Hong Kong Law & Crime

Top court rules that approval not needed for police to enter Hong Kong legislature

Hong Kong’s top court has ruled that approval from the Legislative Council president is not required for police officers to enter the precinct of the council’s chambers. Police could be considered “Legislative Council officers” when carrying out their ordinary duties, the court said.

The case involved activist Leung Hiu-yeung, who was among 13 protesters convicted of unlawful assembly after participating in demonstrations against the controversial northeast New Territories development plans outside the legislature in 2014.

Leung was also convicted of obstructing an officer of the Legislative Council while in the execution of his duty – the officer in question was Police Inspector Kwok Chun-kit. Leung was said to have “vigorously shoved” police officers who were attempting to form a cordon. The police were present at the request of then-Legislative Council president Jasper Tsang, who believed that dealing with the protesters was beyond the capacity of LegCo’s security personnel.

Court of Final Appeal.

Court of Final Appeal. File photo: In-Media.

Leung filed an appeal against his conviction on the grounds that Kwok was not an officer of the Legislative Council and that – even if he was – he was “not acting in the execution of his duty when obstructed by the appellant.”

LegCo officers

Leung, represented by Senior Counsel Philip Dykes, initially argued that a police officer is only allowed to enter and remain in the precincts of the Legislative Council chamber if invited by – or on the authority of – LegCo’s President. Without an invitation, a police officer is not lawfully present and is therefore not an “officer of the Council,” he said.

Dykes later accepted that police could lawfully enter the chamber but argued that, unless invited, they were acting as police officers rather than officers of the Council. Therefore, under such circumstances one could be found guilty of obstructing a police officer, but not obstructing a Legislative Council officer.

Jasper Tsang

Jasper Tsang. File photo: LegCo.

On Thursday, the Court of Final Appeal unanimously dismissed Leung’s appeal and ruled that “[t]here is no legal foundation for the premise that a police officer can enter the precincts of Legco only by invitation or on the authority of the President.”

The court added: “Once it is accepted that no invitation is needed to enable a police officer lawfully to enter Legco’s precincts to perform his ordinary duties, it is difficult to see how one can deny that such an officer comes within the definition of an ‘officer of the Council’…”

“Even if, contrary to the foregoing analysis, the appellant is correct in his submission… the police officers concerned did in fact receive such an invitation,” it continued.

The court also rejected that the enforcement of ordinary criminal law within Legislative Council precinct involved a separation of powers issue.

The court said that Article 78 – which immunises Legislative Council members from arrest when involved in core business of the legislature – has no relevance to those who were not members, such as Leung.

Top court rules that approval not needed for police to enter Hong Kong legislature