Sunteți pe pagina 1din 119

FACV No.

3 of 2014

IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2014 (CIVIL)
(ON APPEAL FROM CACV NO. 244 OF 2012)

____________________

BETWEEN

T Respondent
and
COMMISSIONER OF POLICE Appellant

____________________


Before: Chief J ustice Ma, Mr J ustice Ribeiro PJ ,
Mr J ustice Tang PJ , Mr J ustice Fok PJ and
Lord Neuberger of Abbotsbury NPJ
Dates of Hearing: 20 21 August 2014
Date of J udgment: 10 September 2014

____________________

J U D G M E N T
____________________

Chief Justice Ma:
1. The issues for determination in this appeal concern s 4 of the Places
of Public Entertainment Ordinance Cap 172 (the PPEO),
1
which requires a

1
For the relevant text, see para 3 below.
- 2 -


licence to be obtained by any person who keeps or uses any place of public
entertainment. There are two issues, in broad terms: the meaning of a place of
public entertainment and the constitutionality of the licensing regime under the
PPEO. The determination of these issues give rise to important consequences as
far as the holding of public entertainment on public streets or other publicly
accessible places in Hong Kong is concerned.
2. For the reasons which appear in the comprehensive judgment of
Mr J ustice Ribeiro PJ , with which I fully agree, this appeal should be allowed.
However, in view of the divergence of views among the members of the Court,
I ought briefly to emphasize a few points regarding the first issue, which
involves an exercise in statutory construction. According to the Court of Appeal
and the majority in this Court, the meaning of a place of public entertainment
should be restricted to a place where there is controlled admission. By
controlled admission, I take this to mean some form of control over the
admission of persons into a place, with the ability to exclude such persons from
entry into that place. Accordingly, public streets or a section thereof and other
public places to which the Ordinance might otherwise apply, unless there is this
element of controlled admission, would be outside the ambit of s 4 of the
Ordinance. The view of the Court of Appeal was that as far as streets to which
the public had access were concerned, they would come within s 4 only if the
relevant area where the entertainment took place, was cordoned off or enclosed.
The declaration sought by the Applicant in the judicial review proceedings (the
Respondent in the present appeal) was that s 4 did not include an open space
area (not being enclosed). Before us, counsel for the Applicant
2
argued that the
element of controlled admission had to be present.

2
Mr Hectar Pun, with him Mr Newman Lam and Mr Albert Wong. The Appellant was represented by
Mr Johnny Mok SC and Mr Abraham Chan.
- 3 -


3. It is unnecessary for me to set out the facts; they are amply
described in the judgments of Mr J ustice Ribeiro PJ and Mr J ustice Fok PJ . The
relevant provisions in the PPEO to construe are s 4 which uses the term place
of public entertainment and the interpretation provision, s 2, which defines this
term and in doing so refers to the words public entertainment:-
s 2 Interpretation
..
place of public entertainment ( ) m eans
(a) so much of any place, building, erection or structure, whether
temporary or permanent, capable of accommodating the public; and
(b) any vessel,
in or on which a public entertainment is presented or carried on whether on one
occasion or more.

public entertainment ( ) m ea
of this Ordinance to which the general public is admitted with or without
payment.
.

s 4 Licences for places of public entertainment

(1) No person shall keep or use any place of public entertainment without
a licence granted under this Ordinance.

(2) Any person who contravenes subsection (1) shall be guilty of an
offence and shall be liable to conviction to a fine at level 4 and
imprisonment for 6 months, and to a further fine of $2,000 for every
day during which the offence has continued.

For completeness, I would also refer to the definition in Chinese of public
entertainment:

(public entertainment)
;

4. The proper construction of the provisions just set out is critical in
the present case. The starting point in any exercise of statutory interpretation is
to look at the context and purpose of the relevant provisions. As has been stated
- 4 -


and reiterated in numerous recent decisions of this Court,
3
it is to context and
purpose that one looks first in examining the words under scrutiny. One does
not begin by looking at what might be termed the natural and ordinary
meaning, much less I would add a literal meaning, and then put the onus on
anyone seeking to advance different meaning to establish some ground which
compels acceptance of that different meaning.
4
It is context and purpose that
will, in the vast majority of cases, be determinative of the meaning of the words
sought to be construed, rather than attempting as a starting point to look at
words in a vacuum.
5. In the case of the PPEO, the context and purpose of the Ordinance
is clear: it is public safety. The title of the statute emphasizes the public nature
of it, and the contents of both the Ordinance and the Regulations thereunder deal
predominantly with issues of safety. There is also an associated purpose which
is clear from the contents of the Ordinance, namely that pre-planning (which
involves risk assessment) is very much seen to be an integral part of public
safety. By pre-planning I mean the requirement in obtaining a licence under the
PPEO to give notification 42 days prior to the event to a number of different
government departments, as may be appropriate, such as the Commissioner of
Police, the Director of Fire Services, the Director of Housing, the Building
Authority, the Director of Marine and the Director of Electrical and Mechanical
Services. While provisions in other Ordinances to which we have been referred
do involve aspects of public safety,
5
they enable the police to take action only
as and when incidents or situations suddenly occur. In other words, they do not
cater for any form of precautionary measures regarding public safety to be taken.

3
Such as Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, at paras 75-77; Fully Profit (Asia)
Ltd v Secretary for Justice (2013) 16 HKCFAR 351, at para 15.
4
See Vallejos at para 76.
5
Such as s 10 of the Police Force Ordinance, Cap 232; s 17 of the Public Order Ordinance Cap 245 (in
relation to public gatherings).

- 5 -


The closest Ordinance in this respect is perhaps the requirement to give notice of
a public meeting under s 7 of the Public Order Ordinance, but, as can be seen
from the interpretation section of that Ordinance,
6
the ambit is limited.
6. With this approach in mind, I turn to the exercise of construing the
relevant provisions of the PPEO identified earlier.
7. The critical words to be examined are the place of public
entertainment to which the PPEO applies. Here, the definition of those words
7

refer to any place, building, erection or structure. The places intended to be
covered are wide and, in view of the context and purpose of the Ordinance,
intended to be so, although I accept there are limits as articulated by
Mr J ustice Ribeiro PJ .
8
What is clear, however, is that it makes no sense
artificially to cut down the wide meaning of the word place. In view of what
the Ordinance seeks to achieve, in adopting a purposive approach to statutory
construction, this must be right.
8. Mr Pun argues that the Ordinance, in particular s 4, can only apply
in a limited way: as stated above only to places where there is the element of
controlled admission. Is this right? Like Mr J ustice Ribeiro PJ , I am not
persuaded.
9. First, nothing in the Ordinance, apart from the use of the word
admitted in the definition of public entertainment, remotely suggests that
controlled admission to a place is a pre-requisite to the applicability of the
licensing regime under the Ordinance. There are of course references in the

6
Section 2.
7
See para 3 above.
8
See para 55 below.
- 6 -


Ordinance relating to the admission of persons to a place,
9
but there are also
many provisions that do not.
10. Secondly, I can see neither policy reasons nor commonsense to
restrict the application of the Ordinance in the way advanced by the Applicant.
11. The use of the word admitted in the definition of public
entertainment in s 2 of the PPEO, which is crucial to the Applicants case, does
not on analysis compel this restrictive view of the Ordinance either:-
(1) The first observation to make is that the word admitted qualifies
the word entertainment.
10
In context, as a matter of language
alone, the meaning of the word admitted is not used in the
physical sense of being allowed entry into a place. It is used to
emphasize the public nature of the entertainment to which the
Ordinance applies, that is, entertainments to which the public has
access as opposed to those entertainments to which the public does
not have access.
(2) However, Mr Pun submits that the words public entertainment
appear in the definition of place of public entertainment and
therefore as a matter of construction, the word admitted becomes
applicable to the place of public entertainment. One obvious flaw
to this argument is that it involves changing the applicability of the
word admitted from public entertainment to the place of

9
Such as s 10(2)(f) of the PPEO whereby the licensing authority can specify the maximum number of persons
who may be admitted as regards an entertainment.
10
As stated in s 2, entertainment means the events, activities and other things set out in Schedule 1 of the
Ordinance.

- 7 -


public entertainment. Nothing in the language of the Ordinance
warrants this approach.
(3) More important, even if it were somehow permissible to transpose
or alter the meaning the word admitted in this way, it is difficult
to see how this can then result in the legal requirement that the
Ordinance only applies to places where there is controlled
admission. As a matter of statutory drafting, this seems a very odd
way, to say the least, to prescribe such an important legal
requirement; almost, as it were, by a side wind. As indicated earlier,
nothing in the rest of the Ordinance suggests this.
(4) It is even more difficult to arrive at this conclusion when one
returns to the context and purpose of the Ordinance. To say that the
Ordinance applies only to places, and public places at that, where
there is controlled admission, artificially limits the application of
the Ordinance in a way that does not make sense.
(5) Reference to the Chinese text
11
provides little assistance as well.
Read literally and in a vacuum, the words in Chinese admittedly
envisage a physical entry into a place, but those words refer again
only to public entertainment and not place of public
entertainment. Moreover, insofar as any doubt exists as between
the Chinese and English texts, s 10B of the Interpretation and

11
See para 3 above.

- 8 -


General Clauses Ordinance, Cap 1,
12
requires that regard must be
had to the object and purposes of the relevant Ordinance.
12. I am of course aware that whatever be the policy and purpose of
any Ordinance, the Court cannot give a meaning to words in a statute which
those words are incapable of bearing.
13
The way Mr J ustice Ribeiro PJ and I
have looked at the matter does not involve giving words a meaning they are
incapable of bearing.
13. I find it difficult to accept that the Applicants construction of the
statute, which has the consequence of creating the artificial requirement of
controlled admission, could ever have been the intent of the Ordinance. It
would make the PPEO inapplicable to events such as the present one where, at
least potentially, if not actually, large numbers of people gathered in a public
street. In such a situation, the PPEO would apply to public streets or places, or a
part thereof, where there existed this element of controlled admission (such as
where a part was cordoned off), but the Ordinance would be inapplicable where
this element was missing, albeit the same street was involved where there may
be even more people present. Neither the language of the Ordinance, nor
certainly its purpose, compels this result.
Mr Justice Ribeiro PJ:
14. This appeal concerns the scope of the duty to obtain a licence
imposed by the Places of Public Entertainment Ordinance (PPEO).
14
In the

12
Set out in para 82 below.
13
See HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at para 63 (per Sir Anthony Mason NPJ); China
Field Ltd v Appeal Tribunal (Buildings) (No. 2) (2009) 12 HKCFAR 342 at para 36 (per Lord Millett NPJ).
14
Cap 172.
- 9 -


Courts below, Lam J (as Lam VP then was) held that events like the event in
question required such a licence.
15
The Court of Appeal disagreed.
16

A. The facts
15. The facts are not in dispute. Since 2005, supporters of LGBTI
17

rights in Hong Kong, as in other countries, have commemorated the removal in
1990 by the World Health Organization of homosexuality from its list of mental
disorders. They have done so by organizing an event to celebrate International
Day Against Homophobia (known as IDAHO). Their purpose has been to
raise the publics awareness of anti-discrimination, equal opportunities and anti-
homophobia issues, and to provide a platform for the LGBTI community to
express their views and to share experiences of those issues.
16. The 7
th
IDAHO event was scheduled to be held on Sunday, 15 May
2011, between 3.00 pm and 5.00 pm in a portion of Lockhart Road between East
Point Road and Cannon Street which would then serve as a designated
pedestrian precinct closed to traffic (the pedestrian precinct).
18
It was co-
hosted by certain LGBTI and human rights organizations including Tongzhi
Community J oint Meeting and Amnesty International Hong Kong.
17. The organizers notified the Commissioner of Police of the intended
event and provided information, including a map indicating the exact location
of the IDAHO and the place where a stage would be erected and a draft
programme rundown.
19
They received a Notice of No Objection in accordance

15
HCAL 102/2011 (16 July 2012).
16
Cheung CJHC, Stock VP and Barma JA, CACV 244/2012 (18 September 2013).
17
Lesbian, gay, bisexual, transgender and intersex.
18
The area was regularly designated a pedestrian precinct between 4.00 pm and midnight on weekdays and
between noon and midnight on weekends and public holidays.
19
Agreed Facts 17 and 18.
- 10 -


with the Public Order Ordinance (POO)
20
but were told by the Police that they
might require a temporary licence under the PPEO. They were advised to raise
this with the Director of the Food and Environmental Hygiene Department
(FEHD), the designated licensing authority.
21
This the organizers duly did,
submitting an application for such a licence which identified the place of the
proposed entertainment and stated that a temporary stage (with dimensions not
exceeding 13 x 8 x 13 ft) was proposed; that the venue would be open on all
sides; and that 30 volunteers would assist.
18. The FEHD circulated the application to six government
departments
22
including the Commissioner of Police. After reviewing the
application, the Commissioner wrote to the FEHD on 9 May 2011 stating that he
had no objection subject to the applicant preparing an evacuation plan and
ensuring that the conditions imposed by the Fire Services Department, the
Buildings Department, the Environmental Protection Department and the FEHD
were fully complied with. The Commissioner also recommended that additional
conditions be included for public safety and order, including the provision of
at least 30 marshals; ensuring a smooth flow of pedestrians at the venue and not
occupying more than one vehicular lane at any time.
19. On 12 May 2011, the organizers withdrew their application stating
that there will not be any Entertainment activities during the IDAHO
on 15 May 2011. This was acknowledged by the FEHD which informed the
other departments on 13 May 2011 of the applications withdrawal.

20
Cap 245. Conditions stipulated included a requirement to notify the Police if the organizers became aware
of any drastic increase or decrease in the number of participants over or under the 250 people stated in the
notice and arranging for 4 or 5 marshals and one first aid attendant to assist at the meeting.
21
Designated by the Secretary for Home Affairs under PPEO section 3B.
22
Director of Fire Services, Director of Buildings, Commissioner of Transport, Director of Highways, Director
of Environmental Protection and Commissioner of Police.
- 11 -


20. The IDAHO event began with speeches given on the stage on the
themes mentioned above. At about 3.30 pm, what is now accepted to have been
a dance performance (and therefore an entertainment
23
for PPEO purposes)
began and drew about 150 to 200 participants. It was due to last for
about 20 minutes but stopped after 10 minutes when a police inspector told the
organizers that what they were doing required a temporary licence under the
PPEO and involved committing an offence since they had none. The IDAHO
event continued with readings about torture, arbitrary arrest and imprisonment
suffered by homosexuals around the world. It ended at 4.30 pm,
about 30 minutes earlier than scheduled. No one has been prosecuted over this
incident.
B. Application for judicial review
21. Some seven months later, the applicant, who was one of the
participants in the IDAHO event, sought leave to bring judicial review
proceedings to challenge the position taken by the Police in requiring the dance
performance to be halted for want of a PPEO licence. Although the applicant
was well out of time, Lam J granted him leave to apply for judicial review
seeking:
... a declaration that a place of public entertainment, for the purposes of the PPEO,
does not include an open space area (not being enclosed) where a political
demonstration occurs; or alternatively,
... a declaration that sections 2 and 4 of the PPEO to the extent that a place of public
entertainment, for the purposes of the PPEO, does include an open space area (not
being enclosed) where a political demonstration occurs are inconsistent with Articles
27 and 39 of the Basic Law of the HKSAR ... and/or Articles 16(2) and 17 of the Hong
Kong Bill of Rights ... of section 8 of the Hong Kong Bill of Rights Ordinance, Cap.
383 and/or Articles 19 and 21 of the International Covenant on Civil and Political
Rights 1966 ..., and are unconstitutional.

23
Which includes an exhibition of dancing (Schedule 1, para 2).
- 12 -


C. The main PPEO provisions engaged
22. It will be necessary later to examine the overall structure of the
PPEO and the Places of Public Entertainment Regulations (PPER). For the
present, to facilitate discussion of the decisions below, the main PPEO
provisions relevant are set out as follows.
23. Section 4(1) lays down the duty to obtain a licence in the following
terms:
No person shall keep or use any place of public entertainment without a licence
granted under this Ordinance.
24

24. Three definitions are relevant to that duty:
entertainment includes any event, activity or other thing specified in Schedule1;
public entertainment means any entertainment within the meaning of this Ordinance
to which the general public is admitted with or without payment.
place of public entertainment means -
(a) so much of any place, building, erection or structure, whether temporary or
permanent, capable of accommodating the public; and
(b) any vessel,
in or on which a public entertainment is presented or carried on whether on one
occasion or more;...
25. Schedule 1, referred to in the definition section, lists the activities
that constitute entertainment as follows:
1. The events, activities and other things referred to in the definition of
entertainment in section 2 of this Ordinance are the following or any part of
any of them-
(a) a concert, opera, ballet, stage performance or other musical, dramatic or
theatrical entertainment;
(b) a cinematograph or laser projection display;
(c) a circus;

24
Section 4(2) makes contravention an offence punishable by a fine and imprisonment for 6 months, and by a
further fine of $2000 for every day during which the offence continues.

- 13 -


(d) lecture or story-telling;
(e) an exhibition of any 1 or more of the following, namely, pictures,
photographs, books, manuscripts or other documents or other things;
(f) a sporting exhibition or contest;
(g) a bazaar;
(h) ...
(i) an amusement ride within the meaning of the Amusement Rides
(Safety) Ordinance (Cap 449) or any mechanical device (other than
such an amusement ride) which is designed for amusement;
(j) a dance party.
2. In this Schedule stage performance includes a tragedy, melodrama, comedy,
farce, pantomime, revue, burlesque, burletta, shadow play, an exhibition of
dancing, conjuring or juggling, an acrobatic performance and any other stage
event including an interlude.
3. In this Schedule, dance party means an event with all of the following
attributes-
(a) music or rhythmic sound of any kind or source is provided at the event;
(b) the primary activity at the event is dancing by the persons attending the
event;
(c) either-
(i) the number of persons attending the event exceeds 200 on at
least one occasion during the event;
or
(ii) any part of the event occurs between 2 a.m. and 6 a.m.
D. Lam Js decision
26. As reflected in the first declaration sought, the construction
argument advanced on behalf of the applicant before Lam J , had two elements.
It was submitted, first, that the dance performance was not entertainment
because its sole or dominant purpose was not to provide entertainment but rather,
to stage a political demonstration.
25
Lam J rejected that argument, holding that
the applicability of a statutory scheme to protect public safety could not depend
on a highly subjective criterion regarding the dominant purpose of a dance

25
Judgment 46, 70-72.
- 14 -


performance, especially since an artistic performance conveying a political
message could also aim to be entertaining.
26
The Court of Appeal agreed
27
and
that argument is no longer pursued.
27. The second contention was that the expression place of public
entertainment does not encompass an open space that is not enclosed. That is
an argument to which I shall return. It rested on the concept of the general
public being admitted with or without payment in the definition of public
entertainment. The argument was that while a place of public entertainment
could be an outdoor place, it had to be a place where there is some form of
physical demarcation and the organizer can exercise control by way of
admission or non-admission of audience.
28

28. It was rejected by Lam J who held that for the PPEO to apply, it
was unnecessary for the organizer of a public entertainment to have exclusive
control over attendance; that the place where the IDAHO event was held was
sufficiently demarcated; and that the conditions imposed ensured that the
organizers had sufficient control to satisfy the criterion of admission. His
Lordship concluded that in the PPEO context, the word place should ... be
given its ordinary meaning which includes an open space or a portion of a street
which is not enclosed.
29

29. Turning to the constitutional objection, Lam J accepted that the
licensing regime does involve a restriction on the right to peaceful assembly
under Article 17 of the Bill of Rights.
30
However, he rejected the

