1. The Appellant was charged with taking part in an unlawful assembly (the “Offence”), contrary to sections 18(1) and (3) of the Public Order Ordinance (Cap.245) (“POO”). It was the Prosecution’s case that, on 2 November 2016, the Appellant, together with other persons, took part in an unlawful assembly outside a conference room of the Legislative Council Complex. 2. The Appellant was convicted after trial and sentenced to 4 weeks’ imprisonment by a Magistrate. His appeal against conviction and sentence to the Court of First Instance was dismissed. 3. Section 18(1) of the POO provides that “when 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner”, they are an unlawful assembly if, in acting so, they: (1)“intend … to cause any person reasonably to fear that [they] will commit a breach of the peace” (the “Intended Limb”); or (2)are “likely to cause any person reasonably to fear that [they] will commit a breach of the peace” (the “Likely Limb”). 4. The issue on appeal was the requisite degree of mental element, if any, the prosecution must prove to convict a person charged under the Likely Limb of the Offence. 5. In Kulemesin v HKSAR (2013) 16 HKCFAR 195, this Court held that, in cases where a statutory offence is silent or ambiguous as to the mental state required for conviction, the presumption of there being a mental element arises. A court is then to ask herself two questions in tandem: first, whether the presumption is displaced; and second, if such presumption is displaced, what is the requisite mental requirement, if any, that needs to be established. In answering these two questions, five alternatives are available. They were considered in this appeal. 6. In this appeal: (1) The Appellant argued that under the Likely Limb, the Respondent either has to prove knowledge, intention or recklessness on the part of the defendant (the “1st Alternative”), or that the defendant did not act in an honest and reasonable belief that the circumstances or likely consequences of his conduct were such that he would not be liable for his actions (the “2nd Alternative”). (2) The Respondent argued that it is not necessary to establish any state of mind on the part of the defendant under the Likely Limb (the “5th Alternative”). 7. In the present case, the Court held that the 1st Alternative does not apply to the Likely Limb, as intention as a mental element is already provided for under the Intended Limb of the Offence. It can be assumed that the legislature did not intend to duplicate it in the Likely Limb. 8. The Court also held that the 2nd Alternative does not apply. This is because when defendants, in a group of at least three persons, have assembled together and conducted themselves in a disorderly, intimidating, insulting or provocative manner which, viewed objectively, will have been likely to cause any person reasonably to fear that the assembled persons will commit a breach of the peace, they are not persons who have acted in a reasonable, diligent and socially unblameworthy manner. Such construction aligns with the purpose of the Offence which is to prevent and control disorders, as early as possible. 9. In holding that the 5th Alternative applies, the Court concluded that, the offence under the Likely Limb is designed to prevent breaches of the peace from happening. As such, it is not logically linked to whether the assembled persons do or do not foresee reasonable apprehension of breach of the peace as the consequence of their acts, but is focused instead on responding to the objectionable nature and quality of those acts. 10. The Court further observed that, although no mental element needs to be proved under the Likely Limb, such construction does not “overcriminalise” behaviour as the Offence has built-in requirements ensuring that the conduct is deserving of criminal punishment. The Offence still requires proof of a guilty mind in relation to the acts of assembling together and acting together in conducting themselves in a disorderly, intimidating, insulting or provocative manner. Further, section 18(3) of the POO requires the prosecution to prove that a defendant took part in the unlawful assembly. 11. In the present case, on the facts found by the Magistrate and upheld by the Court of First Instance, the Appellant must have known at the time of the gathering in which he took part in the Legislative Council Complex that the group’s conduct was likely to cause fear of a breach of the peace. In the circumstances, regardless of the Court’s answer as to which of the Kulemesin alternatives applies, the Appellant’s appeal was bound to be dismissed. Disposition 12. Accordingly, the appeal was unanimously dismissed.