CONSTITUTIONAL & ADMINISTRATIVE LAW – High Court finds legal challenge over police use of tear gas on 12 June 2019 reasonably arguable with realistic prospect of success
At around 4:00 pm on 12 June 2019, the Hong Kong Police Force (“Police”) used tear gas grenades to disperse the lawful public meeting organised by the Civil Human Rights Front outside CITIC Tower. His Honourable Mr. Justice Chow held that the application for judicial review of this decision by the Police is “reasonably arguable” and has “a realistic prospect of success”: Sham Tsz Kit & Anor v Commissioner of Police & Anor  HKCFI 746.
This case centers on CHRF’s Public Meeting outside CITIC Tower when lawmakers were scheduled to carry out a second reading of the now-withdraw Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. At issue is whether it was lawful and constitutional for the Police to use tear gas grenades to disperse the Public Meeting, for which CHRF had obtained a letter of no objection.
Court of First Instance’s Decision
The Court held that while police officers are entitled to use force in the course of carrying out lawful operational duties, the force actually used should be no more than reasonably necessary in the circumstances of the case to achieve the intended purpose(s).
Where circumstances permit, prior warning should be given of the intended use of force and of the nature and degree of the force that it is intended to use. The person or persons against whom force is intended to be used should be given an opportunity to obey police instructions before force is actually used.
Moreover, where tear gas is to be deployed to disperse a crowd, police officers should give prior warning of its intended deployment, allow the crowd sufficient time to disperse, and provide a reasonable route for safe and effective dispersal without being subjected to tear gas.
A failure to observe these requirements may lead to the conclusion that the police officers concerned have acted in breach of Article 3 of the Hong Kong Bill of Rights, section 46 of the Public Order Ordinance (Cap. 245), section 101A of the Criminal Procedure Ordinance (Cap. 221), Chapter 29 of the Police General Order and/or Chapter 13 of the Police’s internal Weapons Training Manual (collectively “Relevant Provisions”).
On the materials before the Court, Chow J held that the Applicants’ case that the Police acted in breach of the Relevant Provisions is reasonably arguable and has a realistic prospect of success. However, whether such case can actually be made out depends on a proper resolution of certain factual disputes, including, inter alia:
(i) whether the Public Meeting (as an authorised public meeting) was distinct from the behaviour of other people outside LegCo or anywhere else;
(ii) whether the Police had given proper or sufficient notice of their intention to curtail the meeting and to deploy tear gas to disperse the crowd;
(iii) whether the Police had given sufficient time and provided assistance to the participants to leave the Public Meeting prior to the deployment of tear gas;
(iv) whether the Police had provided a clear and safe route of escape; and
(v) whether the deployment of tear gas grenades was no more than reasonably necessary to disperse the crowd.
In that connection, the Court gave leave to the Applicants to apply, if they wish, for an order that these proceedings shall continue as if they had begun by writ under Order 53, rule 9(5) of the Rules of the High Court within 14 days from the date of this judgment.
Gladys Li SC, leading Jeffrey Tam and Andrew Lau, instructed by Ho, Tse, Wai & Partners, acted for the 1st and 2nd Applicants.
Since being called in 2009, Jeffrey has established a solid practice in public law, having been involved in a number of landmark judicial review cases. Recently, Jeffrey (with Abigail Liu) successfully resisted an election petition in Tung Kin Lei v Ng Ting Lam Kundama & Others HCAL 245/2020;  HKCFI 514, where the Court interpreted section 51 of the District Councils Ordinance (Cap. 547) for the first time.
Jeffrey is also experienced in a broad range of civil work with an emphasis on land, probate, company and commercial law. He regularly represents both landlords and squatters in adverse possession cases. In terms of commercial cases, Jeffrey is frequently involved in shareholders’ disputes as well as securities and finance cases.
Andrew’s notable cases include Lau Siu Lai v Kwok Wai Fun, Franco (Returning Officer for the Kowloon West Geographical Constituency) and Another  HKCFA 31 (Court of Final Appeal refuses leave to appeal in election petition), and 陳基裘 v. 香港政府警務處  HKCFI 2882 and Yeung Tsz Chun v. Commissioner of Police  HKCFI 2882 (police failure to display unique identification and lack of independent police complaints mechanism violate Hong Kong Bill of Rights) (both with Jeffrey Tam).
Court work aside, Andrew teaches administrative law at the Chinese University of Hong Kong and media law at the Hong Kong Baptist University.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.