26
Judgment 73-77.
27
Court of Appeal 15.
28
Judgment 50, 52.
29
Judgment 59-69.
30
Article 17: The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are 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.
- 15 -


unconstitutionality complaint, holding that the PPEO did not lack legal
certainty;
31
that the Ordinance pursued a legitimate purpose; that the licensing
requirements were rationally connected to achieving that purpose; and that those
requirements were a proportionate measure.
32
Lam J therefore dismissed the
application for judicial review.
E. The Court of Appeals decision
30. The Court of Appeal disagreed with Lam Js construction in one
crucial respect. Their Lordships essentially accepted the argument rejected by
Lam J , that a place could only qualify as a place of public entertainment if it was
physically cordoned off or enclosed, enabling the organizer to exercise control
by way of admission or non-admission of the audience.
31. Focusing on the definition of public entertainment, Cheung
CJ HC (with whom the other members of the Court of Appeal agreed) stated:
...the crux of the arguments turns on the reference in the definition to the general
public being admitted, with or without payment to the entertainment in question. In
my view, this implies, or at least suggests, that the organiser or performer of the
entertainment has, or is entitled to exercise, a certain degree of control as a matter of
law; or exerts, or purports to exert, a certain degree of control as a matter of fact, over
the place in which the entertainment is presented or carried on, so as to enable him to
admit, or as the case may be, exclude members of the public from the
entertainment.
33

32. His Lordship noted that the definition refers to admitting the
general public to the entertainment, rather than to the place of entertainment,
but held that it does not make any difference: Admission to an entertainment
connotes the idea of admission to the locality where the entertainment takes
place.
34


31
Judgment 81-85.
32
Judgment 86-95.
33
Court of Appeal 28.
34
Court of Appeal 29-30.
- 16 -


33. Cheung CJ HC considered the essential element of control
necessarily lacking with an entertainment carried on in a public street where
access of the public to the portion of the street in question is not restricted by the
relevant authorities, and the portion of the street is not otherwise enclosed or
cordoned off by the organiser or performer.
35
He elaborated as follows:
...the very idea of admitting involves the possibility of rejecting admission or
excluding people from the entertainment. In the case of a public street, no member of
the general public can be said to be admitted or denied admission to an entertainment
carried on there, or, to the place of entertainment in question, absent any authorisation
by the Government to the organiser or performer to so control admission, or absent
any unilateral attempt by the latter to do so by enclosing or condoning off the part of
the street in question.
36

34. His Lordship reiterated:
... the very idea of the general public being admitted to an entertainment, or the place
of entertainment, involves the ability on the part of the organiser or performer of the
entertainment to control admission by admitting or excluding people, whether on
terms (such as the sale of tickets) or unconditionally. That ability may be a legal one,
such as a licence granted by the Government to so use the place together with the
express or implied authority to admit or exclude people from that place.
37

35. His Lordship envisaged an unauthorized exertion of de facto
control over admission resulting in a public street being cordoned off or
enclosed:
That ability may, conceivably, also be derived from a de facto exertion of control
over admission. For instance, an organiser or performer may, without having obtained
any necessary authority from the Government to do so, enclose or cordon off an area
in a public street, within which the entertainment is presented or carried on, and exert
or purport to exert the right to control admission to the enclosed or cordoned off
area.
38

36. Cheung CJ HC concluded:

35
Court of Appeal 34.
36
Ibid.
37
Court of Appeal 35.
38
Ibid.
- 17 -


Either way, it is crucial, in order to satisfy the definition of the general public being
admitted to the entertainment in question, for the organiser or performer to have that
ability to control admission.
39

37. Adding:
In reality, where a public street is involved, unless the place of entertainment is
suitably enclosed or cordoned off, it is difficult to control admission.
40

38. On the present facts, his Lordship noted:
There was never any application to the Government for authority or permission to use
the pedestrian precinct in question in such a way as to give the organisers the ability to
control admission to the pedestrian precinct. As a matter of fact, there was no attempt
whatsoever on their part to exercise any such control on the day in question. Members
of the public were as free as always to use the pedestrian precinct whether during the
demonstration or the dance performance. We have seen videos taken of the events in
question, as did the judge. What one sees is pedestrians, about their normal business,
passing the area of the demonstration or performance, some glancing at it as they walk
by, some pausing for a moment and then moving on, and some staying to watch.
There was no question of the organisers admitting or not admitting the general public
to the dance performance.
41

39. The Court of Appeal concluded that the dance performance though
an entertainment, was not a public entertainment and that [neither] the
pedestrian precinct nor the place of the performance was a place of public
entertainment.
42
The applicant was granted leave to amend his application for
relief and was granted a declaration that the dance performance did not require a
licence under the PPEO.
43
Having arrived at this result, the Court of Appeal did
not deal with the constitutional issue.
40. Mr Hectar Pun who appeared
44
on the respondents behalf, also put
his case firmly on the necessity for the organizer to exercise control over
admission to the place where the entertainment was to be presented before it

39
Court of Appeal 36.
40
Court of Appeal 40.
41
Court of Appeal 53.
42
Ibid.
43
Court of Appeal 55.
44
With Mr Newman Lam and Mr Albert N B Wong.
- 18 -


could qualify as a place of public entertainment caught by the PPEO, although
he did not support the Court of Appeals requirement that the site be physically
cordoned off or enclosed. It suffices for now to note that both those approaches
adopt as the central criterion for the PPEOs application, the ability of the
entertainments organizer to control admission of would-be entrants to (and their
exclusion from) the place of its presentation.
F. The consequences of the Court of Appeals decision
41. In the foregoing paragraphs I have set out the main lines of the
Court of Appeals reasoning in its construction of the essential provisions.
There were various supporting arguments which I shall discuss in due course.
But I should say at once, with great respect, that I view the consequences of
their Lordships decision with serious misgivings.
42. I accept, of course, that where an organizer presents an
entertainment in private premises and charges for admission, he will naturally
exert control over admission both to the entertainment and to the place in or at
which the entertainment takes place. However, the PPEO covers entertainments
to which the general public is admitted with or without payment and applies to
so much of any place ... whether temporary or permanent, capable of
accommodating the public ... in or on which a public entertainment is presented
or carried on This is apt to cover free entertainment open to the general
public, where access to the place of entertainment is unrestricted and the venue
not cordoned off or enclosed a not uncommon situation, as common
experience shows.
43. As Cheung CJ HC acknowledges:
There can be little doubt that the purpose of the Ordinance and the licensing
regulations made under it is to provide a means of effectively ensuring public safety
- 19 -


and order, and to protect the participants to entertainment from the hazard and dangers
associated with the gathering of crowds at places of public entertainment.
45

44. Given that premise, it is difficult to accept that it can have been the
legislative intent to confine application of the statutory scheme only to
entertainments which are presented in cordoned off or enclosed premises or
areas where the organizer is able to regulate admission. Adoption of that
criterion means that the PPEOs precautionary safety regime is excluded in all
other cases, however many members of the public may take part. And as the
Court of Appeal points out, that criterion effectively excludes all entertainments
taking place in public streets or spaces.
45. Entertainments staged in public open spaces for members of the
public without participants having to gain admission to any cordoned off area
are not at all uncommon. Nor are entertainments taking place on public roads or
in public plazas at all rare. Pop concerts in a public park or square, attended by
hundreds or even thousands of fans come readily to mind. Crowds of revellers
throng the pavements, roads and public squares at New Years Eve countdown
celebrations and at street carnivals staged in entertainment areas like Lan Kwai
Fong or Times Square. Crowds are attracted to fun charity races which are
regularly held on public streets involving waiters carrying trays of drinks, cooks
tossing pancakes, or costumed teams bearing sedan chairs, to name but a few.
The general public flocks to events such as the traditional Cheung Chau Bun
Festival and the Lunar New Year parade of floats in Tsim Sha Tsui. Spectators
position themselves on stretches of the waterfront or around typhoon shelters
where traditional Dragon Boat races are staged. Sporting events
46
such as
marathons or bicycle races are run on public roads.

45
Court of Appeal 22.
46
A sporting exhibition or contest being a category of entertainment: Schedule 1, para 1(f).
- 20 -


46. To attend such events, members of the general public are not
required to seek admission to any demarcated or cordoned off area. Why should
the acknowledged statutory purpose of providing a means of effectively
ensuring public safety and good order not apply on such occasions? If anything,
one would have thought that open entertainments with fluid, unregulated
attendance, have a particular need for precautionary planning under the statutory
licensing regime.
47. Against the background of these misgivings, I have arrived at a
construction of the relevant provisions which respectfully differs from that of
the Court of Appeal. In my judgment, viewed as a matter of language, viewed
purposively, historically and in the light of the decided cases cited, those
provisions supply no justification for confining the PPEOs application in the
manner proposed by the Court of Appeal or by Mr Pun in this Court.
G. The Issue of Construction
48. As was recently re-iterated in HKSAR v Li Kwok Cheung George,
47

the Court in HKSAR v Lam Kwong Wai
48
and HKSAR v Cheung Kwun Yin,
49

affirmed the need generally to interpret statutory language in the light of its
context and purpose, and not only when an ambiguity may be thought to arise.
It was also re-affirmed that the context of a statutory provision is taken in its
widest sense and certainly includes the other provisions of the statute and the
existing state of the law.
50
Adopting that approach, I shall begin by examining
the language of the main provisions relevant before considering more broadly
the structure, purpose and history of the PPEO and the PPER.

47
FACC Nos 4, 5 and 6 of 2013 (5 June 2014) at 37.
48
(2006) 9 HKCFAR 574 at 606.
49
(2009) 12 HKCFAR 568 at 12.
50
Other matters which may legitimately be taken as indicating the statutory purpose were also noted in
Cheung Kwun Yin at 14, including the Explanatory Memorandum of a bill and a statement made by a
responsible official of the government in relation to the Bill in the Legislative Council.
- 21 -


G.1 The language of the main provisions
49. The main provisions are set out in Section C above. The starting-
point is section 4 which lays down the duty to obtain a licence by making it an
offence to use or keep any place of public entertainment without a licence
granted under the PPEO. To ascertain the scope of that duty one therefore has to
ask what constitutes a place of public entertainment. The PPEO gives that
phrase a cumulative definition.
50. It begins with the definition of entertainment. The PPEO
stipulates that it includes any event, activity or other thing specified in
Schedule 1. As we have seen, Schedule 1 is cast in broad terms and lists
various items such as musical performances, exhibitions, sporting contests and
(as in the present case) exhibitions of dancing.
51. It moves next to the definition of public entertainment. The
PPEO defines this as entertainment within the meaning of the Ordinance to
which the general public is admitted with or without payment. It is of the first
importance to note that by this definition, an entertainment becomes a public
entertainment because the general public are admitted to the entertainment. It
makes no mention of the place at which the entertainment is staged. It certainly
does not impose any requirement that the general public have to be admitted
to such a place before the duty to obtain a licence is triggered. As I have noted,
the Court of Appeal thought that there was no difference between being
admitted to an entertainment and being admitted to the place where it is to be
staged, holding that Admission to an entertainment connotes the idea of
admission to the locality where the entertainment takes place. I respectfully
disagree on this crucial point, but before I seek to develop the argument, the
final aspect of the cumulative definition should be examined.
- 22 -


52. Building upon the first two definitions, the PPEO goes on to define
place of public entertainment as:
so much of any place, building, erection or structure,
whether temporary or permanent,
capable of accommodating the public
and any vessel
in or on which a public entertainment is presented or carried on whether on one
occasion or more.
53. It is at this third stage that the Ordinance turns its attention to the
place at which the public entertainment is presented. Having defined what
amounts to a public entertainment, the PPEO sets out the characteristics of
venues hosting public entertainments which fall within the section 4 duty. Once
more, the definition says nothing about admission to or exclusion from the site.
There is nothing to suggest that someone must exercise the power to admit or
exclude would-be entrants before the venue qualifies as a place of public
entertainment. Nor is there anything to suggest that the site must be cordoned
off or enclosed. A place of public entertainment may, of course, be subject to
regulated admission and may involve a cordoned off or enclosed area, but the
definition does not mention, let alone confine the duty to, sites exhibiting such
features.
54. It is an inclusive definition designed to cater for various different
kinds of venue at which a public entertainment might take place. It may, but
does not have to, consist of or to be located in a building or structure. It is
sufficient if it consists of so much of any place, ... whether temporary or
- 23 -


permanent, capable of accommodating the public ... in or on which a public
entertainment is presented or carried on whether on one occasion or more.
51

55. Accordingly, when applied to a place (as opposed to a building,
erection or structure), it is a definition with the following elements: (i) The
venue must plainly be identifiable as a place an area whose boundaries are
ascertainable by description or depiction on a plan, a map, a chart or otherwise;
(ii) the place in question must be the site where the public entertainment is to be
presented or carried on; and (iii) it must also be a place which is capable of
accommodating members of the public. The venue will therefore generally have
two parts. It will embrace both the part of the site where the entertainment is to
be presented or held, such as a stage used by the performers or presenters; and
that part of the site which accommodates the members of the public in
attendance. The lay-out may of course vary and entertainers may venture into
the audience area while members of the audience may be invited onto the stage,
so that the two parts, while together constituting the place of public
entertainment, are not mutually exclusive. The point to note is that the
definition applies just as comfortably to places to which the general public has
unrestricted access as to enclosed venues where admission is regulated. Its
language furnishes no reason for distinguishing between them.
56. The Court of Appeals reasoning rests crucially on the definition of
public entertainment which distinguishes a public entertainment from an
entertainment by specifying that the former is an entertainment to which the
general public is admitted with or without payment. What the Court of Appeal
has done is to transpose admission to the entertainment to admission to the place
where the entertainment is to be presented, even though the concept of

51
See also section 7(c) which confers power to make regulations to provide for the location of a place of
public entertainment generally or on or in any place, building, erection or structure and the circumstances,
conditions and restrictions in or subject to which such location may be permitted.
- 24 -


admission plays no part in the definition of place of public entertainment.
The Court of Appeal proceeded from there to postulate that the requirement of
admission applied to the place connotes control over entry to that place and
implies an ability to admit some members of the public while excluding others.
It held that this further implies that the locality must be cordoned off or enclosed
to enable such control to be effectively exercised, leading to the conclusion that
without such physical means of segregation, a venue cannot qualify as a place
of public entertainment and no duty to obtain a licence arises. With respect, I
do not think the Court of Appeals gloss on the statute is justified.
57. The definition of a public entertainment is concerned with the
nature of the entertainment in question. It is not about the characteristics of the
site where it is presented. Having begun by defining an entertainment broadly,
the PPEO proceeds to limit its application to an entertainment ... to which the
general public is admitted. That phrase is properly understood as an
entertainment to which the general public have access an entertainment open
to and staged for the enjoyment of the general public. This is in
contradistinction to an entertainment ... to which the general public is not
admitted.
58. The definition of public entertainment therefore aims to draw a
distinction between entertainments accessible to the general public on the one
hand, and private entertainments not so accessible on the other, making the
PPEO applicable only to the former. A band which plays music at a private
wedding party provides entertainment, but not entertainment to which the
general public is admitted. The same applies to the presentation of a film or
musical recital in a private club. To take a further example, a school play or
performance by a school orchestra attended only by the pupils and their parents
are not entertainments to which the general public is admitted. In such cases,
- 25 -


the need to protect the safety and good order of the general public does not arise,
and the statutory purpose of the PPEO is not engaged. Such private premises
may well be subject to separate safety regimes, including, for instance, under the
Clubs (Safety of Premises) Ordinance.
52

59. The definition so understood is straightforward. If the
entertainment is one open to the general public (with or without payment and,
one might add, whether anyone actually shows up to attend the performance), it
qualifies as public entertainment and comes within the licensing regime. This
applies whether or not the venue is cordoned off; whether or not admission to
the site is controlled; and whether or not it comprises a portion of a public street
or open space. This accords with the PPEOs policy of promoting public safety
at entertainments to which the general public is admitted.
G.2 Only entertainments on private property with regulated access
60. In my view, transposing the word admitted from the definition of
public entertainment to the definition of place of public entertainment
(where that word is not found) has a further unwarranted effect: It confines the
operation of the PPEOs safety scheme to entertainments which take place on
private property.
61. This is because, in the Court of Appeals view, such transposition
requires one to postulate that someone must have power to admit or exclude
members of the public to or from the place where the entertainment is to be
staged. That works perfectly well if the place in question is private property, but
where the entertainment is presented in a public street or public open space, the
notion of anyone controlling admission to the place where the entertainment is
to be carried on is something of a contradiction in terms. How can the organizer
or performer lawfully exclude members of the general public from what is, by

52
Cap 376.
- 26 -


definition, a public street or public open space? It follows that the controlled
admission criterion has the effect of restricting the PPEOs application to
entertainments on private property, where admission can be controlled.
62. The Court of Appeal came close to recognizing that this highly
restrictive view of the Ordinance is dictated by its construction, Cheung CJ HC
observing that ... the very idea of admitting involves the possibility of rejecting
admission or excluding people from the entertainment. In the case of a public
street, no member of the general public can be said to be admitted or denied
admission to an entertainment carried on there, or, to the place of entertainment
in question ...
53
However, the Court of Appeal thought that there was still
scope for the PPEO to apply to public entertainments presented in public streets
or spaces because the government might authorize the organiser or performer
to so control admission
54
or because an organizer might exert de facto control
over admission without any prior authority from the government.
55
Mr Pun was
more prepared to accept that confining the Ordinances scope to entertainments
on private property logically followed from his criterion of controlled
admission, but he too sought to argue that the presenter of an entertainment in a
public street or place might become subject to the PPEO if he obtained authority
from the government to control admission. He also submitted that the
Ordinance might apply where someone voluntarily subjected himself to it by
applying for a licence with a view to avoiding possible prosecution for
obstruction of a public place.
63. With respect, I do not think there is any shrinking from the
conclusion that a construction adopting a criterion of controlling admission to

53
Court of Appeal 34. At 40, Cheung CJHC added: In reality, where a public street is involved, unless the
place of entertainment is suitably enclosed or cordoned off, it is difficult to control admission.
54
Ibid.
55
Court of Appeal 35.
- 27 -


the place of the entertainment
56
(which I have called the controlled admission
criterion) excludes the Ordinance from applying to public spaces or to private
spaces to which the public is given unrestricted access. In my opinion, the
instances put forward for suggesting that the PPEO might still have a role to
play regarding entertainments in public places serve merely to highlight the
unsatisfactory nature of that criterion.
64. It is hard to see any logic or realism behind the suggestion that the
criterion of controlled admission might be triggered by applying for government
authority to control admission to the intended public place venue. Applications
for road closures or for cordoning off portions of public places may of course be
made under a variety of Ordinances authorising road works, digging MTR
tunnels, repairing or laying public utilities, and so forth. But what is being
suggested is that an application might be made to authorize control of admission
to a public place for the sole purpose of presenting a public entertainment at that
site. No one has been able to point to any statutory or other legal basis for
granting such authority (except perhaps the PPEO itself).
65. I would be prepared to accept that a notice of no objection under
the POO or a PPEO licence issued pursuant to an application which specifies the
setting up of a stage in a public place may provide lawful authority sufficient to
resist prosecution for obstruction by setting up the stage. But authorization to
close off a portion of a public street or place and for the organizers to admit or
exclude members of the public is an entirely different matter.
66. The logic is in any event hard to follow. The suggestion seems to
be that there might first be an application to give the applicant control over
admission into some portion of a public place and, if successful, that the
applicant would thereupon become subject to a duty under the PPEO (since the

56
Whether or not with the help of cordoning off or enclosing the site.
- 28 -


criterion of controlled admission would be applicable by virtue of the prior
permission granted) to make an application all over again to present the
proposed public entertainment. It is hard to see how the hypothetical initial
application could have proceeded unless the purpose of segregating part of the
public place had been explained and accepted, which makes that application
hard to distinguish from an application made under the PPEO.
67. If what is being suggested is that the application for authority to
segregate a portion of the public place does indeed proceed on the basis of a
licence granted under the PPEO itself, then the authority to control admission is
the outcome of a successful application and not the criterion for deciding
whether the application has to be made in the first place.
68. Similar difficulties exist in relation to the Court of Appeals de
facto instance,
57
involving someone who, without any authority from the
government to do so, encloses or cordons off an area in a public street, and
presents the entertainment within the enclosure, controlling admission to the
scene. Since this would satisfy the criterion of controlled admission, it is
apparently suggested that the emergence of this situation could trigger a duty to
obtain a licence.
69. With respect, it is a revealingly unrealistic argument. Since it is
postulated that the organizer is already presenting the entertainment in the
controlled enclosure without having made any licensing scheme application,
why should anyone think that he would consider himself bound at that stage to
make a PPEO application? What would he be applying to be licenced to do?
The scheme aims to vet and then license entertainments proposed for the future.
The de facto instance turns the statutory scheme on its head. It proposes a

