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Following is an urgent question by Hon Dennis Kwok under Rule 24(4) of the Rules of Procedure and a reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (November 20):
Question:
On the 10th of this month, the Court of First Instance (CFI) of the High Court continued the interim injunction orders it granted earlier in respect of three cases concerning the obstruction of certain roads in Mong Kok and the obstruction of the entrance and exit of CITIC Tower in Admiralty. Such injunction orders restrain the occupiers from obstructing the bailiffs in dismantling or removing the obstructions at designated locations and authorise the Police to take arrest actions where they reasonably believe that any person may obstruct or interfere any bailiff in enforcing the terms of the injunction orders, and the Police shall bring the persons so arrested before the Court as soon as practicable for further directions. On the 14th of this month, CFI granted an order which stipulates that without prejudice to the Police's enforcement of the provisions of the Police Force Ordinance (including sections 51 and 52), the Police shall bring the arrested persons before the Court as soon as possible for further directions. On the other hand, the Commissioner of Police indicated that the Police would give their full support to the plaintiffs in enforcing the civil injunction orders concerned. In this connection, will the Government inform this Council, before giving further assistance to the bailiffs in enforcing the injunction orders:
(1) of the channels through which the Police will ensure that the occupiers clearly understand the gist of the injunction orders so that they will have the opportunity to consider desisting from the acts of violating the injunction orders in order to avoid being arrested;
(2) whether the Police will immediately make public the criteria for deciding if the occupiers arrested for allegedly violating the injunction orders and committing other criminal offences at the same time are to be brought before the Court for further directions, or be detained at police stations and/or brought before a magistrate; and
(3) whether the Police will immediately make public the measures to enable the persons who are arrested for alleged violation of the injunction orders and brought before the Court for further directions to get to know their legal rights and be legally represented?
Reply:
President,
The High Court orders issued on November 10 in relation to the three injunction applications concerning the obstruction of certain roads in Mong Kok (Mong Kok) as well as the obstruction of the entrance and exit of CITIC Tower (CITIC Tower) have given clear directions in respect of the role of police officers in the enforcement of the injunction orders. As stated in those orders:
(a) The bailiff do take all reasonable and necessary steps to assist the plaintiff and its agents to effect the clearance and removal of the obstructions.
(b) The bailiff be authorised and directed to request the assistance of the Police where necessary.
(c) Any police officer be authorised to arrest and remove any person who the Police officer reasonably believes or suspects to be obstructing or interfering any bailiff in carrying out his or her duties in enforcing the terms of the injunction order, provided that the person to be arrested has been informed of the gist of the terms of the court order and that his action is likely to constitute a breach of the order and obstruction of the administration of justice, and that he may be arrested if he does not desist.
(d) Without prejudice to the provisions of the Police Force Ordinance (Cap. 232 of the Laws of Hong Kong) (including sections 51 and 52 thereof), any person so arrested by the Police shall be brought before the court, under lawful or legal processes, as soon as practicable for further directions.
As stated in paragraphs 123 and 124 of the relevant High Court judgment, attempts to obstruct bailiffs in their execution of duties may constitute criminal contempt of court, which is a common law offence punishable by imprisonment. In addition, the Department of Justice (DoJ) also pointed out that under section 23 of the Summary Offences Ordinance (Cap. 228 of the Laws of Hong Kong), it is a criminal offence for any person to resist or obstruct a public officer or other person lawfully engaged, authorised or employed in the performance of any public duty or any person lawfully assisting such public officer or person therein. As advised by DoJ, bailiffs are public officers covered by the above Ordinance and as such, a person who resists or obstructs a bailiff lawfully engaged in the enforcement of the relevant injunction orders may also commit an offence under section 23 of the Summary Offences Ordinance. Moreover, we do not rule out the possibility that a person may also commit other offences in the course of resisting or obstructing bailiffs in their lawful enforcement of the injunction orders.
