment so that it can properly be said that the public is admitted to the

land in question, and therefore to the entertainment.

310. So far as point (ii) is concerned, in practice it may well be that,

where the entertainment is presented in a publicly accessible space, the PPEO

could not apply unless that space was cordoned off or enclosed in some other

way, because otherwise there would be no means of controlling admission.

However, the public location may be a peninsula connected to the land by a

narrow causeway, or a cul-de-sac with a narrow entrance, in which case no

cordoning off or the like would be required. In the end, it is a question of fact

whether the presenter of the entertainment, or indeed some other person, has

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sufficient control over who comes to view the entertainment for it to be said that

the general public are admitted thereto.

311. Turning to point (iii), I agree with Ribeiro PJ when he says at paras

69-70 of his judgment that, where the land is public highway, an entertainment

would not become a public entertainment if it was cordoned off or otherwise

enclosed by a presenter of entertainment. Although the presenter might in

practice control admission to the land, he would be committing an offence, and,

anyway, the fact that the land was cordoned off would not alter the fact that the

public had the right to be there. Greater difficulties might arise where the land

was subject to more limited public rights, but it is unnecessary and inappropriate

to consider that on this appeal.

312. As to point (iv), the respondent’s contention is unarguable: either

an entertainment is within the ambit of the PPEO or it is not. I agree with

Ribeiro PJ’s comments in para 71 of his judgment.

J. Conclusion

313. For these reasons, and for the reasons given by Fok PJ, I would

dismiss the appeal of the Commissioner of Police. Indeed, were it not for the

fact that I am disagreeing with the Chief Justice and Ribeiro PJ, from whose

opinions I differ with considerable diffidence, I would have limited myself

simply to agreeing with the judgment of Fok PJ. However, as it is, like Tang PJ,

I consider it appropriate to express my reasons in my own words, which may

represent a slight difference of emphasis or approach from that of Fok PJ, but

that should not detract from the fact that I agree with his judgment.

314. If I had been minded to allow the appeal, it would have been

necessary to consider the constitutional issue identified by Ribeiro PJ in para

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136 of his judgment. In that connection, it is right to record that I entirely agree

with his analysis in paras 137-144 of his judgment.

Chief Justice Ma:

315. By a majority, Mr Justice Ribeiro PJ and I dissenting, the appeal is

dismissed. As to costs, we direct that the parties be at liberty to serve on other

party and lodge with the Registrar of the Court within 14 days of the handing

down of this judgment any written submissions, with liberty to serve and lodge

any written submissions in reply within 14 days thereafter.

(Geoffrey Ma) Chief Justice

(R.A.V Ribeiro) Permanent Judge

(Robert Tang) Permanent Judge

(Joseph Fok) Permanent Judge

(Lord Neuberger of Abbotsbury) Non-Permanent Judge

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Mr Johnny Mok SC and Mr Abraham Chan, instructed by the Department of

Justice, for the Appellant Mr Hectar Pun, Mr Newman Lam and Mr Albert N.B. Wong, instructed by

Vidler & Co., assigned by the Director of Legal Aid, for the Respondent