57
Court of Appeal 35.
- 29 -


licence application to be made after the organizer has already gone ahead
without being licensed.
70. In reality, if the organizer took it upon himself to close off a part of
a public street or square and then to regulate entry by members of the public, he
would rapidly find himself arrested for obstruction of a public place and find his
enclosure dismantled.
71. Another point which emerges from this discussion is that the
licensing requirement benefits the organizers of a public entertainment in a
public street because a licence provides lawful authority for what might
otherwise amount to an unlawful obstruction if a stage or other structures are to
be set up. This has led to Mr Puns curious suggestion that while not bound to
obtain a PPEO licence, organizers of an entertainment in a public place may
voluntarily opt in to the licensing scheme in order to benefit from the
authorizations the licence confers. He submits that the licence somehow
transforms the nature of the place during its subsistence. It is hard to see how
if, as a matter of construction, the licensing scheme is inapplicable to such
entertainments, the licensing authority has power to issue licences to those who
volunteer to apply.
G.3 An unnatural construction?
72. The argument against the construction which I have put forward
reflects the Court of Appeals approach, namely, that Admission to an
entertainment connotes the idea of admission to the locality where the
entertainment takes place. On that basis, it was suggested at the hearing that
confining the use of admitted to the definition of public entertainment is
somewhat unnatural, admission being more appropriately used in connection
with admission to a locality, with the concomitant of a power of exclusion. It
- 30 -


was argued that this was supported by the Chinese text,
58
especially the words
.
73. Leaving aside the Chinese text for the moment, the argument raised
against the construction I have proposed involves two principal propositions
with which I take issue.
74. First, it involves the proposition that in defining public
entertainment as ... any entertainment ... to which the general public is
admitted with or without payment, the definition necessarily imports as a
concomitant, the power to regulate and refuse admission.
75. I am unable to agree. I do not accept that where one refers to a
place to which persons are admitted, one thereby necessarily implies the
existence of a means of regulating admission and granting entry to some, while
turning others away. Thus, to state: This is a park to which the general public
is admitted, does not imply that those who wish to enjoy a walk or a picnic in
the park have to go through any process of admission involving possible refusal
of entry. The statement merely indicates that the park is accessible to or open to
the general public. There may be many points from which they may gain access
without anyone regulating admission. Of course, having entered the park there
may be rules of conduct to be observed, whether municipal by-laws, or if the
property is private, rules stipulated by the owner. But that is not inconsistent
with unrestricted admission.
76. Secondly, the argument involves the proposition that the phrase to
which the general public is admitted is naturally to be understood as referring
to a place that admission is naturally tied to a locality so that one should

58
The Chinese definition of public entertainment ( ) being
.
- 31 -


transpose the concept of admission found in the definition of public
entertainment to the definition of place of public entertainment.
77. I cannot accept that suggestion. As a matter of language, to say that
X is something or some place to which the general public is admitted means
that it is something or some place open to or accessible to the general public.
While that expression might most commonly be used in relation to a locality, it
is by no means confined to such usage.
78. Thus, one may say of a club that it has membership to which
women are admitted. That obviously means that membership of the club is
open to women. Of course, if a woman is admitted to membership, she would
naturally be entitled to use the clubs premises, but it is important not to elide
admission to membership with admission to such premises. They are quite
distinct matters. Thus, if one says of a club that it has membership to which
women are not admitted, it by no means follows that women are not admitted
to the clubs premises (as guests or otherwise).
79. Again, one might say: The Hong Kong Bar is a bar to which
foreign lawyers with suitable professional qualifications are admitted. Again, it
has the meaning of the local bar being accessible to or open to qualified foreign
lawyers. It does not connote admission to any locality.
80. To take another example, one might say: The status of Hong Kong
permanent resident is a status to which persons satisfying the requirements of
Article 24 of the Basic Law are admitted. That is a statement about eligibility
for a status, not admission to any locality.
81. There is accordingly, in my view, no justification for regarding the
concept admitted in the definition of public entertainment as having to be
read as tied to the place where the entertainment is staged rather than simply as
- 32 -


identifying the types of entertainment (those to which the general public is
admitted) brought within the PPEO.
82. I accept, as did Mr J ohnny Mok SC,
59
that the Chinese text of the
definition of public entertainment, especially use of the expression ,
carries a connotation of locality which, for the reasons I have given, does not
exist in the English text. It follows that, on my construction, a difference exists
between the two authentic texts which requires resolution in accordance with
section 10B of the Interpretation and General Clauses Ordinance
60
which
provides:
(1) The English language text and the Chinese language text of an Ordinance shall
be equally authentic, and the Ordinance shall be construed accordingly.
(2) The provisions of an Ordinance are presumed to have the same meaning in
each authentic text.
(3) Where a comparison of the authentic texts of an Ordinance discloses a
difference of meaning which the rules of statutory interpretation ordinarily
applicable do not resolve, the meaning which best reconciles the texts, having
regard to the object and purposes of the Ordinance, shall be adopted.
83. With this in mind, I turn now to consider the object and purposes of
the PPEO.
G.4 The purpose of the PPEO and PPER
84. It is undoubtedly true, as Cheung CJ HC pointed out, that the
purpose of the Ordinance and Regulations is to provide a means of effectively
ensuring public safety and order, and to protect the participants to entertainment
from the hazard and dangers associated with the gathering of crowds at places of
public entertainment.
61


59
Appearing with Mr Abraham Chan for the Commissioner.
60
Cap 1.
61
Court of Appeal 22, quoting from the Affidavit of Tse Wing Yee, Winnie, Principal Assistant Secretary for
Home Affairs dated 6 March 2012, 31.
- 33 -


85. Thus, the PPEO empowers the Secretary for Home Affairs to make
regulations to provide for measures against overcrowding, for the control and
prevention of fires, the maintenance of sanitary conditions and the maintenance
of peace and good order in a place of public entertainment.
62
It also authorizes
regulations to be made regarding :
...the location of a place of public entertainment generally or on or in any place,
building, erection or structure and the circumstances, conditions and restrictions in or
subject to which such location may be permitted.
63

Moreover, regulations may provide for the construction materials used, the
venues layout and matters such as the electrical wiring and lighting
arrangements for any stage erected.
64
Detailed regulations have correspondingly
been made in the PPER.
86. To be more precise, the purpose of the legislation is to promote
public safety by means of a detailed precautionary licensing scheme aimed at
anticipating potential dangers and putting preventative measures in place before
the event occurs.
87. Thus, the statutory scheme requires an application for any proposed
use of a place of public entertainment to be made not less than 42 days
65
before
the start of the entertainment.
66
This is to allow potentially interested
government departments to be consulted. Unless the application is refused
outright, the PPER require the licensing authority to forward a copy to the
Commissioner of Police, the Director of Fire Services, the Director of Housing
or the Building Authority, the Director Marine and the Director of Electrical and

62
PPEO section 7(e) and (f).
63
PPEO section 7(c).
64
PPEO section 7(d).
65
Or such lesser period as the licensing authority may allow.
66
PPER regulation 162(1).
- 34 -


Mechanical Services as appropriate.
67
There is also power given to officers of
appropriate departments to enter and inspect the proposed venue.
68

88. If there is no objection from the departments circulated, the
applicant is required, not less than 28 days before commencement of the
entertainment,
69
to supply a detailed plan of the place to which the application
relates,
70
showing:
(i) each part of the place intended to be used for holding entertainment;
(ii) each part of the place intended to be used for seating or otherwise
accommodating an audience (if any);
(iii) each existing and any proposed exit route from the place;
(iv) the position or location in the place of any existing or proposed
permanent structure;
(v) each part of the place in which it is intended that temporary barriers
may be erected or otherwise provided;
(vi) the proposed or actual location in the place of all sanitary fitments;
(vii) the proposed or actual location in the place of fire service installations
and equipment;
(viii) all or, as may be appropriate, any 1 or 2 of the following means by
which ventilation of the place, or any part thereof, is provided, namely,
windows, ducts or any mechanical means;
(ix) the proposed or actual location in the place of all laser equipment (if
any); and ...
(c) in the case of a temporary structure, diagrams sufficient to illustrate the
proposed method of construction and the spacing and scantling of structural
members.
89. Having obtained the details, the licensing authority has a general
power to issue a licence in suitable terms, specifying conditions designed for the

67
PPER regulation 162(2).
68
PPER regulation 169; made pursuant to PPEO section 7(g).
69
Or such lesser period as the licensing authority may allow.
70
PPER regulation 162(3).
- 35 -


location and for the type of entertainment in question.
71
Non-compliance with
any such conditions is made an offence.
72

90. A purposive construction of the PPEO definitions to decide whether
a duty to obtain a licence arises must have regard to the licensing scheme as a
whole. It must recognize that the licensing requirement is imposed to enable a
risk assessment to be made in advance of the proposed event by government
departments possessed of expertise and experience relevant to the venue and
type of entertainment proposed. It is designed to ensure that there is enough
time for site inspections by relevant departments if necessary, for proper
consideration of detailed layout and structural plans, as well as the proposed
programme of entertainment. It is a scheme designed to enable the licensing
authority to lay down conditions concerning matters including crowd control,
fire safety and sanitary facilities to suit the particular place and type of
entertainment in question. It also allows for adequate manpower arrangements
to be made for there to be a suitable Police, Fire Services and first aid
personnel
73
presence. If the entertainment is likely to attract a large audience,
the scheme also allows precautionary traffic and other arrangements to be made,
facilitating the orderly arrival and dispersal of the crowds in the vicinity of the
place of public entertainment.
91. The construction urged by the respondent and adopted by the Court
of Appeal has, in my view, too narrow a focus. It concentrates on the point of
access to the site on whether members of the public need to gain admission to
the place where the entertainment is to take place. In doing so, it gives no
weight to what is central to the legislative scheme, namely, the enabling of
proper safety assessments to be made and precautionary measures to be put in

71
PPEO section 10(1).
72
PPER regulation 171.
73
As envisaged by PPEO section 10(2)(e).
- 36 -


place in advance. Those are matters which must be addressed well before one
gets to the point of considering how access is gained to the entertainment venue.
The narrow focus does not in truth take the legislations purpose into account.
92. Secondly, it appears, with respect, that the Court of Appeal has
misapprehended the way the legislative scheme is designed to function. Cheung
CJ HC sought to support the controlled enclosure criterion for excluding the
licensing scheme in the following terms:
This interpretation makes good sense in the light of the context and purpose of the
legislation. As mentioned, the undisputed purpose of the legislation and the licensing
regime that it sets up is to deal with crowd control and general safety. It therefore
makes sense to require an organiser or performer, who has sufficient control over the
place of entertainment as to enable him or her to control admission, to satisfy various
licensing requirements designed to ensure adequate crowd control and general safety.
Contrast that with an organiser or performer who does not have that degree of control
over the place of entertainment, so much so that he or she is not even in a position to
control admission. In that sort of situation, it would serve little purpose to require
such a person to obtain a licence and fulfil licensing requirements which are geared
towards crowd control and general safety when, by definition, that person simply does
not have control over the place of entertainment, or put another way, the power to
control the place of entertainment lies with someone else in the case of a public
street, the Government.
74

His Lordship added:
One must also consider matters from the point of view of a licensee. After all, the
Ordinance and regulations impose licensing requirements. Granted that these
requirements are designed for crowd control and general safety, they are only as good
as the licensees ability to comply with them. They are premised on the licensees
ability to control the place of entertainment and access to it. These requirements lose
their meaning if the organiser or performer does not even have the ability to control
admission.
75

93. In my view, there are three flaws in this reasoning. The first is to
adopt the point of view of a licensee. To argue from that perspective is to pre-
suppose that a licence has been already been granted. But the purpose of the
scheme is to require the would-be presenter of a public entertainment to apply

74
Court of Appeal 37.
75
Court of Appeal 39.
- 37 -


for a licence, setting in train the assessment process described above. If the
location is unsuitable or if, upon his application being circulated, a responsible
department objects for a legitimate reason, the purpose of the Ordinance is
served by refusal of a licence. Even if a licence is not refused, the legislative
purpose is served by enabling a proper risk assessment to be conducted and
permitting suitable conditions to be imposed in advance of the performance.
94. The second flaw involves the unwarranted assumption that a
licensee who has power to control admission will have the ability to comply
with any licensing conditions imposed and that the converse is true of a licensee
who does not have such power. The fact that an organizer is able to man the
entrance to the venue, charging admission or collecting tickets tells one nothing
about that persons ability or resources to ensure compliance with safety
requirements within. Conversely, the organizer of a free event to which
members of the general public are given unrestricted access may be perfectly
well-equipped and well-prepared to comply with whatever licensing conditions
might have been imposed, such as conditions regarding the number of marshals
to provide, the availability of fire safety equipment, the layout and structural
soundness of a stage, and so forth, matters which do not depend on whether
admission to the site is regulated.
95. The third flaw is to assume that the efficacy of the PPEO depends
entirely on the ability of the licensee personally to comply with conditions
imposed. But the legislative scheme also enables precautionary safety measures
to be put in place by the Police, Fire Services, first aid personnel and other
agencies concerned with public safety when they receive prior warning and are
able to plan for the event.
96. Mr Pun sought to argue that confining the PPEOs operation to
public entertainments on private property was justifiable because the Police need
- 38 -


powers to enter such premises whereas there is no such need in relation to public
entertainments in public places where sufficient powers can be exercised under
other applicable Ordinances such as the POO. I do not accept that argument.
For the reasons set out in Section H of this judgment, the POO and the other
Ordinances there considered provide no substitute for the PPEOs precautionary
safety regime. I do not accept that there is no need for such safety precautions
in public places.
97. Since the unambiguous object and purpose of the PPEO is to
promote public safety by means of a detailed precautionary licensing scheme, in
so far as a difference has emerged between the English and Chinese texts in the
definitions of public entertainment and place of public entertainment which
the rules of statutory interpretation ordinarily applicable do not resolve, the
meaning which in my opinion best reconciles the texts, having regard to the
aforesaid object and purpose is the construction based on the English text. It is
the construction demanded by section 10B of the Interpretation and General
Clauses Ordinance since it avoids placing restrictions (based on unjustifiable
criteria of controlled admission, physical enclosure and private property) on the
scope of the duty to obtain a licence and so avoids disabling government
authorities from effectively carrying out their duty of anticipating and
preventing potential danger to the public in connection with the staging of public
entertainments.
G.5 The history of the legislation
98. There is, in my view, little need to go into the history of the
legislation, but as it has been referred to in both Courts below and in the parties
submissions, I should touch on it briefly.
(a) The PPEO has its origins in the Places of Public Entertainment
Regulations Ordinance 1919, in which, as with the current
- 39 -


Ordinance, Entertainment was defined by reference to a list of
activities while Public entertainment was given the definition
which has remained unchanged to this day.
76
There was no
definition of place of public entertainment.
(b) In 1951, the Ordinance was amended and a definition of place of
public entertainment was introduced which included any place on
which a structure or building stood or other place as falling
within that concept.
77
It therefore operated on the basis that any
place might serve as a place of public entertainment. According to
the objects and reasons published in the Gazette, this had the
effect of widening considerably the places and forms of
entertainment subject to the control imposed by the Ordinance.
78

(c) In 1970, the definition was narrowed, the Attorney General
indicating in Legislative Council that it was considered unnecessary
that the definition of place of public entertainment should
include a place on which there is no structure capable of
accommodating the public, for example, a field which is set aside
for a gymkhana.
79
This resulted in a place of public
entertainment being defined as:
(a) any place on which there is any building, erection or structure,
whether temporary or permanent, capable of accommodating the public;
and
(b) any vessel,
in or on which a public entertainment is presented or carried on
whether on one occasion or more.

76
Public Entertainment means any entertainment, as above defined, to which the general public are
admitted with or without payment for admission.
77
Place of public entertainment means any place on which there is any erection or structure, any premises
or building whether temporary or permanent or any water-borne craft or other place in or at which a public
entertainment takes place whether on one occasion or more... (Italics supplied)
78
Judgment 9.
79
Judgment 11.
- 40 -


(d) There was then a reversion to the previous policy when the
definition was further amended in 1980. No longer did a place of
public entertainment have to involve a building, erection or
structure in which the public were accommodated. The definition
which continues to apply today relevantly reads:
place of public entertainment means (a) so much of any place,
building, erection or structure, whether temporary or permanent,
capable of accommodating the public ...
80

99. Cheung CJ HC correctly records that the speeches in Legislative
Council debating the 1980 amendment show that it was desired to cater for the
emergence of small cinemas occupying part of larger premises such as a
shopping mall.
81
His Lordship did not, however, address the fact that the
definition had reverted to the wider definition applying to any place
previously applicable.
100. It suffices to say that there is nothing in the legislative history to
support the argument that a place of public entertainment has to meet the
criterion of controlled admission, much less to consist of a controlled enclosure.
Even the narrowing of the definition in 1970 (reversed in 1980) does not help
the respondents case. It has never been his argument that a place of public
entertainment must be a place on which there is any building, erection or
structure, whether temporary or permanent, capable of accommodating the
public. The respondent accepts (the Court of Appeal held correctly
82
) that a
place of public entertainment can consist of an open space area, subject to his
proviso that it meets the criterion of controlled admission.
G.6 Certain particular arguments

80
Judgment 14.
81
Court of Appeal 25.
82
Court of Appeal 26.
- 41 -


101. I turn next to some particular arguments advanced in favour of the
controlled enclosure or controlled admission construction. Such arguments,
must be viewed recognizing that the PPEO and PPER cater for many different
types of entertainment, including those which are free and those where
admission is charged, taking place in all sorts of venues.
102. Included amongst the situations covered by the PPEO are (as I have
accepted) entertainments to which the general public is admitted held in private
buildings or enclosed spaces where the organizer controls entry, both to the
entertainment and to the venue. But, as I have been at pains to emphasise, the
PPEO does not confine itself to such situations. It follows that where arguments
are advanced relying on judicial decisions or statutory provisions which are only
concerned with controlled admission to venues, it should be recognized that
such arguments do not address or invalidate the construction regarding areas of
unrestricted access.
G.6a Scott v Cawsey
103. This applies to the Court of Appeals reliance on the High Court of
Australias decision in Scott v Cawsey.
83
The first thing to note about that case is
that it was concerned with liability under section 1 of the Sunday Observance
Act, 1780
84
which arose if any house, room, or other place was opened or
used for public entertainment or amusement, or for publicly debating on any
subject whatsoever on a Sunday, and to which persons [were] admitted by the
payment of money, or by tickets sold for money, such a place being deemed a
disorderly house or place.
85
As Griffith CJ explained: ...what is made

83
(1907) 5 CLR 132.
84
An Imperial statute applicable to the State of Victoria: per Higgins J at 166.
85
At 137.
- 42 -


unlawful is opening or using for the specified purposes a house, room, or place
to which persons are admitted on payment.
86

104. It follows that Sunday Observance cases, involving persons who
charge for admission to entertainments, generally involve controlled admission
to places which are cordoned off or enclosed. They do not address or concern
free public entertainments at sites with unrestricted access.
105. Scott v Cawsey was such a case. The twist which gave rise to an
appeal all the way to the High Court was that payment was required for
admission to only part of the venue. The point in issue was whether the Sunday
Observance Act applied where part of a large hall was cordoned off with
admission being charged for entry into the cordoned off area (referred to as the
reserve) where comfortable seating was provided, while entry to the hall itself
was free.
87

106. The owner of the hall successfully argued that since admission to
the hall was free, the Act had not been infringed. It was the hall which
constituted the house, room, or other place to which persons were admitted
gratis and not for the payment of money or by tickets sold for money. The
cordoned off reserve was not regarded as the relevant house, room or other
place. Griffith CJ regarded the fee charged as a charge for special comfort
afforded to persons present at an entertainment to which admission is free.
88

107. It was in that context, referring to the large hall, that Griffith CJ
said:

86
At 138.
87
At 138-139.
88
At 142.
- 43 -


The term admission, however, involves the idea of locality, and of the ability of the
person who permits the admission to exclude others from the place of entertainment or
amusement except with his consent.
89

