1. There are 5 appellants in these two appeals which were heard together. Each of them was charged with the offence of contravening an Administrative Instruction (“section 11”) issued under section 8(3) of the Legislative Council (Powers and Privileges) Ordinance(“LCPPO”), namely failing to “behave in an orderly manner” within the precincts of the Chamber of the Legislative Council (“LegCo”)[1]. Three of them were defendants in the case of ESCC 3350/2014 (HCMA 617/2015) : Yip Po‑lam (D1 at trial, hereinafter called “D1”), Cheung Hon‑yin (D2 at trial, hereinafter called “D2”) and Wong Kan‑yuen (D3 at trial, hereinafter called “D3”). The other two were defendants in the case of ESCC 3406/2014 (HCMA 438/2015) : Cheung Kwai‑choi (D1 at trial, hereinafter called “D4”) and Chow Nok‑hang (D2 at trial, hereinafter called “D5”). The cases stemmed from two different incidents of demonstration in the precincts of the Chamber of LegCo. With consent from parties, the two cases of appeal were heard together. As D2 was absent allegedly due to health reason, his case was severed. 2. All the appellants appeal against conviction. D1 and D3 also appeal against sentence. D1 was sentenced to an imprisonment term of two weeks and D3 a term of three weeks. Prosecution Case ESCC 3350/2014 3. On 6 June 2014, the Finance Committee (“FC”) of LegCo held a meeting at which the funding application for the advance works of the “North-East New Territories Development Proposal” (“NENT Proposal”) was discussed. 4. At about 5:27pm, protesters rushed into the Lobby of the precinct of the Chambers and occupied it. Some of them, including D3, resisted the effort of staff and police officers to close the doors. The doors were obstructed until around 9:57pm. 5. At about 9:45pm, the FC meeting was adjourned. However, a large number of protesters remained in the Lobby and refused to leave despite repeated warnings. During that time, D1 delivered two speeches. At about 11:35pm, protesters started to leave with the last batch left after midnight. ESCC 3406/2014 6. The FC meeting resumed at 3pm on 13 June 2014. Some protesters demonstrated in the designated public activity area (“DPAA”) at the car park of the LegCo Complex. 7. At about 5:05pm, D4 went onto the Canopy and with the assistance of D5 hang up four big banners. They ignored warnings from LegCo security staff and the order was allegedly disturbed. Appeal against Conviction 8. Major grounds of appeal include that section 11 of the Administrative Instruction is unconstitutional, the Magistrates erred in relation to the elements of the offence, and the conviction is unsafe or unsatisfactory. 9. Section 11 of the Administrative Instruction, which was issued pursuant to section 8(3) of the LCPPO, restricts the rights to freedom of expression, demonstration and assembly, which are rights guaranteed under the International Covenant on Civil and Political Rights and enshrined in the Basic Law. 10. The relevant rights can only be restricted if two requirements are satisfied: (1) The restriction is prescribed by law; and (2) The restriction is 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. 11. The restriction is prescribed by law by virtue of section 11. The question is whether the restriction imposed in section 11 is necessary. 12. To be necessary, the following criteria have to be met : (a)The restriction or limitation pursues a legitimate aim; (b) The restriction or limitation is rationally connected to that legitimate aim; (c) The restriction or limitation is no more than is necessary to accomplish that legitimate aim; and (d)A fair balance is struck between the rights of the individual and the interests of the community. 13. Owing to its constitutional role and functions as the sole legislature body in the HKSAR, the LegCo has institutional uniqueness. 14. It is also where members of the community may go and express their view. It is an important constitutional right. Nevertheless, exercise of the right must be subject to regulation, otherwise the role and functions of the LegCo as well as the rights of other members of the community may be jeopardised. 15. Section 11 only prohibits failure to “behave in an orderly manner” within the precinct of the Chambers. Whether a conduct amounts to failure to “behave in an orderly manner” is to be judged on evidence by applying the ordinary meaning of “behave in an orderly manner” to the time, place and circumstances in question, having regard to the purpose of the Administrative Instruction, of which section 11 is a part. 16. The restriction is necessary in the interest of public order (ordre public) as well as protection of the rights of those who enter and stay in the precincts of the Chamber for a legitimate purpose. Creating a secure and dignified environment which is conducive to the legislature carrying out its constitutional function is a legitimate aim. Setting a standard of orderly behavior and regulating the behavior of members of the public in the precincts of the Chamber are rationally connected to that aim. 17. If an incident which section 11 seeks to regulate occurs, there will be impact on the important duties and functions which the LegCo has to execute, and the rights of members of the public to observe LegCo proceedings may be compromised. 18. The restriction is clearly defined. The Court finds that restricting the relevant right of the people inside the precinct of the Chambers by means of penalising a person for failing to “behave in an orderly manner” is rationally connected to a legitimate aim, the limitation is necessary and not disproportionate, it strikes the right balance between the rights of the individual and the interests of the community. 19. The Court therefore finds section 11 constitutional and valid. 20. The Court does not agree that only the conduct which has, or is likely to have, the effect of direct and actual disruption or disturbance of the LegCo proceedings or other members of the public in observing such proceedings amounts to failure to “behave in an orderly manner”. 21. The Court does not agree that the prosecution has to prove that the accused had both failed to “behave in an orderly manner” and “failed to comply with the direction of the officer”. These are two separate offences. 22. The Court does not accept the submission that as a matter of course where there was no order in existence or the proper order had been disturbed or disrupted, the duty of behaving in an orderly manner no longer exists. 23. The Court does not agree that section 11 only targets persons officially permitted into the precincts of the Chamber but not those who enter without permission. 24. In all the circumstances, having perused the video footages already adduced as evidence at trial, the Court finds the conclusion of the Magistrate that D1 and D3 had each failed to “behave in an orderly manner” reasonable, accord with the legislative purpose and sufficiently supported by evidence. 25. As regards the convictions of D4 and D5, even though the incident took place in a DPAA, it was part of the precinct of the Chambers. The Court is of the view that the Magistrate was entitled to find on evidence that the conduct of D4 amounted to failing to “behave in an orderly manner” and D5 was acting in concert with D4. 26. The Court therefore dismisses the appeal against conviction by the relevant Appellants. Appeal against sentence 27. The Court does not consider D1 a suitable candidate for CSO, nor is CSO appropriate in her case, for the following reasons: (1) Despite the incident was peaceful, it was prolonged and D1 did not play a minor role; (2) D1 has been convicted of offences of like nature though not identical; and (3) There is no indication that she is in genuine remorse. 43. The starting point of two weeks is not wrong in principle or manifestly excessive. There is nothing which justifies a discount. The Court does not consider it appropriate to have the sentence suspended. Fine is plainly insufficient to reflect the true culpability of D1 in the case. 44. In relation to D3, despite there is no evidence to prove that his conduct directly caused any injuries, the chaotic situation in which he actively took part had caused the injuries of several staff. Even though he did not have any prior criminal conviction, in the circumstances of the present case, immediate custodial sentence is the only appropriate sentence to impose. A fine is insufficient to reflect the nature and seriousness of the conduct and its consequences. CSO is not appropriate due to the lack of genuine remorse on the part of D3. There is no justification to suspend the imprisonment term. 45. As the sentence imposed respectively on D1 and D3 is neither wrong in principle nor manifestly excessive, the appeal against sentence is also dismissed. [1] Contrary to section 20(b) of LCPPO, Cap 382, Laws of Hong Kong.