2.

The right to freedom of expression, like all fundamental rights and freedoms,
must be given a generous interpretation. (See Ng Ka Ling & others v Director of
Immigration (1999) 2 HKCFAR 4.) But this right is not absolute and may be
subject to restrictions as prescribed by law in the interest of public order and for the
protection of the rights and freedoms of others. See art 39(2) of the Basic Law and
art 17 of the Bill of Rights. Any law which purports to restrict such right must be
narrowly interpreted and the restriction must satisfy the test of necessity and
proportionality. See Yeung May Wan & others v HKSAR (2005) 8 HKCFAR 137
and Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 (which were cases on the
right of assembly and the right of demonstration). In construing the relevant
statutory provisions which have the effect of restricting such right, the court must
have regard to competing public interests, including the maintenance of public order
and the rights and freedoms of others. The right balance has to be struck between
the preservation of public order and the exercise of the individual’s rights and
freedoms and between the competing rights and freedoms of individuals or groups
of individuals.

3. As described in Mr Justice Tang PJ’s judgment and shown on the videos, the
conduct of the appellants was disgraceful. They showed absolutely no regard or
respect for the rights of others and had abused the right to freedom of
expression. The 1st appellant’s conduct was, to say the least, distasteful and the 2nd
appellant’s conduct constituted a breach of the peace and an assault. Although they
could have been charged with or guilty of some other offences, the question in these
appeals is, however, whether their conduct also incurred criminal liability under
s.17B of the Public Order Ordinance, Cap 245.

4. There is no challenge on the constitutionality of s.17B. It is clear from the

language of this provision that s.17B(2) is aimed at preventing the outbreak of
public disorder and s.17B(1) at protecting the rights and freedoms of others in
transacting their normal business.

5. Both s.17B(1) and s.17B(2) require proof of disorderly conduct: “acts in a

disorderly manner” in s.17B(1) and “behaves … in a disorderly manner” in
s.17B(2). Although the 2nd appellant does not dispute his conduct was disorderly,
the 1st appellant argues that what he did was not. I must say that this term has caused
me some difficulty. I was initially attracted to Mr Justice Tang’s analysis. But
having considered the matter further, I would, with respect, prefer to adopt the
approach taken by Mr Justice Ribeiro.