108. Since it was a case where the entertainment was presented in a
building into which the owner admitted members of the public, it is not
surprising that his power of admission was held to carry with it a power to
exclude others. It provides no basis for the Court of Appeals gloss on the
PPEO.
109. The long title of the 1780 Act states that it is An Act for
preventing certain Abuses and Profanations on the Lords Day called Sunday.
Its aim was to encourage adherence to the Christian Sabbath as a day of rest and
religious observance. As appears from reading section 1 as a whole,
90
its focus
was not on any precautionary measures, but on the fact that the place was
opened or used on a Sunday, penalising, after the event,
91
the deemed keeper
of the disorderly house and persons who managed or conducted the
entertainment or acted as master of ceremonies, or as moderator, etc, of any
public debate. That its focus was on admission for payment is clear from the
sections penalising every doorkeeper, servant or other person who shall collect
or receive money or tickets from persons assembling at such house, room, or

89
At 138.
90
From and after the passing of this present Act any house, room or other place which shall be opened or
used for publick entertainment or amusement, or for publickly debating on any subject whatsoever, upon
any part of the Lords Day, called Sunday, and to which persons shall be admitted by payment of money or
by tickets sold for money, shall be deemed a disorderly house or place; and the keeper of such house, room
or place shall forfeit the sum of two hundred pounds for every day that such house, room or place shall be
opened or used as aforesaid on the Lords Day, to such person as will sue for the same, and be otherwise
punishable as the law directs in cases of disorderly houses; and the person managing or conducting such
entertainment or amusement on the Lords Day, or acting as master of the ceremonies there, or as moderator,
president or chairman of any such meeting for publick debate on the Lords Day, shall likewise for every
such offence forfeit the sum of one hundred pounds to such person as will sue for the same; and every
doorkeeper, servant or other person who shall collect or receive money or tickets from persons assembling at
such house, room, or place on the Lords Day, or who shall deliver out tickets for admitting persons to such
house, room or place on the Lords Day, shall also forfeit the sum of fifty pounds to such person as will sue
for the same.
91
By a common informers action.
- 44 -


place on the Lords Day. The purposes of the 1780 Act are self-evidently far
removed from those of the PPEO.
G.6b Provisions said to be consistent only with controlled enclosures
110. It was argued that certain provisions in the PPEO and PPER make
sense only in relation to controlled enclosures. Thus, having observed that
licensing requirements designed for crowd control and general safety are only
as good as the licensees ability to comply with them, Cheung CJ HC continued:
They are premised on the licensees ability to control the place of entertainment and
access to it. These requirements lose their meaning if the organiser or performer does
not even have the ability to control admission. Thus, for instance, a licensing
requirement stipulating the maximum number of the audience at an entertainment,
which is no doubt an important requirement in terms of crowd control and general
safety, simply cannot work if the organiser or performer has no ability to control
admission.
92

111. I am unable to accept that argument. In the first place, there is no
universal licensing requirement stipulating the maximum number of the
audience. The provision referred to is section 10(2)(f) which, with the other
paragraphs of section 10(2) lists the sorts of conditions which the licensing
authority may specify.
93
If it serves no purpose in a given case to impose a
condition setting a maximum number for those to be admitted, one would expect
such a condition not to feature in the licence.
112. However, it may, in given circumstances, be sensible for such a
condition to be imposed in relation to a venue with unrestricted access. Section
10(1) gives the licensing authority a discretion as to the precise terms and
conditions imposed. It may make sense, for instance, to grant the licence on
condition that the performance cannot begin or must cease if the attendance by

92
Court of Appeal 39.
93
Section 10 relevantly provides: (1) A licence for the purposes of this Ordinance shall be in such terms as the
licensing authority by which it is granted determines and ... such licence shall be subject to such conditions
(if any) as are specified in the licence. (2) Without affecting the generality of subsection (1), terms or
conditions referred to in that subsection may (f) specify the maximum number of persons which may be
admitted as regards entertainments taking place in the place to which the licence relates ...
- 45 -


those admitted to the entertainment exceeds the stated maximum save with the
consent of the responsible police officer present. Such a condition does not
depend on controlled admission.
113. Another example mentioned by the Court of Appeal is regulation
170B which states:
Where a licence is granted or renewed under these regulations, then for so long as the
licence remains in force, the licensee shall exhibit and keep exhibited at all times the
licence in a conspicuous position at the entrance or, if there is more than one entrance,
the main entrance of the premises to which the licence relates.
114. I quite agree with Cheung CJ HCs comment that:
This regulation is simply not capable of compliance where the place of entertainment
in a public street is not, in one way or another, enclosed or cordoned off, and there is
therefore no entrance to talk of.
94

115. What follows from this? The regulations are enforced by making
non-compliance an offence by the licensee.
95
But where the regulation is
obviously inapplicable on the facts, no one could sensibly suggest that the
licensee has failed to comply and has thereby committed an offence. It does not
justify the criterion of controlled admission.
G.6c Buskers
116. A variant of the foregoing arguments involves the proposition that
the licensing regime cannot have been intended to operate in relation to
entertainments on public streets with unrestricted access since it would
otherwise catch people like buskers, who (it is argued) are obviously not
intended to be targeted by the licensing scheme.

94
Court of Appeal 40.
95
PPER regulation 171.
- 46 -


117. R v Bow Street Magistrates Court ex p McDonald,
96
was cited by
the Court of Appeal
97
in support. That was a case involving a busker who was
accustomed to play his guitar using amplifying equipment on roughly the same
spot in Leicester Square, without any licence. Purporting to act under a warrant
issued by a magistrate pursuant to the London Government Act 1963 (the 1963
Act), the police seized his equipment. Mr McDonald brought judicial review
proceedings, challenging the magistrates decision to issue the warrant,
contending that he did not need a licence to busk. The Court of Appeal reversed
Dyson J
98
and agreed that no licence was needed. To understand the basis of the
Court of Appeals decision, it is necessary to examine the relevant provisions of
the 1963 Act.
118. Schedule 12 paragraph 1 of the 1963 Act laid down the licensing
requirement, stating:
... no premises in a London Borough ... shall be used for any of the following
purposes, that is to say, public dancing or music and any other public entertainment of
the like kind, except under and in accordance with the terms of a licence granted under
this paragraph by [the council of the borough ... ].
Under paragraph 1(7), premises was defined to include any place.
119. Where premises were caught by Schedule 12 paragraph 1, it was an
offence under paragraph 10(1) if:
(a) any person concerned in the organisation or management of that entertainment;
and (b) any other person who, knowing or having reasonable cause to suspect that
such an entertainment would be so provided at those premises (i) allowed the premises
to be used for the provision of that entertainment; or (ii) let the premises, or otherwise
made the premises available, to any person by whom an offence in connection with the
entertainment has been committed ...

96
(1996) 95 LGR 359.
97
Court of Appeal 41-42.
98
Ex p McDonald (unreported, Lexis Transcript CO/2683/93, 14 December 1994).
- 47 -


It may be noted that such premises are envisaged to be under the control of a
person in a position to allow them, or to let them, for use in breach of the
licensing requirement.
120. The power to forfeit Mr McDonalds musical equipment was
conferred by paragraph 12B(1) and conditioned on a person being convicted of
an offence under paragraph 10(1) or (2), the forfeiture power also being linked
to the powers of search and seizure which were subject to challenge by judicial
review. The paragraphs conferring those search and seizure powers are
important. Paragraph 12(2) provided:
A police constable ... may, if authorised in that behalf by a warrant granted by a
justice of the peace, enter any premises in respect of which he has reason to suspect
that an offence under this Schedule is being committed.
And paragraph 12C stated:
A constable ... who enters any premises under the authority of a warrant granted
under sub-paragraph (2) of paragraph 12 of this Schedule may seize and remove any
apparatus or equipment ... found on the premises which he has reasonable cause to
believe may be liable to be forfeited under paragraph 12B of this Schedule.
121. I have emphasised the contents of paragraph 10(1) and italicised the
words involving entry into premises in paragraphs 12(2) and 12C because
they show that the premises intended to be regulated under the 1963 Act were
premises controlled by others which could only be entered by a constable
pursuant to a statutory power authorising the issue of a warrant. It is not
surprising that Leicester Square was held not to constitute such premises even
though premises was defined to include any place. Schiemann LJ
99

explained this as follows:
Schedule 12 is concerned with the control of premises to which the public is invited
for the purposes of public dancing or music and any other public entertainment of the
like kind. It does not forbid all music-making in public places. ... They envisage a

99
With whom Sir Ralph Gibson and Nourse LJ agreed.
- 48 -


situation in which someone other than the council has the power to regulate the
activities of the public in that place and where it is in the public interest that the
council assume some power of entry and supervision which otherwise it would not
have. The Schedule is not designed to deal with situations where what is going on is
going on in a street to which every music-maker or other member of the public has
access. ... The wholly artificial way in which the council tried to use the powers in
paragraph 12(2) to secure a warrant to obtain a right of entry to Leicester Square (a
place in their ownership, and to enter which they had no need of any warrant) makes
the point.
100

122. As I have endeavoured to show, there is no similar wording in the
PPEO or the PPER capable of supporting the view that the licensing
requirements with which we are concerned are intended only apply to premises
under private control and not to public squares or streets. The position of
buskers in Hong Kong therefore cannot be approached along the lines of ex p
McDonald. What then of the criticism that it would be absurd to apply the
PPEO and PPER to buskers in Hong Kong?
123. This case is not about buskers and it is not necessary to decide
whether the PPEO applies to them. However, I will say that I am inclined to
accept that it would be unnecessary and incongruous to apply the full panoply of
powers and duties that apply to entertainments calling for crowd control, and so
forth, to buskers playing on a pedestrian flyover or under-pass. Typically, a
busker does not gather a stationary audience of any size but merely hopes that
well-wishing passers-by will pause long enough to drop some money into his or
her hat or instrument case before going on their way. This is not the kind of
entertainment that calls for a multi-departmental pre-event risk assessment, the
submission of venue plans or the tailoring of licence conditions such as those
envisaged by PPEO section 10 to the buskers activity. Given this view, is there

100
At 365. An additional reason given by his Lordship was that many persons might busk at an attractive spot
in Leicester Square every day and the Act did not envisage several persons being licensed during one day to
operate in one place.
- 49 -


any scope for a purposive construction of the PPEO definitions which would
exclude buskers from the ambit of the Ordinance?
124. There is a reasonable argument that this cannot be done because of
the clear language of the definitions. A busker is clearly engaged in providing
entertainment consisting of musical entertainment.
101
It may be said to be
public entertainment on the basis that it is entertainment to which the general
public is admitted with or without payment, being accessible to all passers-by.
He may furthermore be said to be playing in a place of public entertainment
consisting of the pavement or passage way which is capable of accommodating
the public who hear the music while walking by.
125. But an important additional factor has to be taken into account in
this analysis. Buskers and other street musicians are already subject to a much
simpler licensing requirement under the Summary Offences Ordinance
(SOO).
102
Section 4(15) provides:
Any person who without lawful authority or excuse ... plays any musical instrument
in any public street or road save under and in accordance with the conditions of any
such general or special permit as the Commissioner of Police in his absolute discretion
may issue ... shall be liable to a fine of $500 or to imprisonment for 3 months.
126. I would accept that some regulation of buskers and street musicians
is necessary to prevent public nuisance or undue obstruction in the frequently
over-crowded streets of Hong Kong. However, the permit envisaged by the
SOO seems far more appropriate than a fully-fledged PPEO licence. The permit
issued by the Commissioner does not involve multi-departmental precautionary
assessments but can still be tailored to the place and circumstances in which the
busker is to perform. Given the existence of a duty far more suited for dealing
with buskers, if the position of buskers had to be definitively decided, the

101
Schedule 1 paragraph 1(a).
102
Cap 228.
- 50 -


question would arise as to whether, having subjected buskers to that duty, the
legislature ought properly be taken to have intended that buskers should
additionally be subject to a licensing requirement under the PPEO. A strong
argument plainly exists to support a negative answer. It may very well be
appropriate in such a case to imply words into the PPEO provisions to exempt
from their operation, persons who already hold a permit issued under section
4(15) of the SOO.
127. As Sir Anthony Mason NPJ pointed out in HKSAR v Lam Kwong
Wai,
103
the modern approach is to adopt a purposive construction of statutes
while accepting :
... that the principles of common law interpretation do not allow a court to attribute to
a statutory provision a meaning which the language, understood in the light of its
context and the statutory purpose, is incapable of bearing (R v A (No 2) [2002] 1 AC
45 at pp 67G-68H, per Lord Steyn).
However, as his Lordship went on to state:
A court may, of course, imply words into the statute, so long as the court in doing so,
is giving effect to the legislative intention as ascertained on a proper application of the
interpretative process. What a court cannot do is to read words into a statute in order to
bring about a result which does not accord with the legislative intention properly
ascertained.
128. I think it compellingly arguable that the legislative intention
properly ascertained unambiguously favours a construction whereby the
licensing obligations of buskers are confined to their obtaining a permit under
the SOO. Accordingly, it may well be proper to imply words to that effect into
the PPEO so that section 4 should be read with the italicised words implied:
No person shall keep or use any place of public entertainment without a licence
granted under this Ordinance or under section 4(15) of the Summary Offences
Ordinance.

103
(2006) 9 HKCFAR 574 at 63.
- 51 -


129. The same question of principle can arise whenever there is an
overlap between the licensing requirements of the PPEO and some other
Ordinance in relation to activity which constitutes public entertainment: Is it
the legislative intent that both licences have to be obtained and if not, which is
intended to be the appropriate licence? Without in any way indicating a view as
to a possible outcome, it may be noted that section 4C of the SOO imposes an
obligation to obtain a permit from the Commissioner of Police on persons who
organize or participate in a lion dance, dragon dance or unicorn dance, or any
attendant martial arts display, in a public place unless exempted.
G.6d Small scale public entertainments
130. There may of course be instances of small-scale entertainments
staged in public places with unrestricted access which do not involve pre-
existing duties such as those mentioned above and which may attract the
licensing requirements of the PPEO. One can have some sympathy for those
who complain about kill-joy red tape interfering with enjoyable public
entertainments, but complaints of that nature cannot nullify the essential
statutory purpose of safeguarding public safety and good order in connection
with public entertainments.
131. In any event, the PPEO is not bereft of means to exclude or
minimise the burdens of the licensing regime in appropriate cases. Thus, section
3A confers on the Secretary for Home Affairs power by Order published in the
Gazette to exempt from the operation of PPEO section 4, places of public
entertainment which are of a specified class or description from all or some of
the provisions of the Ordinance or PPER. The Secretary has gazetted an Order
exempting a number of places, including places under the management of the
Leisure and Cultural Services Department or the Home Affairs Department
- 52 -


from the licensing requirement.
104
Such an exemption might be applied, for
instance, to places regularly resorted to by the public where informal, small
scale entertainments may be carried on, since such places are managed, one
assumes, with proper safety measures put in place by the said Departments.
132. The PPEO also provides the licensing authority with discretions to
adjust the level of regulation properly called for. For instance, it may in suitable
cases, accept much shorter periods of notice than the 42 days and 28 days
normally called for under regulations 162(1) and 162(3) respectively. A simple
entertainment posing little risk to public safety can be rapidly approved with the
licensing authority declaring itself satisfied by the materials submitted. The
licence can cover regular events to be held over a stated period. The licensing
authority has power to waive or reduce fees
105
and, where conditions imposed
are found to be inappropriate, power to vary or cancel them.
106

133. But at the end of the day, a degree of inconvenience may have to be
accepted to further the public safety purposes of the PPEO. As Lord Bingham
of Cornhill pointed out:
The drawing of a line inevitably means that hard cases will arise falling on the wrong
side of it, but that should not be held to invalidate the rule if, judged in the round, it is
beneficial.
107

134. Given the almost infinite forms and venues for public
entertainments imaginable, it is not surprising that the PPEOs drafting might in
some circumstances be thought wanting. Adopting one construction, it may
appear to have an over-broad application, imposing the inconvenience of having
to apply for a licence where many might agree that it is unnecessary to operate

104
Places of Public Entertainment (Exemption) Order, Cap 172, para 2.
105
PPER regulation 178.
106
PPEO section 10(3).
107
R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 at
33; cited in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at 71.
- 53 -


the precautionary scheme. But adopting another construction, the PPEO may be
given too narrow a scope, leaving public safety at risk in situations which clearly
call for precautionary planning. The burdens of a licensing scheme are felt more
in the nature of bureaucratic inconvenience than in the imposition of criminal
liability. For my part, I consider it better to adopt a construction which errs on
the side of ensuring public safety.
135. For the foregoing reasons, I respectfully disagree with the Court of
Appeals construction. In my view, places to which the general public have
unrestricted access, including public streets and spaces, are capable of qualifying
as places of public entertainment within the meaning of the PPEO and PPER.
There is, in my judgment, no basis for construing the relevant definitions in
section 2 as confining such places to those which are subject to control over
admission.
H. The constitutional issue
136. On the basis that the PPEO applies to the IDAHO event, the
respondent argues that sections 2 and 4 are unconstitutional because they are
inconsistent with Articles 27
108
and 39
109
of the Basic Law and/or Articles
16(2)
110
and 17
111
of the Hong Kong Bill of Rights. The contention is that the
licensing regime of the PPEO infringes the constitutionally guaranteed freedoms
of expression and assembly, as demonstrated by the interference with the
IDAHO dance performance.