Preparation has been made by the Police with respect to the aforementioned court orders. The Police shall, in accordance with the directions of the court orders, and having regard to the actual circumstances at the time, render assistance in the enforcement of such injunction orders, and, where necessary, exercise the powers conferred upon the Force by other laws, including the power of arrest under the Police Force Ordinance. In rendering their assistance, the Police may take appropriate actions to maintain public order and public safety where there is a real need.
My reply to Hon Dennis Kwok's question is as follows:
(1) It is the responsibility of the plaintiff of an injunction order and his lawful agent to validly serve the injunction order notice issued by the court. I noted that the plaintiff of the CITIC Tower injunction order had, under the court¡¦s direction, published the notice of the injunction order in full in local newspapers on November 15 and 17, and had posted such a notice in a conspicuous position at the car park entrance of CITIC Tower. One of the plaintiffs of the Mong Kok injunction orders had also published the notice in full in newspapers on November 18 under the court's direction.
On the morning of November 18, the bailiffs commenced their enforcement of the injunction order outside CITIC Tower. Prior to the removal of obstructions, the bailiffs, using a loudspeaker, announced that the removal actions would begin in 30 minutes and urged the persons at scene to comply with the court order by leaving immediately. The plaintiff's solicitor had also clearly read out the content of the injunction order on the spot.
Since the court's delivery of its judgment of the injunction order, the Hong Kong Police Force has, through the media, declared to the general public on different occasions that any acts of any person which constitute an obstruction of a bailiff's enforcement of a court order may be liable to the offence of criminal contempt of court, and that the Police have been authorised by the court, where necessary, to arrest those who obstruct the bailiffs in their execution of duties. Resolute enforcement actions shall definitely be taken by the Police against any person who obstructs or violently charges the bailiffs during their execution of duties. The Police also called on those who had unlawfully occupied the roads to comply with the court orders by removing the obstructions and personal belongings and stopping their illegal occupation as soon as possible.
The Police have made preparation at this stage to ensure that the actions to be taken are in line not only with their enforcement guidelines but also legal requirements. Knowing that arrangements may vary from one situation to another, and that operational details are involved, I am in no position to disclose such arrangements in detail. However, I should clearly point out that the Police shall give warnings to the persons involved by appropriate means before they start their arrest actions, so that the concerned persons will clearly know the contents of the court orders and the possible criminal offences resulting from their actions, as well as the possible consequences. The Police shall, before taking further actions, give such persons every reasonable opportunity to stop their unlawful acts.
(2) As stated in the judgment of the injunction orders, anyone arrested by the Police for obstructing or interfering any bailiff in the execution of his duties to enforce the injunction orders shall be brought before the Court as soon as possible for further directions.
As to under what circumstances any person so arrested will be brought before the High Court for directions, and under what circumstances the person will be detained at police stations and/or brought before the magistrates' court for trial, the Police shall make the decision pursuant to the Police Force Ordinance (sections 51 and 52 in particular), the directions of the court orders, the acts of the person concerned and the actual situation.
In case a person commits other crimes at the same time, the Police shall, in the light of the actual circumstances, exercise the power conferred upon the Force by law to maintain public order and public safety. DoJ's advice shall also be sought where necessary.
(3) In case a person is arrested by the Police for having obstructed or interfered with a bailiff's execution of his duties to enforce an injunction order, the Police shall, in accordance with the established procedures, inform him of his lawful rights, which include meeting his legal representative and contacting his relatives/friends. Such procedures are in no way different to those for handling other arrested persons.
Persons detained by the Police for suspected violation of the injunction orders shall have the right to meet their lawyer duly instructed by them or a lawyer instructed by a third party. The Police shall, as far as possible, facilitate the requests of such persons for external communication, such as meeting with their legal representative and contacting their relatives/friends. The Police shall, taking account of the nature of the case and the progress of investigation, deal with such matters in accordance with the established procedures and criteria.
Thank you, President.
Ends/Thursday, November 20, 2014
Issued at HKT 18:47
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