108
Article 27: Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of
association, of assembly, of procession and of demonstration; and the right and freedom to form and join
trade unions, and to strike.
109
Giving constitutional effect to the International Covenant on Civil and Political Rights as implemented by
the Hong Kong Bill of Rights Ordinance (Cap 383).
110
Article 16(2): Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other media of his choice.
111
Article 17: The right of peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in conformity with the law and which are 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.
- 54 -


137. Those freedoms are of course of great importance, but they are not
absolute and laws which impinge on them are valid if they pass the
proportionality test which has often been applied in this jurisdiction.
112
In the
present case, the licensing requirement clearly has a legitimate aim being a
precautionary scheme for the effective protection of public safety and good
order in places of public entertainment.
113
Plainly, the licensing regime which
has been described is rationally connected with achieving that end. Neither of
these points is in dispute.
138. The constitutional objection advanced on the respondents behalf is
that the safety of the public attending entertainment events in a public street is
sufficiently catered for by powers conferred on the Police by such Ordinances as
the POO, the Police Force Ordinance
114
(PFO) and the SOO so that it is
disproportionate to impose additional fetters on the relevant freedoms in the
form of the PPEOs licensing requirements.
139. I have accepted the argument as a matter of construction that
buskers may well be sufficiently regulated by being placed under a SOO duty to
obtain a permit, but cannot accept the respondents argument in reliance on the
POO or PFO. While the regulatory schemes of the POO and PPEO overlap to a
limited degree, the POO has a different purpose, deals with different subject-
matter and operates in a different fashion. It provides no substitute for the well-
developed precautionary licensing regime established by the PPEO.
140. The POO is, as its title suggests, concerned with public order. It
only involves the Commissioner of Police and does not cater for any multi-
departmental pre-event risk assessment in relation to public entertainments. Its

112
Discussed in the context of the freedom of assembly in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229
at 33-38.
113
Falling within the permitted restrictions under BOR Article 17.
114
Cap 232.
- 55 -


main purpose is to regulate public meetings and public processions and not
public entertainments. Such meetings are defined to exclude gatherings
organized exclusively for recreational or cultural purposes
115
so that many
entertainments are likely to fall outside the ambit of public meetings and so will
not be regulated by the POO. Similarly, since most public entertainments will
not involve a public procession
116
the POO provisions on processions will
rarely be applicable. While organizers have to notify the Commissioner of
Police of intended public meetings
117
and public processions,
118
they have to
give no more than a weeks prior notice. The information which must be
provided is limited to the organizers personal details, the purpose and subject-
matter of the meeting, its date, location, time of commencement, duration and an
estimate of the number of people expected to attend.
119
Similar information,
plus the intended route, must be given in relation to an intended public
procession.
120
Such requirements do not compare with the detailed information
as to the entertainment and venue that must be provided by the applicant for a
licence under regulations 162-164 of the PPER.
121

141. Mr Pun was keen to point to the POOs regulation of public
gatherings which are not confined to public meetings and public processions,
but include other meetings, gatherings or assemblies of 10 or more persons in
any public place.
122
However, the treatment that such public gatherings receive
under the POO is very limited. Under section 17, police officers are given
powers to prevent, stop, disperse, etc, such public gatherings but only if they
reasonably believe that they are likely to lead to a breach of the peace. Section 6

115
POO section 2.
116
Defined as any procession in, to or from a public place: section 2.
117
POO sections 7 and 8.
118
POO sections 13 and 13A.
119
POO section 8(4).
120
POO section 13A(4).
121
Set out in Section G.4 above.
122
POO section 2.
- 56 -


gives the Commissioner power to control and direct the conduct of public
gatherings if he reasonably considers it to be necessary in the interests of
national security or public safety, public order or the protection of the rights and
freedoms of others, but this is a reactive power, there being no obligation on the
organizers or participants in public gatherings to give prior notice of their
occurrence.
142. Mr Pun also relied on section 10 of the PFO, but that section
merely lays down a long list of the general duties of the police force. Such
duties include taking lawful measures with a view to preserving the public peace,
preventing and detecting crimes and offences; preventing injury to life and
property, and so on. They are certainly no substitute for the PPEOs
precautionary scheme.
143. Such constraints on the freedoms of expression and assembly as
flow from operation of the PPEO generally do not involve prohibiting the event.
The Ordinance therefore usually involves minimal interference with the
freedoms in question. In the rare case where the location is so unsuitable or the
entertainment so dangerous that the risk cannot be acceptably mitigated by
imposing suitable conditions, refusal of a licence is a proportionate constraint. It
is unthinkable that we should fail to learn the tragic lessons of the Lan Kwai
Fong disaster of 1 J anuary 1993.
123
But even in cases involving such dangers,
the organizers may be able to find a safe alternative venue or suitably to modify
the entertainment so as to obtain a licence subject to tailor-made conditions. In
my view, the requirements imposed by the PPEO are no more than necessary to

123
Where 21 persons died and many were injured from the crush of severe overcrowding in New Years Eve
celebrations in a network of narrow, sloping streets in an entertainment area. See the Final Report of the
Inquiry by Mr Justice Bokhary dated 23 February 1993. As pointed out in the affidavit of Ms Tse Wing Yee
Winnie dated 6 March 2012 (28 and 33), some of the PPEOs 1995 amendments, including the addition of
the present section 10 conferring power to impose conditions, were made to give effect to recommendations
made by that Inquiry.
- 57 -


secure public safety and good order in places of public entertainment. It is a
legitimate, rational and proportionate measure which is compatible with the
constitutional guarantees.
144. In the present case, the organizers of the IDAHO event were
advised by the Police to apply for a PPEO licence. The Police were right to do
so. The proposal involved putting up a stage and various smaller structures
publicising the IDAHO event and a dance performance on a Sunday afternoon in
a crowded pedestrian precinct. The organizers initially did submit a PPEO
application but then chose to withdraw it while it was being considered by the
licensing authority and interested departments. It may be that the organizers
were wrongly advised since they did so on the footing that there would be no
entertainment involved, a position which is now no longer maintained. The
Police had already served a Notice of No Objection under the POO and had
indicated, in response to the PPEO application that they had no objection
provided specified conditions were met. There is every reason to think that if
the organizers had persisted in their application, a licence would have been
granted in good time before the IDAHO event and there would have been no
interference with the dance performance. Only the organizers knew what they
had planned by way of public entertainment and it was not too burdensome to
require them to provide relevant advance information to the licensing authority
in furtherance of public safety.
145. For the foregoing reasons, I would allow the appeal, set aside the
Court of Appeals orders and restore the order of Lam J dismissing the
application for judicial review.
- 58 -


Mr Justice Tang PJ:
146. I have had the advantage of reading the judgments of Fok PJ and
Lord Neuberger of Abbotsbury in draft, I respectfully agree, for the reasons
given by them, that the appeal should be dismissed. Since, I disagree with the
Chief J ustice and Ribeiro PJ , I will add a few words of my own.
147. These proceedings concern the construction of s 4 of the Places of
Public Entertainment Ordinance (PPEO), under which no person shall keep or
use any place of public entertainment without a licence under PPEO.
148. The Court is divided over the true construction of the definitions of
public entertainment and place of public entertainment in PPEO.
149. The definition of entertainment is wide and includes any event,
activity or other thing specified in Schedule 1. Dancing is specified in
Schedule 1, and I shall proceed on the basis, but do not decide, that the dancing
in this case, said to be an Artistic and Dancing Expression to promote a message
against discrimination, was entertainment within the meaning of PPEO.
150. Public entertainment as defined means any entertainment within
the meaning of this Ordinance to which the general public is admitted with or
without payment.
151. Place of public entertainment means so much of any place,
building, erection or structure, whether temporary or permanent, capable of
accommodating the public; and any vessel, in or on which a public
entertainment is presented or carried on whether on one occasion or more.
152. What is public entertainment is important because it is the
presenting or the carrying on of public entertainment in or at a place which
makes it a place of public entertainment. A place in or at which non-public
- 59 -


(private) entertainment is presented or carried on does not require a licence
under PPEO.
153. What distinguishes private entertainment from public entertainment
is the admission of the general public. When entertainment to which the general
public is admitted is presented or carried on in or at a place, a licence for the
place (not for the entertainment), under PPEO is required, and it is an offence to
keep or use that place without a licence. What, then, is the place, the keeping or
using of which without a licence is an offence? The definition of place of
public entertainment provides the answer, namely, a place which is capable of
accommodating the public, and the public being those who have been admitted
to the entertainment, being presented or carried on there.
154. The essence of Mr Moks submission is that the general public is
admitted to an entertainment if they are exposed to it, for example, they could
hear or see the entertainment. He accepts that if he is right, a busker would
require a PPEO licence. According to Mr Mok, a busker, an exhibitor of
sculptures or pictures by performing or exhibiting in public, admits the general
public to the entertainment.
124

155. With respect, I agree with Fok PJ , for the reason given by him, that:
262 the word admitted is to be construed in an active sense and as
requiring that, for a place to be a place of public entertainment, the person
presenting or carrying on the (public) entertainment must be able to control
admission to the place where the entertainment is being presented or carried
on.

124
In HKSAR v Li Yiu-kee (ESS 43427/2010, unreported), in the run-up to 4 June 2010, 2 sculptures, the
Goddess of Democracy and a statue commemorating 4 June 1989 were placed at the Times Square. They were
seized by the police and the person responsible prosecuted under PPEO, because the exhibition of sculptures
came within the definition of entertainment and there was no licence under PPEO. The person was convicted
and fined $2000. The hearing of his appeal has been held over to await our decision. We are not here
concerned with that appeal and I express no view on the correctness or otherwise of that decision, but it
illustrates the implication of Mr Moks submission.

- 60 -


156. In my opinion, in context, that is the ordinary and natural meaning
of admitted.
157. It follows that I also respectfully agree with the Chief J udge, who
said, with the concurrence of Stock VP and Barma J A :
35 the very idea of the general public being admitted to an
entertainment, or the place of entertainment, involves the ability on the part
of the organiser or performer of the entertainment to control admission by
admitting or excluding people, whether on terms (such as the sale of tickets)
or unconditionally.
158. If admitted is given its ordinary and natural meaning, the PPEO
would cover all obvious places for control under the PPEO, for example,
entertainment in private premises such as cinemas and dance halls, and other
premises, such as football stadiums, where admission of the general public is
controlled. Mr Moks complaint is that, giving admitted its ordinary and
natural meaning would not cover the present case, or, for example, annual
count-downs where large crowds may gather, although the same safety concerns
are involved. That is why we should construe admitted purposively to cover
these other situations. Mr Mok submits that the fact that buskers will also be
covered should not concern us. Buskers are already covered by s 4(15) of the
Summary Offences Ordinance (SOO). I suspect, s 4(15) is more honoured in
the breach than in the observance and that, sensibly, the police does not
prosecute every busker. More to the point, I seriously doubt whether the
legislature would ever have knowingly brought buskers within the ambit of the
PPEO. Ribeiro PJ regards the inclusion of buskers under the PPEO
incongruous.
125
His lordship said it may be appropriate to imply words into
the PPEO provisions to exempt buskers, who already hold a permit issued under
s 4(15) from the SOO.
126
Like Lord Neuberger
127
, I do not believe that is an

125
Para 123.
126
Para 126.
- 61 -


acceptable solution. Buskers would be included if Mr Mok is right. I regard the
inclusion of buskers under Mr Moks construction, another reason why it must
be rejected.
159. The PPEO does not apply to private entertainment, although the
same safety concern may be present. The legislature have chosen to cover only
public entertainment. They drew the line at the admission of the general public
with or without payment and not at the possible safety concern of an
entertainment. The definition uses simple words, and has been in place since
1919. I do not believe the word admitted has ever been understood otherwise
than in its ordinary and natural sense. As Fok PJ s historical survey of the
PPEO shows, for many years, (1908 to 1951 and 1970 to 1980) places of public
entertainment were confined to a structure of some sort
128
and the ordinary and
natural meaning of admitted was entirely adequate for the purpose of the
PPEO. The legislature had no reason to wish for any wider meaning. However,
between 1951 and 1970, and since 1980, a place of public entertainment was not
confined to a structure. But, the definition of public entertainment was not
amended. I cannot accept that the legislature would have left the definition
unamended if they had intended any change to the ordinary and natural meaning
of admitted.
160. Mr Mok also asks us to distinguish between admission to the
entertainment and admission to the place of entertainment. If admitted has the
meaning ascribed to it by Mr Mok, I doubt if the distinction adds anything. If
admitted has the meaning I prefer, the distinction would not help him.
161. Does the distinction mean that if the general public is admitted to
the entertainment it does not matter that it was not admitted to the place of

127
Para 298.
128
Para 229.
- 62 -


public entertainment? Suppose, an operator of a commercial drive-in cinema
(who has a PPEO licence for his cinema), shows a silent film, and the movie
was watched by the general public from outside the drive-in cinema. On the
appellants case, the general public had been admitted to the entertainment.
Would the fact that the operator has a licence for the drive-in cinema suffice? If
so, is that because, the place at which the non-paying public saw the movie was
not a place of public entertainment and no licence was required for that area? If
that is right, why should it matter the general public had watched the movie
from outside? If not, is it because, the place where the public saw the movie
was itself a place of public entertainment and a PPEO licence was required for
that area. If that is right, since the access to the entertainment by the public
rendered the place at which they accessed the entertainment, a place of public
entertainment, what is the relevance of the distinction?
162. I also believe Mr Mok has exaggerated the public safety concern in
this case. Here, although there was no PPEO licence, the requirements for a
public meeting or procession under the Public Order Ordinance (POO) were
met. The Commissioner of Police did not object to the meeting or procession on
public safety grounds. The facts of the present case provide a useful illustration
of the dangerous implication of Mr Moks submission.
163. The evidence of Robit Bhagat, Assistant Divisional Commander
(Administration) Wanchai Police Division, showed that, after WSIP Chan
noticed a number of performers dancing on the stage and in the area before the
stage, she warned the person in charge that since there was no PPEO licence
they were liable to prosecution. As a result, the dancing stopped, and the event
continued with speeches. There is no reason to think that the level of danger to
public safety was greater because of the dancing. Moreover, WSIP Chan went
on to say she did not realize that there were story-telling in the speeches. My
- 63 -


impression is that, had she realized that, she would have given another warning
because entertainment as defined includes story-telling, and a licence would be
required.
164. I agree with Fok PJ that since constitutionally protected freedom of
expression may be involved, clear words are required to effect any such
restriction. I would not give the word admitted a purposive construction
which may impact these important rights.
165. Mr Mok provided other examples where public safety may be a
serious concern. He mentioned the Lan Kwai Fong disaster. But, there was a
PPEO licence on the occasion. Mr Mok also mentioned annual count-downs.
Two well known places for such events are the Times Square and under the
Clock Tower in Tsimshatsui. Count-downs per se do not come under the
definition of entertainment. Nor are they likely to be organized. So who could
be required to apply for a licence? Nor is it likely that the authorities would take
no measure for public safety because no PPEO licence was or could be applied
for. It is common sense that the police and other relevant government
departments would do all they can to ensure public safety, on such and similar
events.
166. I turn to the Chinese version of PPEO. The English and Chinese
texts are equally authentic, and presumed to have the same meaning.
129
Mr
Pun for the respondent, relies on the words in the Chinese
definition of public entertainment, in particular, the word . Mr Mok, in his
oral submission, accepted that meant to permit. I am of the opinion that
in the Chinese text, public entertainment is defined as entertainment to which
the general public is permitted to be admitted, with or without payment.

129
s 10B(1) and (2) Interpretation and General Clauses Ordinance Cap 1.
- 64 -


Moreover use of the expression , especially the word , supports the
view that it was concerned with the admission to the place of entertainment and
not merely to the entertainment.
167. I see no difference in meaning between the Chinese and English
texts.
168. For the above reasons, which, I believe, are consistent with the
judgments of Fok PJ and Lord Neuberger, I would dismiss the appeal. That
being the case, it is unnecessary for me to express any view on the constitutional
question.
Mr Justice Fok PJ :
A. Introduction
169. Under the Places of Public Entertainment Ordinance (Cap.172) (the
PPEO), a person who keeps or uses a place of public entertainment must obtain
a licence to do so. The question of principle raised in this appeal is whether and
in what circumstances, on the true construction of the PPEO, an entertainment
which is presented or carried on in a public street or other publicly accessible
open space is one for which the organiser is required to obtain a licence. The
Court of Appeal, differing from the J udge at first instance, held that the
licencing regime did not apply to the use of a pedestrian precinct in Lockhart
Road for a dance performance. The Commissioner of Police (the Commissioner)
appeals, contending that it did.
170. If the Commissioner is correct, then a subsidiary question arises as
to whether the provisions of the PPEO requiring the obtaining of a licence are
- 65 -


inconsistent with the constitutionally protected freedom of public demonstration
and assembly and freedom of expression.
130

B. The facts
171. Save for one matter referred to below, there was no dispute as to
the facts.
172. Various lesbian, gay, bisexual, transgender and intersex (LGBTI)
and human rights organisations (the Organisers) proposed to host a 7
th
annual
International Day Against Homophobia (IDAHO). The purpose of the 7
th

IDAHO was to raise public awareness of anti-discrimination, equal
opportunities and anti-homophobia issues and to provide a platform for the
LGBTI community to express their views and to discuss and share their
experience of these matters. The 7
th
IDAHO was scheduled to be held on
Sunday, 15 May 2011, between 3pm and 5pm on Lockhart Road between East
Point Road and Cannon Street in Causeway Bay. That part of Lockhart Road is
designated as a pedestrian street from 4pm to midnight on Mondays to Fridays
and from noon to midnight on Saturdays, Sundays and public holidays and so
was therefore a pedestrian precinct at the relevant time.
173. Prior to the scheduled day for the 7
th
IDAHO, on 15 March 2011
and again on 15 April 2011, the Organisers submitted a Notification of Intention
to Hold a Public Meeting to the Commissioner of Police. The notification was
given pursuant to section 8 of the Public Order Ordinance (Cap.245) (the POO)
and the application identified the pedestrian precinct as the place of the meeting,
estimated that about 250 persons were expected to attend and stated that there
would be a stage performance. The Organisers also provided a map to the
police on which the position of a stage and an assembly space were

130
Under articles 27 and 39 of the Basic Law, articles 16(2) and 17 of the Hong Kong Bill of Rights and
articles 19 and 21 of the International Covenant on Civil and Political Rights
- 66 -


respectively marked at one end of and along the pedestrian precinct. In due
course, on 11 May 2011, the Commissioner issued a Notice of No Objection
pursuant to section 9(4) of the POO indicating he had no objection to the 7
th

IDAHO being held in the pedestrian precinct, subject to certain conditions.
174. In parallel with this, the Organisers submitted, on 15 March 2011,
an application to the Food and Environmental Hygiene Department for a
Temporary Places of Public Entertainment Licence under the PPEO to use the
pedestrian precinct for the 7
th
IDAHO. The application stated that a temporary
stage would be erected and gave its dimensions as not over 13 feet x 8 feet x 13
feet. However, this application was subsequently withdrawn by the Organisers
on 12 May 2011 who took the view the licence was not necessary. Whether that
view is correct is, of course, the principal issue in this appeal.
175. The 7
th
IDAHO took place on 15 May 2011 as planned. A
rehearsal of a dance performance to be given at the event took place from about
2pm. A police sergeant asked one of the Organisers to produce the temporary
licence under the PPEO for inspection and, when told that the application for
this had been withdrawn, informed her that the activity was in contravention of
the law.
176. An individual, identified by the initial T, who is the respondent to
this appeal, attended the event in the pedestrian precinct at about 3pm. At that
time, there were about 100 participants attending the event, which began with
speeches given by representatives of the Organisers and others. The dance
performance began shortly thereafter at about 3.35pm. For reasons that will
become apparent, it is not necessary to describe the content of this performance
in any detail. It took place on and in the area immediately in front of the stage.
At the time, the 7
th
IDAHO event had drawn about 150 to 200 participants,
including T, and during the dance performance a small crowd of passers-by also
- 67 -


watched, some stopping to do so and others merely slowing down as they
walked along the pedestrian precinct.
177. Shortly after the performance began, a police inspector informed
the Organisers that they required a licence under the PPEO and warned them
that, as they did not have a licence, they were committing a criminal offence and
might be liable to a fine and imprisonment. As a result, at about 3.46pm, the
Organisers stopped the performance. It was originally to have run for about 20
minutes but was cut short by 10 minutes. After the performance was brought to
an end, the 7
th
IDAHO event continued with readings and speeches until about
4.30pm.
C. The litigation below
178. The respondent began judicial review proceedings
131
challenging
the Commissioners decision to halt the dance performance. There was,
however, a dispute between the parties as to whether the dance performance was
halted by the police or by the Organisers themselves in light of the polices view
that a licence under the PPEO was required. As a result, the original relief
sought was amended to seek a declaration (the first declaration) that:
a place of public entertainment, for the purposes of the PPEO, does not
include an open space area (not being enclosed) where a political
demonstration occurs.
179. In the alternative, the respondent sought a declaration that the
provisions of the PPEO, if they applied to the dance performance, were
unconstitutional, being inconsistent with the provisions of articles 27 and 39 of
the Basic Law, articles 16(2) and 17 of the Hong Kong Bill of Rights and
articles 19 and 21 of the International Covenant on Civil and Political Rights.

131
In HCAL 102/2011
- 68 -


180. At first instance, before Lam J (as he then was), the respondent was
unsuccessful.
132
The J udge held that the licencing regime in the PPEO did apply.
He held that the dance performance was an entertainment, that it was also a
public entertainment and that the pedestrian precinct was a place of public
entertainment, as each of those terms is defined in the PPEO. The J udge also
held that the provisions of the PPEO were not unconstitutional in that, although
they restricted the various freedoms relied upon, they satisfied the
proportionality test.
181. On appeal, the Court of Appeal
133
allowed the appeal, differing
from the J udge as to the applicability of the licencing regime. The Court of
Appeal held
134
that, although not entitled to the first declaration, the respondent
was entitled to a declaration in the following terms, namely that:
the use of the pedestrian precinct on Lockhart Road on 15 May 2011 for the
purposes of presenting or carrying on the Artistic and Dancing Expression at
the 7
th
International Day Against Homophobia Demonstration did not require
the grant of a licence for places of public entertainment under the Places of
Public Entertainment Ordinance (Cap.172).
182. Having so held, the respondents entitlement to the alternative
declaration based on the constitutional challenge did not arise for decision and
the Court of Appeal did not deal with, and expressed no views on, this issue.
D. The relevant provisions of the PPEO
183. Before identifying the issues for decision in this appeal, it is helpful
first to set out the relevant provisions of the PPEO.
184. Section 4(1) of the PPEO provides that:
No person shall keep or use any place of public entertainment without a
licence granted under this Ordinance.

132
CFI Judgment dated 16 July 2012
133
Cheung CJHC, Stock VP and Barma JA
134
CACV 244/2012, Reasons for Judgment, 18 September 2003; reported in [2013] 4 HKLRD 384
- 69 -


Contravention of this provision is a criminal offence under section 4(2).
135

185. Section 2 of the PPEO includes definitions of the terms
entertainment, public entertainment and place of public entertainment,
each of which is relevant in the context of this appeal.
186. The definition of entertainment in section 2 is wide and includes
any event, activity or other thing specified in Schedule 1. Schedule 1 provides:
1. The events, activities and other things referred to in the definition of
entertainment in section 2 of this Ordinance are the following or any part of any
of them
(a) a concert, opera, ballet, stage performance or other musical,
dramatic or theatrical entertainment;
(b) a cinematograph or laser projection display;
(c) a circus;
(d) a lecture or story-telling;
(e) an exhibition of any 1 or more of the following, namely, pictures,
photographs, books, manuscripts or other documents or other
things;
(f) a sporting exhibition or contest;
(g) a bazaar;
(h) (Repealed L.N. 120 of 2002)
(i) an amusement ride within the meaning of the Amusement Rides
(Safety) Ordinance (Cap. 449) or any mechanical device (other
than such an amusement ride) which is designed for amusement;
(j) a dance party.
2. In this Schedule stage performance () includes a tragedy,
melodrama, comedy, farce, pantomime, revue, burlesque, burletta, shadow play,
an exhibition of dancing, conjuring or juggling, an acrobatic performance and any
other stage event including an interlude.
3. In this Schedule, dance party () means an event with all of the
following attributes
(a) music or rhythmic sound of any kind or source is provided at the
event;
(b) the primary activity at the event is dancing by the persons
attending the event;
(c) either

135
This provides: Any person who contravenes subsection (1) shall be guilty of an offence and shall be
liable on conviction to a fine at level 4 [i.e. $25,000] and imprisonment for 6 months, and to a further fine of
$2,000 for every day during which the offence has continued.
- 70 -


(i) the number of persons attending the event exceeds 200 on
at least one occasion during the event; or
(ii) any part of the event occurs between 2 a.m. and 6 a.m.
187. A public entertainment is defined as meaning:
any entertainment within the meaning of this Ordinance to which the general
public is admitted with or without payment.
188. Finally, a place of public entertainment is defined as meaning:
(a) so much of any place, building, erection or structure, whether
temporary or permanent, capable of accommodating the public; and
(b) any vessel,
in or on which a public entertainment is presented or carried on whether on one
occasion or more.
E. The issues in this appeal
189. It is not now in issue that the dance performance staged by the
Organisers was an entertainment within the meaning of the PPEO. At first
instance, the J udge rejected the argument advanced on behalf of T that the
performance was not an entertainment as defined because it was not for the
sole or dominant purpose of entertainment but rather was for the purposes of a
political demonstration.
136
That argument was not seriously pursued in the
appeal and the Court of Appeal had no doubt the performance was an
entertainment.
137
In this Court, the respondent expressly does not dispute that
the performance was an entertainment under the PPEO being an exhibition of
dancing.
138

190. The Organisers of the 7
th
IDAHO were plainly using the pedestrian
precinct in Lockhart Road, where the temporary stage was erected and
immediately in front of the stage, for the purposes of presenting or carrying on

136
CFI Judgment 46, 70-77
137
CA Judgment 15
138
Case for the Respondent 10
- 71 -


the dance performance. The question in issue is therefore whether the
Organisers were keeping or using a place of public entertainment within the
meaning of the PPEO, that being the activity for which a licence is required
under section 4. That question in turn depends on whether the dance
performance was a public entertainment and whether the place where it was
presented or carried on was a place of public entertainment. The proper
construction of the terms public entertainment and place of public
entertainment in the PPEO (the construction issue) is therefore the primary
focus of this appeal.
191. If the construction issue is decided against the respondent, the
constitutional issue will need to be addressed.
F. The Construction Issue
192. The ultimate question raised in this appeal is whether the PPEO
licensing regime applied to the use of the pedestrian precinct in Lockhart Road
between East Point Road and Cannon Street for the dance performance put on
during the 7
th
IDAHO. But this involves the broader question of construction of
whether and in what circumstances the PPEO applies to an entertainment
presented or carried on in a public street or other publicly accessible open space.
193. While accepting that the purpose of the PPEO was to provide a
means of effectively ensuring public safety and order and to protect the
participants from the hazards associated with the gathering of crowds at places
of public entertainment, the Court of Appeal held that the reference to admitted
with or without payment in the definition of public entertainment implied or
suggested that the organiser or performer has, or is entitled to exercise, a certain
degree of control as a matter of law, or exerts or purports to exert a certain
degree of control as a matter of fact, over the place in which the public
- 72 -


entertainment is presented or carried on, so as to enable him to admit, or exclude,
members of the public from the entertainment.
139
The Court of Appeal
concluded that:
In reality, where a public street is involved, unless the place of entertainment
is suitably enclosed or cordoned off, it is difficult to control admission.
140

The correctness of that conclusion is central to this appeal.
F.1 The approach to construction
194. The modern approach to statutory construction is not in issue. The
proper starting point is to look at the relevant words or provisions having regard
to their context and purpose: see HKSAR v Lam Kwong Wai (2006) 9 HKCFAR
574 at 63 and Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR
735 at 12. The context of a statutory provision should be taken in its widest
sense and includes the other provisions of the statute and the existing state of the
law: HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at 13. The purpose
of a statutory provision may be gleaned from the provision itself or from a
relevant report of the Law Reform Commission or the Explanatory
Memorandum to the bill or from a statement of a responsible official to the
Legislative Council in respect of the bill: ibid. at 14.
195. Nevertheless, the object of the exercise is to ascertain the legislative
intent of the language of the statute and, in this regard, a court cannot attribute to
a statutory provision a meaning which the language, understood in the light of
its context and statutory purpose, cannot bear: see HKSAR v Lam Kwong Wai at
63 and China Field Ltd v Appeal Tribunal (Buildings) (No.2) (2009) 12
HKCFAR 342 at 36.

139
CA Judgment 28, 34-36
140
CA Judgment 40
- 73 -


196. There are other canons of statutory interpretation that may also be
relevant. It is a principle of statutory interpretation that a person should not be
penalised except under clear law. Therefore, when considering opposing
constructions of a statutory provision, the court presumes the legislature
intended to observe this principle and should strive to avoid adopting a
construction which penalises a person when the legislators intention to do so is
doubtful.
141
Similarly, as part of the principle against doubtful penalisation,
there is a presumption against the imposition of a statutory interference with
freedom of association or of speech without clear words.
142

197. Before addressing the construction of the relevant provisions, it is
helpful to put them in context by reference to the licensing scheme under the
PPEO and the material legislative history of that ordinance.
F.2 The licensing scheme under the PPEO
198. The PPEO provides a statutory licensing scheme for places of
public entertainment. The requirements of the application process under the
PPEO and the relevant regulations thereunder establish what can be described as
a multi-disciplinary, pre-event risk assessment process in relation to the keeping
and use of a place of public entertainment. It is an assessment that enables risks
to be identified and precautions to be put in place before a public entertainment
takes place.
199. As noted above, it is a criminal offence to keep or use a place of
public entertainment without a licence granted under the PPEO. Section 10(1)
provides that a licence for the purposes of the PPEO shall be in such terms as the

141
Bennion on Statutory Interpretation (6
th
Ed.), section 271 (pp.749-750)
142
Bennion on Statutory Interpretation (6
th
Ed.), sections 276 (pp.761-762) and 277 (pp.762-763)
- 74 -


licensing authority
143
determines. Section 10(2) specifies that the licence may
be subject to terms and conditions which: specify the period of the licence;
specify when the place to which it relates may be used for public entertainment;
require specified measures to be taken by the licensee; require the licensee to
provide first aid personnel; specify the maximum number of persons which may
be admitted to the place to which the licence relates.
200. By section 7(1), the Secretary for Home Affairs may by regulation
provide for various matters including: (a) the kinds of entertainment for which
places of public entertainment may be licensed and the mode of application, and
fees, for licences; (b) the cancellation of any licence; (c) the location of a place
of public entertainment generally or on or in any place, building, erection or
structure and the circumstances, conditions and restrictions in or subject to
which such location may be permitted; (d) the materials of which any place of
public entertainment shall be constructed and regulating the construction of such
place; (e) the exercise of measures against overcrowding and for the control and
prevention of fires and for the maintenance of sanitary conditions in any place of
public entertainment; (f) the maintenance of peace and good order in a place of
public entertainment; and (g) the entry and inspection for the purposes of
securing compliance with the ordinance and regulations of a place of public
entertainment.
201. The Places of Public Entertainment Regulations (Cap.172A) (the
PPER) have been duly made pursuant to section 7 of the PPEO. The PPER
include detailed provisions as to the form of a licence and the manner in which it
is to be applied for. Permanent and semi-permanent structures specially
designed as theatres and cinemas are dealt with in Part I and other places of

143
Under section 3B, the Secretary for Home Affairs has authorised the Director of Food and
Environmental Hygiene as the relevant licensing authority to issue or cancel licences and exercise other
functions relating to licensing matters.
- 75 -


public entertainment in Part III. The application form distinguishes between a
place of public entertainment (cinema/theatre), to which regulation 3 (in Part I)
applies, and a place of public entertainment (other than cinema/theatre) and a
temporary place of public entertainment, to which regulation 162 (in Part III)
applies.
202. Regulation 162 provides that a person who desires to keep or use
any place of public entertainment shall apply in such form as the licensing
authority may specify not less than 42 days before the commencement of the
proposed entertainment. If the licensing authority does not reject the application,
it is required to forward a copy of the application to various persons, namely (a)
the Commissioner of Police; (b) the Director of Fire Services; (c) one of the
Building Authority or Director of Housing or Director of Marine (depending on
the place to which the application relates); and (d) the Director of Electrical and
Mechanical Services (if laser equipment is, or is to be, installed).
203. Regulation 162(3) requires the applicant to supply (unless the
application relates to a vessel) not less than 28 days before the commencement
of the proposed entertainment:
(a) a plan showing to the satisfaction of the licensing authority the layout of
the place to which the application relates including, in particular, each of the
following-
(i) each part of the place intended to be used for holding
entertainment;
(ii) each part of the place intended to be used for seating or otherwise
accommodating an audience (if any);
(iii) each existing and any proposed exit route from the place;
(iv) the position or location in the place of any existing or proposed
permanent structure;
(v) each part of the place in which it is intended that temporary
barriers may be erected or otherwise provided;
(vi) the proposed or actual location in the place of all sanitary fitments;
(vii) the proposed or actual location in the place of fire service
installations and equipment;
- 76 -


(viii) all or, as may be appropriate, any 1 or 2 of the following means by
which ventilation of the place, or any part thereof, is provided, namely,
windows, ducts or any mechanical means;
(ix) the proposed or actual location in the place of all laser equipment
(if any);

(c) in the case of a temporary structure, diagrams sufficient to illustrate the
proposed method of construction and the spacing and scantling of structural
members.
204. Under regulation 162(8) (and subject to the provision of certain
specific certificates and plans required under regulation 162(9)), the licensing
authority, once notified by each of the persons to whom the application has been
forwarded that he has no objection to it, may grant the licence sought.
205. In addition to the pre-event risk assessment process, the PPEO and
PPER provide a means by which the keeping or use of a place of public
entertainment may be monitored to ensure compliance with the PPEO and PPER.
Thus:
(1) Regulation 169 gives the licensing authority and various of the
other persons to whom the application may be forwarded the right
of entry to the place to which the application relates in order to
inspect it for the purposes of the PPEO.
(2) Regulation 170B provides that:
Where a licence is granted or renewed under these regulations, then for
so long as the licence remains in force, the licensee shall exhibit and keep
exhibited at all times the licence in a conspicuous position at the entrance
or, if there is more than one entrance, the main entrance of the premises to
which the licence relates.
(3) Regulation 174(1) provides that:
When it appears to any police officer not under the rank of Chief
Inspector or to any other police officer specially authorized in that behalf
in writing by the Commissioner of Police that it is necessary so to do for
the protection of any person present in a place of public entertainment in
an event of emergency, or for the prevention of disorder in the place of
public entertainment, it shall be lawful for that officer personally to order
- 77 -


that the place of public entertainment be temporarily closed or vacated,
and upon any such order being given every member of any audience, and
every other person (if any) present at the place of public entertainment
shall forthwith comply with it in an orderly manner.
(4) Section 11 of the PPEO enables the licensing authority to apply to a
magistrate for a prohibition order (to prohibit the operation of an
unlawful place of public entertainment) and a closure order (to
close a place of public entertainment where the prohibition order is
not complied with).
F.3 The legislative history of the PPEO
206. As will be seen, the PPEO has a long legislative history. It has
been the subject of numerous amendments, in the nature of incremental
reactions to particular policies and events rather than comprehensive reviews of
the legislative scheme, which have in turn, extended, restricted or modified the
licensing regime.
(a) Theatres Regulation Ordinance 1908
207. The PPEO can be traced back to the Theatres Regulation Ordinance
1908 (Ord. No.18 of 1908) which prohibited the having or keeping of any
building, matshed or other place of public resort for the public performance of
stage plays without a licence.
(b) Places of Public Entertainment Ordinance 1919
208. The Theatres Regulation Ordinance 1908 was replaced by the
Places of Public Entertainment Ordinance 1919 (Ord. No.22 of 1919) i.e. the
PPEO which was enacted to consolidate and amend the law relating to places
of public entertainment. This prohibited the keeping or use of any permanent
or temporary building or matshed (underlining added) for any public
- 78 -


entertainment without a licence. The 1919 Ordinance defined Entertainment
as including:
any concert, stage play, stage performance, cinematograph display, exhibition
of dancing, conjuring or juggling, acrobatic performance, boxing contest, or
circus, or any other entertainment of a similar character;
and Public Entertainment as meaning:
any entertainment, as above defined, to which the general public are admitted
with or without payment for admission.
(c) Places of Public Entertainment Regulation (Amendment)
Ordinance 1951
209. The PPEO as enacted in 1919 was amended by the Places of Public
Entertainment Regulation (Amendment) Ordinance 1951. This substituted a
new definition of entertainment as including:
any concert, stage play, stage performance or other musical, dramatic or
theatrical entertainment or any part thereof, any cinematograph display, lecture,
story-telling, circus, exhibition of pictures, photographs or books, exhibition of
dancing, conjuring or juggling, acrobatic performance, exhibition of abnormal
persons or animals, any sporting exhibition or contest, any bazaar, any merry-
go-round, flying wheel, or other mechanical device designed for amusement.
210. More importantly, the 1951 Ordinance added a new definition of
place of public entertainment as meaning:
any place on which there is any erection or structure, any premises or building
whether temporary or permanent or any water-borne craft or other place in or at which
a public entertainment takes place whether on one occasion or more;
(underlining added)
and amended the principal legislative prohibition to one of keeping or using
such a place without a licence.
211. As stated in the Objects and Reasons (i.e. the explanatory
memorandum) of the relevant bill, the Colonial Secretary informed the
Legislative Council when moving the bill that the proposed replacement
definition of entertainment and the interpretation for place of public
- 79 -


entertainment
144
had the effect of widening considerably the places and forms
of entertainment subject to the control imposed by the Ordinance.
(d) Places of Public Entertainment (Amendment) Ordinance 1970
212. The PPEO as amended by the 1951 Ordinance was further amended
by the Places of Public Entertainment (Amendment) Ordinance 1970. This was
enacted as a result of various recommendations made in the Report of a
Commission of Inquiry to investigate the collapse of the stand at a tattoo held in
Sek Kong. The 1970 Ordinance substituted the definition of place of public
entertainment with a new definition of that term as meaning:
(a) any place on which there is any building, erection or structure, whether
temporary or permanent, capable of accommodating the public; and
(b) any vessel,
in or on which a public entertainment is presented or carried on whether on one
occasion or more.
(underlining added)
213. The Explanatory Memorandum to the relevant bill stated that the
new definition of place of public entertainment includes an[y] place on which
there is a structure, whether temporary or permanent, capable of accommodating
the public, such as a tent or a grandstand, and any vessel. In moving the bill,
the Attorney-General explained to the Legislative Council that the definition of
place of public entertainment then current (in the 1951 Ordinance) was wide
enough to include a place on which there is no structure capable of
accommodating the public, for example, a field which is set aside for a
gymkhana but that this was unnecessary, since the object of the Ordinance,
and of the regulations which are made under it, is to apply appropriate safety
standards to buildings and structures used by members of the public attending
public entertainments. The new narrower definition would in future only

144
i.e. any other place in or at which a public entertainment takes place
- 80 -


include places where a building of some kind, capable of accommodating the
public, is erected and also vessels.
(e) Places of Public Entertainment (Amendment) Ordinance 1980
214. The PPEO as amended by the 1970 Ordinance was further amended
by the Places of Public Entertainment (Amendment) Ordinance 1980. This
amended the definition of place of public entertainment to the following
meaning, namely:
(a) so much of any place, building, erection or structure, whether temporary or
permanent, capable of accommodating the public; and
(b) any vessel,
in or on which a public entertainment is presented or carried on whether on one
occasion or more.
(underlining added)
215. The Explanatory Memorandum to the relevant bill stated that these
amendments were designed to make it clear that a place of public entertainment
may be located within a building used also for other purposes and to ensure that
the circumstances in which this is done can be regulated and appropriate
restrictions and conditions imposed. Consistently with this, the Secretary for
the Environment informed the Legislative Council, when moving the bill, that
the existing regulations did not cater for small 500 to 2,000-seat cinemas above
ground level in multi-storey buildings and that the aim of the proposed
amendment was to dispel any doubts as to the powers of the Governor in
Council to make regulations to provide for the location of places of public
entertainment within buildings which are used also for other purposes and to lay
down appropriate conditions. He stated that, if the amendment was enacted,
new regulations would be made to regulate the location of small places of
public entertainment, particularly cinemas, in non-domestic multi-storey
buildings or the non-domestic parts of such buildings.
- 81 -


(f) Public Entertainment and Amusement (Miscellaneous Provisions)
Ordinance 1995
216. The PPEO as amended by the 1980 Ordinance was further amended
by the Public Entertainment and Amusement (Miscellaneous Provisions)
Ordinance 1995. Relevantly in the context of this appeal, the 1995 Ordinance
amended the definitions of entertainment to include any event, activity or
other thing specified in the Schedule and public entertainment to mean any
entertainment within the meaning of this Ordinance to which the general public
is admitted with or without payment. It also added the present section 10
providing for the licence for a public entertainment to be subject to conditions.
217. As regards the amended definitions, the Secretary for Recreation
and Culture explained to the Legislative Council in moving the relevant bill that
the amendment of the definition of entertainment was to revise and update the
definition by removing outdated forms of entertainment and including laser
projection display as a new form of entertainment. As regards the introduction
of section 10, the Secretary explained that this was to give effect to relevant
recommendations made in the Final Report of the Hon. Mr J ustice Bokhary into
the Lan Kwai Fong Disaster including crowd control measures and provision of
first aid services.
(g) Places of Public Entertainment (Amendment) Ordinance 1997
218. The 1995 Ordinance was amended by the Places of Public
Entertainment (Amendment) Ordinance 1997. This materially added section 11
to the PPEO relating to prohibition and closure orders (see above).
219. Also in 1997, the PPER were amended by the Places of Public
Entertainment (Amendment) Regulation 1997 which added the current
regulation 170B concerning the exhibition of the licence (see above).
- 82 -


F.4 The context and purpose of the PPEO
220. The context of the relevant provisions of the PPEO includes other
provisions of the PPEO itself, including provisions of the PPER addressed above,
and the existing state of the law, including other ordinances such as the
Summary Offences Ordinance (Cap.228) (the SOO), the Police Force Ordinance
(Cap.232) (the PFO) and the Public Order Ordinance (Cap.245) (the POO)
relevant to the use of and policing of public places.
221. As to statutory purpose, it is plain from the scheme of the PPEO as
well as its legislative history that its essential purpose is the regulation of safety
at places where public entertainments are presented or carried on so that the
safety of those members of the public attending the various forms of
entertainment at those places will be adequately protected. The matters with
which the licensing authority is concerned and which may be the subject of
conditions in any licence granted, such as structural integrity, mechanical
installations, fire precautions, first aid and sanitary fitments, are all clearly
directed towards this purpose. That this is the essential purpose of the PPEO is
not in dispute and was recognised both by Lam J at first instance
145
and Cheung
CJ HC in the Court of Appeal
146
.
222. However, it is important to recognise that there are limits to the
extent this statutory purpose can be used to construe the PPEO. These limits
derive in part from the self-evidently limited nature of the licensing regime
imposed by the PPEO. For example, notwithstanding legitimate safety concerns
that might exist in relation to forms of entertainment other than those listed in
Schedule 1, those other forms of entertainment are not subject to the scheme.
Similarly, notwithstanding that large numbers of people may be invited to attend

145
CFI Judgment 39, 42 and 44
146
CA Judgment 22
- 83 -


a private entertainment, the PPEO only applies to those places defined as places
of public entertainment. As Lord Millett NPJ observed in China Field Ltd v
Appeal Tribunal (Buildings) (No.2):
There can be no quarrel with the principle that statutory provisions should be
given a purposive interpretation, but there has been a distressing development
by the courts which allows them to distort or even ignore the plain meaning of
the text and construe the statute in whatever manner achieves a result which
they consider desirable. It cannot be said too often that this is not permissible.
Purposive construction means only that statutory provisions are to be
interpreted to give effect to the intention of the legislature, and that intention
must be ascertained by a proper application of the interpretative process. This
does not permit the Court to attribute to a statutory provision a meaning which
the language of the statute, understood in the light of its context and the
statutory purpose, is incapable of bearing.
147

F.5 Is admission to the place of public entertainment required?
223. We are concerned in this appeal with the meaning of the term
place of public entertainment because it is the keeping or use of such a place
that triggers the requirement for a PPEO licence. The definition is wide and
includes any place. A place can prima facie be an open space if suitably
defined and delineated so that it can be identified.
148
The various locations
within the definition, including a suitably defined open space capable of
accommodating the public, are places of public entertainment if they are places
in or on which a public entertainment is presented or carried on whether on one
occasion or more. One must therefore have regard to the definition of public
entertainment in order to identify whether a place is a place of public
entertainment. A public entertainment is defined as any entertainment within
the meaning of the PPEO to which the general public is admitted with or
without payment.

147
(2009) 12 HKCFAR 342 at 36
148
Powell v The Kempton Park Racecourse Company Limited [1899] AC 143 at 194 per Lord James of
Hereford
- 84 -


224. On behalf of the Commissioner, Mr J ohnny Mok SC
149
contends
that the concept of admission only applies to the entertainment rather than the
place of entertainment and is therefore only used to distinguish between a public
entertainment, to which the PPEO may apply, and a non-public or private
entertainment, to which the ordinance does not apply. Admission to the place of
entertainment is not, it is contended, required.
225. I accept that the definition of public entertainment including the
requirement of admission of the public distinguishes a public entertainment from
a private entertainment. That is the reason why an entertainment within
Schedule 1 of the PPEO which is presented in a private home, even if many
people are in attendance, is not a public entertainment. It is also why, if a
person were to hire a cinema for the exclusive viewing of a film as part of a
private party, the absence of admission of the public would mean the screening
of the film was not a public entertainment, however many invitees there were.
226. However, I do not, with respect, accept the Commissioners latter
contention that admission to the place of entertainment is not required.
227. The PPEO is an ordinance to consolidate and amend the law
relating to places of public entertainment and the principal operative provision is
a licence requirement for the keeping or using of a place of public entertainment.
That licence requirement is directed at those persons who present or carry on
public entertainments, albeit not necessarily for financial gain, in respect of their
keeping or using places of public entertainment.
228. The definition of place of public entertainment is not to be read
in isolation and necessarily incorporates the definition of public entertainment
since that is part of the term itself. A public entertainment as defined requires

149
Appearing with Mr Abraham Chan
- 85 -


that it be one to which the general public is admitted. The requirement that
the public be admitted to the place is therefore an integral part of the definition
of a place of public entertainment. This can be seen most clearly in relation to
an entertainment presented or carried on in or on a vessel. The vessel cannot be
the place where the public entertainment is so presented or carried on unless the
public are admitted onto it. If it were otherwise, there would be no safety
concerns for the public relating to the vessel as the place of public entertainment
and the legislative scheme for the notification of, among other Government
agencies, the Director of Marine would make no sense. That the public must be
admitted to the place in question is, in any event, also inherent in the necessity
for the place, if other than a vessel, to be capable of accommodating the
public. The accommodation of the public in this context clearly suggests a
physical accommodation by reference to the characteristics of the location.
229. As can be seen from the summary of the legislative history above,
when the definition of public entertainment was introduced in 1919, the only
entertainments to which the public could be admitted were entertainments which
took place within a structure of some sort (any permanent or temporary
building or matshed). Admission to the entertainment therefore involved both
a locality and admission to that place where the entertainment as defined was to
take place. Although the places of public entertainment were widened in 1951,
then narrowed in 1970 and again widened in 1980, it was never suggested in any
of the relevant explanatory memoranda or speeches in Hansard moving those
legislative amendments that the admission of the public to the public
entertainment did not involve an admission to a locality.
- 86 -


230. If admission to the place of public entertainment were not
necessary, the surprising (and therefore, in my view, unintended
150
) consequence
could occur of places which were entirely remote and unconnected to where the
actual entertainment was presented or carried on being constituted a place of
public entertainment. For example, an entertainment which could be seen or
heard from a distance removed from the principal place where the public
entertainment was being presented or carried on would give rise to subsidiary
places of public entertainment requiring licensing. Spectators of a football
match or musical concert who found vantage points outside the stadium or
auditorium where the game or concert was being played or performed would, on
the Commissioners case,
151
be said to be admitted to the public entertainment
and the various vantage points, if capable of accommodating the public, could
each then be said to be places of public entertainment for which licences would
be required. Yet these could be places of which the organiser of the public
entertainment in the stadium or auditorium was completely unaware and over
which he would have no influence as regards matters of public safety or order.
231. One of the conditions to which a licence under the PPEO may be
subject is a condition specifying the maximum number of persons which may be
admitted as regards entertainments taking place in the place to which the licence
relates.
152
In addition, the concept of admission to the place of public
entertainment under the PPEO is reinforced by the statutory restrictions on the

150
It is an interpretative presumption that the court seeks to avoid a construction that produces an absurd
result, since this is unlikely to have been intended by Parliament; the more unreasonable the result, the less likely
it is that Parliament intended it: Bennion on Statutory Interpretation (6
th
Ed.), section 312 (pp. 869-870).
151
In particular, on the Commissioners case as to what constitutes being admitted to an entertainment
(as to which see below).
152
PPEO, section 10(2)(f), which provides that the licence may: specify the maximum number of persons
which may be admitted as regards entertainments taking place in the place to which the licence relates and any
such term or condition may specify such a maximum as regards entertainments in general or specify 2 or more
such maxima as regards specified entertainments of different classes or descriptions. (Underlining added)
- 87 -


unauthorised sale of tickets.
153
Although post-dating the relevant definitions
with which we are concerned, these provisions form part of the context of the
PPEO in which the provisions under consideration are to be construed. The
form of these legislative provisions is incongruous and inconsistent if the
definitions in the PPEO are read as not requiring admission to the place of the
entertainment and one can legitimately ask why the draftsman framed those
provisions in this way if admission to the place of entertainment was not
required.
232. I have had the benefit of reading in draft the judgment of Mr J ustice
Tang PJ which addresses the significance of the words in the Chinese
version of the definition of public entertainment. His view on the use of those
words in the Chinese definition of public entertainment supports the
conclusion that admission of the public to the place of public entertainment, and
not merely the entertainment, is required. I also note the use of the same word
in the Chinese definition of place of public entertainment.
233. I therefore conclude that admission to the place of public
entertainment is required. That then raises the question of what the requirement
of admission entails.
F.6 What does the requirement of admission entail?
234. This is the critical question in this appeal.
235. As noted above, the Court of Appeal concluded that insofar as an
open space may be a place of public entertainment the requirement that the place
be one to which the public is admitted means that the place must be enclosed or

153
PPEO, section 6(1): No person shall sell, or offer or exhibit or have in his possession for sale, or solicit
the purchase of, any ticket or voucher authorizing or purporting to authorize admission to any place of public
entertainment licensed under this Ordinance or any place with respect to which duty on payments for admission
is payable under the Entertainments Tax Ordinance . (Underlining added)
- 88 -


cordoned off and the person who is keeping or using the place must have the
right and ability to admit or exclude others from it.
236. The Commissioner strongly challenges this conclusion and
contends that the Court of Appeals construction is too narrow as a matter of
language and contrary to the fundamental statutory purpose underlying the
PPEO. The PPEO defines entertainment very widely to include the list of
matters specified in Schedule 1 some of which typically take place both indoors
and outdoors and, it is submitted, admission should be construed consistently
with the application of the PPEO to these various forms of entertainment. The
public interest in ensuring appropriate safety measures are in place is equally
strong, if not stronger, the more open and porous to entry a particular place is.
Given the PPEOs purpose of protecting public safety and order, a purposive
construction supports the conclusion that control is not necessary. All that is
necessary is an area that is defined or delineated.
237. Mr Mok argues that, since admission may be without payment and
the PPEO refers only to entertainment to which the public is admitted but does
not specify who enables admission, the legislative concern was with the fact of
public access to or participation in an entertainment and thus public exposure to
risks. The Commissioner refers to the dictionary definition of admit which
includes the meanings, in an involuntary sense, of: Be open to or compatible
with; leave room for; and Afford entrance to; have room for.
154
It is
therefore contended that the word admitted is capable of being understood in
this passive sense and that the words to which the general public is admitted
with or without payment should be construed purposively as requiring only that
the public entertainment is one to which members of the public are afforded or
allowed access or in which the public can participate. This construction, it is

154
Shorter Oxford English Dictionary (5
th
Ed.) p.29
- 89 -


argued, is entirely consistent with the natural and ordinary meaning of the word
admitted and will best achieve the PPEOs fundamental purpose of protecting
public safety and order.
238. Since the underlying purpose of the PPEO is accepted to be the
protection of public safety and order, must the word admitted be construed in
the sense the Commissioner contends it should or is it to be construed, as the
Court of Appeal concluded, as requiring the person presenting or carrying on the
entertainment to exercise control over those who are admitted?
239. There is some justification in a number of Mr Moks criticisms of
parts of the reasoning of the Court of Appeal for its conclusion on the issue of
control.
240. I would accept that little, if any, assistance is to be derived from
reliance on either Scott v Cawsey
155
or R v Bow Street Magistrates Court, ex p
McDonald
156
.
241. In rejecting the Commissioners case below, the Court of Appeal
relied
157
on a passage in the judgment of Griffith CJ in Scott v Cawsey, a
decision of the High Court of Australia, where he said (at p.138):
The term admission, however, involves the idea of locality, and of the
ability of the person who permits the admission to exclude others from the
place of entertainment or amusement except with his consent.
242. The case concerned a statute prohibiting the use for public
entertainment or amusement on a Sunday of a house, room, or other place to
which persons were admitted by the payment of money. Payment was
required for admission to the railed-off part of a larger room, to which entrance
was free, in which a public entertainment was given. The statutory context and

155
(1907) 5 CLR 132
156
(1996) 95 LGR 359
157
CA Judgment 32-33
- 90 -


purpose was therefore very different to that of the PPEO, being aimed at persons
seeking to profit from holding entertainments in premises under their control
rather than public safety and order. Therefore, although suggesting that the
natural and ordinary meaning of admitted implies control, the case provides
no direct assistance on a purposive construction of the word admitted in the
PPEO.
243. Before Lam J , the first instance decision of Dyson J
158
(as he then
was) in R v Bow Street Magistrates Court, ex p McDonald was relied on by the
Commissioner to support the submission that the use of a place need not carry
with it the right of control.
159
That case concerned the issue of whether the
licensing requirements under the London Government Act 1963 applied to a
buskers use of Leicester Square to play the guitar. The Act prohibited the use
of any premises, which were defined to include any place, for public
entertainment without a licence. Dyson J rejected the argument that the busker
could only be using Leicester Square for public entertainment if he had control
of the place. The busker therefore required a licence.
244. However, Dyson J s judgment had been reversed on appeal and,
unfortunately, the English Court of Appeals judgment was not cited to Lam
J .
160
The English Court of Appeal reversed Dyson J on the basis that the Act
was not designed to be applied to a person playing his guitar in a public place to
which the public had access but over which the local council had innumerable
powers.

158
R v Bow Street Magistrates Court, ex p MacDonald, Lexis transcript, CO/2683/93, 14 December 1994
159
CFI Judgment 56-58
160
The spelling of the buskers name in the title of the first instance decision (MacDonald) was different to
that used in the Court of Appeal decision (McDonald) and neither party was aware of the Court of Appeal
decision.
- 91 -


245. In the Court of Appeal, Cheung CJ HC referred to ex p McDonald to
illustrate the proposition that, absent a special arrangement with the Government,
a public street is inherently inapt to be a place of public entertainment.
161

246. I do not think either judgment in ex p McDonald sheds light on the
meaning of the word admitted in the PPEO. The relevant provision in the
London Government Act 1963 did not require the public to be admitted either to
the public entertainment or the place where the public entertainment was
presented or carried on, as is required in relation to the PPEO. In any event, it
was concerned with the particular factual position of a busker, which normally
speaking would not give rise to the same concerns of public safety or order as a
more substantial public entertainment involving, for example, the construction
and use of a stage.
247. Nor do I think the Court of Appeals reliance on the licensing
requirements that might be imposed, in particular the conditions to which a
licence might be subject under section 10 of the PPEO, demonstrates that the
regime simply cannot work if the organiser or performer has no ability to
control admission.
162
Those conditions are not mandatory and their imposition
will, in any given case, depend on the circumstances of the particular place of
public entertainment.
163
That some of those conditions might not be appropriate
for an open space in a public street does not mean the scheme of pre-event risk
assessment cannot be applied to such a place, nor that the need for such a risk
assessment might not exist. Similarly, I do not share the Court of Appeals view

161
CA Judgment 41
162
CA Judgment 39
163
Under PPEO section 10(3), the licensing authority may cancel, waive or vary any conditions subject to
which a licence has been granted.
- 92 -


that unless a public street is suitably enclosed or cordoned off, compliance with
regulation 170B of the PPER is impossible.
164

248. Notwithstanding those criticisms of the Court of Appeals
reasoning, I have nevertheless, for the following reasons, reached the conclusion
that the requirement of admission does require some form of control over the
admission of persons to the public entertainment and the place where it is being
presented or carried on and, as a corollary, a right of exclusion from that place.
249. It is true, as the Commissioner contends, that the purpose of the
PPEO is to promote public safety and order and there is undoubtedly a need to
regulate crowds in public places. The Lan Kwai Fong disaster on New Years
Day in 1993 was referred to in the Commissioners submissions to demonstrate
this need and the point was made that a PPEO licence had been issued in respect
of an entertainment event which formed part of the activities resulting in the
tragedy. The circumstances in which that licence was granted are not known
and it cannot be assumed that the organiser of that particular entertainment for
which the licence was granted did not have sufficient control over entry, so
reliance on the fact of the licence having been granted cannot assist in resolving
the construction issue in this appeal. In any event, more importantly, as I have
already said, there is a limit to purposive construction in that a court cannot
attribute to a statutory provision a meaning which the language, understood in
the light of its context and statutory purpose, cannot bear. In the case of the
PPEO, the statutory purpose of promoting public safety and order would be an
argument in favour of a licence requirement in respect of all forms of
entertainment that might draw a crowd in any place. Plainly, however, this
would not be justified on the statutory language.

164
CA Judgment 40
- 93 -


250. In its natural and ordinary meaning, in my opinion, the word
admitted suggests an active sense of giving permission to enter or have access
or letting a person in. This is so even if one considers an entertainment rather
than a place as the object of the admission, but it is all the more so if admission
is to a place (as I have concluded above). It is certainly an unusual use of the
word admitted to convey a sense of merely having access to or being exposed
to or having an ability to participate in an entertainment. The wording of the
definition would otherwise be adequate and more naturally expressed if it
referred to a public entertainment being one to which the general public has
access to, is exposed to or can participate in. The concept of admission
would normally, in my view, connote something more than that.
251. It was suggested that the additional words with or without
payment following the phrase to which the general public is admitted support
the argument that control of admission is unnecessary. If payment for admission
to the entertainment were required, a contrary answer would be clear since there
would need to be some control mechanism for this and non-payment would
plainly lead to exclusion. However, the obverse is not the case. Even though
admission may be without payment, this does not point inevitably to the
conclusion that no form of control of admission is required. It remains
necessary to ascertain the legislative intent of the words to which the general
public is admitted.
252. Here again, it is relevant to refer to the legislative history. The
phrase to which the general public are admitted with or without payment for
admission (emphasis added) was part of the original definition of public
entertainment in the PPEO as enacted in 1919. As I have already observed, the
places which then required licensing were all structures into which one would
have to be physically admitted. There is no reason to think that the word
- 94 -


admitted would then have been understood as bearing only a passive sense of
having access. The active sense of the word was clear, in particular given the
qualification that it mattered not whether payment was required for
admission.
165
When the definition of places of public entertainment was
widened in 1951, then narrowed in 1970 and then widened again in 1980, the
same definition of public entertainment including the word admitted
remained. There is no reason to think that the word admitted varied in its
meaning depending on whether a place of public entertainment was limited to a
structure, in which case it bore an active sense of admission, or was not so
limited, in which case it bore a passive sense of admission. This change would
have been significant and there is nothing in any of the admissible extrinsic
materials to suggest it did change its meaning in this way.
253. In this regard, I again respectfully refer to the views of Mr J ustice
Tang PJ as to the significance of the words in the Chinese version of
the definition of public entertainment. His view on the import of those words
strengthens the above conclusion that, based on the English word admitted,
the PPEO contemplates that someone must be admitting members of the public
to the entertainment in the active sense of permitting them to enter and, as a
corollary, exercising the ability to exclude others.
254. I have referred above to the surprising consequence of places
unconnected with the presentation or carrying on of an entertainment being
places of public entertainment if admission to the place of the entertainment
were not required. If admission of the public to an entertainment did not imply

165
This qualification remained until the definition of public entertainment was amended in 1995 when
the types of entertainment covered by the PPEO was expanded to those listed in the Schedule (now Schedule 1).
There is nothing to suggest that its removal was intended to change the meaning of admitted from an active
into a passive sense.
- 95 -


some control over admission or exclusion, other surprising and, in my view,
unintended results would follow.
255. It would mean that any busker performing in a place to which the
public had access would require a PPEO licence. It is correct that a busker may
be covered by a licence issued by the Commissioner and therefore not liable to
prosecution for a nuisance committed in a public place under section 4(15) of
the SOO
166
, but there is nothing in the SOO or PPEO that suggests that a licence
under section 4(15) of the former relieves the busker from an obligation to
obtain a licence under the latter. The two ordinances are directed at different
concerns and are not mutually exclusive regimes of control. On the
Commissioners construction of admitted, a busker playing in a delineated
portion of a public space and attracting a crowd of passers-by would be
performing in a place of public entertainment and so require a licence. I do not
think it is an answer to say that buskers are not within the scheme of the PPEO
because they do not generally attract large crowds and so do not engage public
safety concerns. The applicability of the PPEO licensing regime is not
predicated on a particular number of people being admitted.
256. The nightly laser projection display from a number of buildings in
Central and Kowloon, watched by members of the public from various vantage
points, would give rise to numerous places of public entertainment in open
public areas subject to no control of the organisers of the display.
167
Mr Mok
informed the Court that the laser display is organised by the Leisure and
Cultural Services Department (LCSD). Whilst a place that is under the

166
Section 4(15) provides that: Any person who without lawful authority or excuse plays any
musical instrument in any public street or road save under and in accordance with the conditions of any such
general or special permit as the Commissioner of Police in his absolute discretion may issue; shall be liable to
a fine of $500 or to imprisonment for 3 months.
167
The display is said to be the Worlds Largest Permanent Light and Sound Show in which coloured
lights, laser beams and searchlights perform in an unforgettable all-round spectacle synchronised to music and
narration that celebrates the energy, spirit and diversity of Hong Kong: see
http://www.discoverhongkong.com/eng/see-do/highlight-attractions/harbour-view/a-symphony-of-lights.jsp
- 96 -


management of the LCSD is exempt from the operation of section 4 of the
PPEO,
168
this exemption would not prevent the consequence that each of the
various public spaces not managed by the LCSD where crowds might gather,
and are encouraged to gather, to watch the display would be places of public
entertainment and thus require a licence. Again, I do not think it is an answer to
say that there is no public safety concern in relation to any of those places since
that is purely a matter of assumption and, in any event, the basis for the
imposition of the licence requirement is the keeping or use of a place of public
entertainment and not the keeping or use of a place about which there are safety
concerns. The pre-event risk assessment is designed to determine if there is a
risk and, if so, what measures might be required to mitigate that risk.
257. A vessel on which an orchestra was playing (but on which no
audience was present) would not itself be a place of public entertainment but
any public spaces on shore or another vessel in no way controlled by the
organisers of the orchestra performance where the music could be heard by
members of the public would be.
258. It is not uncommon to see gatherings of domestic helpers and others
in various public spaces on Sundays when impromptu and informal dancing and
singing performances take place which could attract passers-by to watch. On
the Commissioners case, those places would then become places of public
entertainment and the dancers or singers would need a licence under the PPEO
to use them.
259. These examples of surprising consequences of construing
admitted as merely meaning having access to or being exposed to or being
able to participate in an entertainment demonstrate, in my view, that there is, at
the very least, a measure of doubt as to whether these situations are truly

168
Places of Public Entertainment (Exemption) Order (Cap.172D), section 2
- 97 -


intended to be subject to the PPEO licence regime. Who would be responsible
for applying for a PPEO licence in these cases? It would not be a principled
approach to the construction of the PPEO for the answer to this question to
depend on subjective factors such as the intention of the organiser of the
entertainment. How, given the degree of detail required to be provided to the
licensing authority, could the application in these cases be meaningfully made
by the organiser? Why, in the case of buskers or other informal entertainments,
should the application of the licensing regime depend on speculation as to the
number of persons who might attend? It is not satisfactory to say that these
surprising consequences could be avoided by the grant of exemption orders
under section 3A(1) of the PPEO
169
: those orders would be dependent on the
exercise of administrative discretion; in any event, they would apply to
particular places, not forms of entertainment.
260. In this regard, it is of significance, in my opinion, that the
imposition of a licence requirement on the keeping or use of a place of public
entertainment entails an interference with the constitutionally protected
freedoms of assembly and expression.
170
Since clear words are required to
effect any such restriction, I would prefer to resolve these real doubts as to
meaning in favour of the construction that does not amount to a restriction of the
relevant right.
261. Similarly, since a failure to obtain a licence for the keeping or use
of a place of public entertainment constitutes a criminal offence, the principle

169
This provides that: The Secretary for Home Affairs may exempt places of public entertainment
which are of a specified class or description from (a) this Ordinance or particular provisions of this Ordinance
specified in the order; (b) regulations under this Ordinance which are so specified or particular provisions of
such regulations being provisions which are so specified.
170
The focus of the PPEO is on the places where public entertainments are presented or carried on and not
the public entertainments themselves and there is no question of the legislative scheme being intended to have
any influence or control over the content of any entertainment. Nevertheless, the licence requirement itself is a
restriction on the rights in question.
- 98 -


against doubtful penalisation would tend to favour adopting the construction of
two competing constructions which does not give rise to a risk of prosecution.
262. For these reasons, I have come to the conclusion that the word
admitted is to be construed in an active sense and as requiring that, for a place
to be a place of public entertainment, the person presenting or carrying on the
public entertainment must be able to control admission to the place where the
entertainment is being presented or carried on. Although this construction is
narrower than that urged on us by the Commissioner, for the reasons I have
given and notwithstanding the statutory purpose of the PPEO, I do not think the
wider construction is justified.
F.7 Unless admission can be controlled, the PPEO cannot apply to a
public street or other publicly accessible open space
263. In the course of his oral submissions on behalf of the Respondent,
Mr Hectar Pun
171
appeared to suggest that the PPEO could only apply to private
premises and not to any public place and therefore could not apply to a public
street. However, this was inconsistent with the position taken in the
Respondents printed case that a PPEO licence could be granted in respect of an
entertainment in a public street.
172

264. There is certainly some basis for questioning whether the PPEO
was intended to apply to a public street or any other public place to which the
general public has an unrestricted right of access under the general law. As a
matter of ordinary language, it is odd to speak of the public being admitted to
either and the legislative history of the PPEO does not suggest this particular
issue has been considered by the Legislature.

171
Appearing with Mr Newman Lam and Mr Albert N.B. Wong
172
Case for the Respondent, 5(2)
- 99 -


265. On the other hand, there is nothing in the PPEO to suggest that it
could not apply to an appropriately defined and delineated place in a publicly
accessible open space in respect of which a person presenting or carrying on a
specified entertainment could control admission. For some open public spaces,
such ability to control admission might be conferred by the terms of a particular
licence arrangement, e.g. in the case of the use of part of a public park. In
practice, this might require the place of the public entertainment to be enclosed
or cordoned-off but, depending on the particular place, control of admission
might be possible without any such enclosure or cordoning-off.
173

266. So far as a public street is concerned, the respondents concession
that control over admission could be exercised was premised on the grant of a
licence under the PPEO. This reasoning is obviously circular since, on my
construction of the relevant provisions, the ability to control admission is a
necessary pre-condition to the making of an application for a licence. Since the
public has a right of way over a public street, it is difficult to see how control
over admission of members of the public could lawfully be exercised. Absent
some other basis for exercising control over admission by members of the public
to a public street, the PPEO licence regime cannot apply to an entertainment
presented or carried on in a public street.
267. Using a public street to present or carry on an entertainment would,
depending on the scale of the entertainment, very likely constitute an obstruction
or otherwise be unlawful under the SOO or POO. In that case, the organiser or
performer would almost certainly run the risk of being required to stop the
entertainment and of being prosecuted for public nuisance or obstruction.
Although this may be a reactive means of addressing a situation in which public

173
E.g. by reason of the physical characteristics of the public street or by the use of bouncers to exclude
persons from entry
- 100 -


safety concerns may arise, I do not regard this as being intrinsically inadequate
and it does not persuade me that the provisions of the PPEO require the word
admitted to be construed unnaturally in order that the PPEO scheme can then
be applied to a public street. If it is thought that this conclusion leaves a lacuna
in the law, that is a matter for the Legislature to address by legislation.
F.8 The public was not admitted to the place of public entertainment
in this case
268. In the Commissioners printed case, it is argued that, in any event,
the public was admitted to the entertainment here in a sufficiently active sense
because the Organisers chose the venue, actively invited the public to attend,
arranged the event in such a way as to limit their exclusionary control and
continued to exercise control by the provision of marshalls.
269. That argument of the Commissioner is premised on the rejected
contention that what is required is only admission to the public entertainment
and not the place of public entertainment. In the present case, Lam J found that
the Organisers did not have the power to exclude other persons from the
pedestrian precinct in Lockhart Road.
174

270. It follows that the public was not admitted to the pedestrian precinct
in Lockhart Road where the dance performance presented as part of the 7
th

IDAHO event was presented or carried on. The pedestrian precinct was
therefore not a place of public entertainment under the PPEO and the Organisers
did not require a licence for its use.
F.9 PPEO not ousted by the availability of general police control
271. In answer to the Commissioners argument for a wider application
of the PPEO to a place over which the organiser of a public entertainment has no

174
CFI Judgment 31
- 101 -


control, the respondent sought to argue that there was no useful purpose in
applying the licensing regime in the PPEO to a public street given the existing
powers of the police to regulate activities there. The powers relied upon were
those under the SOO
175
, the PFO
176
and the POO
177
.
272. I do not accept this argument, which may have been advanced in
order to support the contention, relevant were the constitutional issue to have
arisen for decision, that the restrictions constituted by the PPEO were not
necessary. The powers to be exercised by the police under those ordinances all
plainly serve very different purposes to those addressed by the PPEO. None of
the other ordinances address the matters with which the PPEO is concerned, nor
in the same manner or degree of detail. Public safety and order may be affected
by matters governed by the specific concerns of the PPEO licensing regime and
which are different to those matters which give rise to the powers under the
SOO, the PFO and the POO.
273. Nor do I accept the Respondents argument that, if a PPEO licence
has been obtained in respect of a public place, the polices other general powers
over that place are ousted and instead then limited to the powers under PPER
regulations 169 or 174 (see above). In my view, that argument is untenable.
Those other general powers continue to exist even where a PPEO licence is
granted over a defined area of a public place.
G. Disposition
274. The construction issue being decided in favour of the respondent, it
is not necessary to address the constitutional issue and, for the above reasons, I
would dismiss the appeal.

175
Sections 4 and 4A
176
Section 10
177
Sections 9, 11(2) and 17(2)
- 102 -


Lord Neuberger of Abbotsbury NPJ:
A. Introductory
275. The issue of principle raised by this appeal is whether a licence
under the Places of Public Entertainment Ordinance (Cap 172), the PPEO, is
required for an entertainment which is presented or carried on in an area which
is wholly comprised in a public street.
276. The relevant facts, the legislative history of the PPEO, the relevant
provisions of the PPEO, the Regulations made thereunder, the PPER, and the
history of these proceedings are fully set out by Ribeiro PJ in paras 14-40 and
98-99 of his judgment and by Fok PJ in paras 171-193 and 198-219 in his
judgment, and I gratefully adopt what they say.
277. The issue which is raised by this appeal is difficult to resolve, as is
apparent from the difference of opinion between the Chief J ustice and Ribeiro
PJ on the one hand, and Tang and Fok PJ J on the other. The difficulty is in my
view attributable to a number of factors. First, there is the imperfect drafting of
the present version of the PPEO, which I think is partly caused by the draftsman
making of successive substantial piecemeal amendments to legislation, without
then fully considering the resulting legislation as a whole. Secondly, and in
fairness to those responsible for drafting the PPEO, the exercise of deciding how
to define precisely what sort of arrangements should fall within the ambit of the
PPEO is an inherently difficult exercise. Thirdly, I suspect that it simply did not
occur to those responsible for drafting the PPEO that entertainment of the sort
which they had in mind would be provided, or at least exclusively provided, on
land over which a public right of way existed. Fourthly, the wider interpretation,
as favoured by the appellant Commissioner of Police, appears to result in the
PPEO extending to activities which many people would have expected to be
outside its ambit, whereas the respondents narrower interpretation seems to
- 103 -


mean that activities which one might have expected to be within its ambit are
excluded from it.
B. Statutory interpretation
278. Having said that, it is of course necessary to interpret the PPEO in
order to resolve the issue raised on the appeal. The issue is one of statutory
interpretation, and I agree with Ribeiro PJ and Fok PJ that the statutory language
must be interpreted in the light of its context and purpose, as laid down in the
cases to which he refers in paras 48 and 194 of their respective judgments.
However, as Fok PJ says in para 195, that should not be seen as a judicial
licence to ignore or refuse to give effect to the words which the legislature has
chosen to use: when construing an Ordinance, the court is an interpreter not a
legislator. When considering what is sometimes referred to as a purposive
approach, it is salutary to bear in mind what was said by Lord Millett NPJ in
China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HFCFAR 342,
para 36, quoted by Fok PJ at para 222 of his judgment.
279. So far as the facts of the instant case are concerned, it is clear that
what was involved constituted entertainment, that it was presented in a
place, and that the presenters did not (for the reasons given by Fok PJ in paras
268-270 of his judgment) have control over who attended or saw the
entertainment. Accordingly, the issue may, I suppose, be said to turn on the
meaning and effect of a single word, namely admitted, in section 2 of the
PPEO. As I have mentioned, the meaning of that word ultimately turns on its
context. As Lord Hoffmann famously said, No one has ever made an
acontextual statement - Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004]
UKHL 46, [2005] RPC 9, para 64.
280. In this case, the immediate documentary context of the word
admitted is that it is in the definition in section 2 of the PPEO of public
- 104 -


entertainment, namely any entertainment to which the general public is
admitted with or without payment; and that expression is in turn incorporated
in the definition in the same section of place of public entertainment, which is
what must be kept or used in order for a licence to be required under section 4 of
the PPEO, the section which the Commissioner contends is engaged in this case.
Sections 2 and 4 must themselves be interpreted by reference to any other
relevant provision of the PPEO.
281. However, that is only the documentary context. One must also take
wider matters into account as part of the context, namely the purpose of the
PPEO, practicalities, common sense, the existing state of the law (including
other Ordinances), any Explanatory Memorandum, and any authoritative
statement to the Legislative Council. A number of cases suggest there are also
certain canons of statutory construction, such as the principle that legislation
which creates a criminal offence or interferes with fundamental rights should be
narrowly construed, but such factors are often of limited value, as they
frequently do no more than discourage a court from giving such legislation a
wider meaning than that which it naturally bears.
282. Bearing in mind the potentially many factors which fall to be taken
into account when interpreting legislation, it is perhaps inevitable that the
interpretation process involves what has been called an iterative process,
checking the rival interpretations against the words themselves, and the
documentary and wider contexts of the sort briefly summarised above.
C. The meaning of the word admitted in its documentary
context
283. Starting with the centrally relevant words, I consider that, if the
general public has the right to view entertainment because it is being presented
in a street to which any member of the public has a right to be present, then it is
- 105 -


not a natural use of words to describe the entertainment as being entertainment
to which the general public is admitted; and that view is reinforced a little by
the immediately following words with or without payment. I accept that the
entertainment in a case such as this is presented to members of the public,
because they can view it as of right given that they are entitled to be where the
entertainment is presented. However, the statutory words carry with them the
notion of members of the public being permitted by someone, with a legal right
to refuse entry, to enjoy the presentation of the entertainment. To refer to a
person being admitted to somewhere or something at which he or she already
has an established legal right to be present would involve an unusual use of the
word admitted. In particular, to refer to members of the public being admitted
onto a public highway is not a natural use of the word admitted.
284. I understand from paras 166-167 of the judgment of Tang PJ that
this view is consistent with, and indeed receives even greater support from, the
Chinese language version of the PPEO. However, although the appeal was
argued purely by reference to the English language version, it is right to bear in
mind that the Chinese version has equal status - see section 10B of the General
Clauses Ordinance (Cap 1), quoted by Ribeiro PJ at para 82 of his judgment.
The fact that the Chinese version post-dates, and was presumably based on, the
English version does not, in my view, prevent section 10B from applying:
otherwise, one would be implying an exception into a statutory provision, a
course which is only to be taken when it can be shown to be necessary in order
for the provision to be workable or to make sense.
285. The application of what I regard as the natural interpretation in the
present case appears to me to be reinforced by the fact that the entertainment
with which we are concerned took place in a public street, where, not only does
the public have a right to be present, but it must be questionable whether the
- 106 -


presenters had a right to erect a substantial stage or to present an entertainment
which may well have impeded the use of the street for a public pedestrian right
of way - see the discussion in Yeung May Wan v HKSAR (2005) 8 HKCFAR
137, paras 41-44, as to what activities can lawfully be carried on in a public
highway.
286. Nonetheless, I accept that it is not a positive abuse of language to
describe the general public as being admitted onto a public highway by the
general law. However, I do not consider such a passive meaning to be a normal
use of the word admitted, particularly in the context of the definition of
public entertainment in section 2. Indeed, the natural, active, reading of
admitted in the context of sections 2 and 4 is that it is the presenter of the
entertainment who is envisaged as being responsible for, or controlling,
admission - a view which gets some support from section 10(f), which entitles
any licence to specify the maximum number of persons which may be admitted
[to the relevant] place.
287. I also agree with the point made by Fok PJ at his para 252, namely
that the contention that admitted should be given what I regard as its natural
meaning is supported by the fact that the words for admission were included
after the words with or without payment in the definition of public
entertainment from 1919 until they were removed in 1995. The inclusion of the
words for admission, as I see it, emphasised that the concept of admission was
being used in its active sense rather than its passive sense. I do not consider that
it would be realistic to attribute to the draftsman in 1995 an intention to change
the whole notion of what was meant by admission. It is a very unlikely notion,
bearing in mind the other amendments made in 1995 and the absence of any
reference to such intention in any contemporaneous document, coupled with the
- 107 -


fact that the words for admission were retained even after the widening of the
definition of place of public entertainment in 1980.
D. Admission to public entertainment or to the place of public
entertainment
288. As Ribeiro PJ points out in paras 54-57 of his judgment, the
concept of admission in section 2 of the PPEO is tied to the definition of public
entertainment, as opposed to place of public entertainment. However, I do
not consider that this undermines the force of the linguistic argument which I
have so far been considering, for the reasons given in the next four paragraphs.
Indeed, if the point is significant, it seems to me that, if anything, it tends to
reinforce the view I have expressed, for the reason given in para 289 below.
289. The first reason why it makes no difference that the admission
referred to in section 2 is to public entertainment, at least in a conventional case
such as the present, where there is a live musical, dramatic, or similar staged
performance, is that there is no real practical distinction between admission to
the place of entertainment and admission to the entertainment. In that sense,
admission to entertainment differs from admission to membership of a club or to
the Bar or to residency status, which are the examples given by Ribeiro PJ in his
paras 78-80 (all of which I believe involve the use of the word admitted in its
natural sense). One can be admitted to all three of these institutions without
having to be in a physical place, but that is not true where one is concerned with
admission to entertainment. Accordingly, in agreement with Fok PJ , as a matter
of ordinary language, at least to my mind, admission to the entertainment still
naturally conveys the notion of being permitted entry to a place where the
person who is admitted can enjoy the entertainment.
290. Secondly, the definition of place of public entertainment
incorporates the definition of public entertainment. Accordingly, in agreement
- 108 -


with Fok PJ at para 228 of his judgment, it appears to me that the requirement
that the general public be admitted is integral to the place where the
entertainment is presented, particularly as the PPEO is concerned with
licensing places of public entertainment, not public entertainment. I note in this
connection that the only place in the PPEO where public entertainment is
referred to without being immediately preceded by the words place[s] of, apart
from the definition of public entertainment in section 2 itself, is in section
10(2)(b), which refers to a place used for public entertainment (and
anyway section 10 was only added in 1995). Accordingly, examination of the
terms of the PPEO shows that, as is apparent from its title, its whole thrust is
directed to places of public entertainment rather than to public entertainment.
291. Thirdly, if the appropriate test was whether the public was admitted
to the entertainment rather than the place of entertainment, the problems which
Fok PJ identifies in para 230 of his judgment would arise.
292. Fourthly, quite apart from the point made in para 283 above, it
appears to me that it is in any event unsafe to rely on the fact that the reference
to admission is in the definition of public entertainment, rather than place of
public entertainment, in the light of the legislative history of the PPEO as
explained by Fok PJ at paras 208-220 of his judgment. The definition of public
entertainment has remained effectively unchanged since 1919, and it was only
in 1951 that place of public entertainment was defined: until then the
requirement for a licence was limited to entertainments in a building or
matshed. Accordingly, it seems tolerably clear that the PPEO initially equated
admission to the place with admission to the entertainment. Of course,
amendments to one statutory provision can have a consequential effect on
another statutory provision, but one must be cautious of imputing to the
- 109 -


legislature an intention to change the meaning of an existing provision, when it
has not amended its wording.
293. If, however, the distinction between entry to the place and entry to
the entertainment is significant, then, if anything, I think it tends rather to
reinforce the view that, if the entertainment is presented on a public highway, it
is not a natural use of the word to say that the public are thereby admitted to it.
If one is talking about admission to the place, the public have a right to be there
as a matter of public law: to that extent, albeit employing a non-natural use of
the word, they can be said to be admitted to the place as a matter of public law.
But public law does not give the public the right to see the entertainment: it is
merely because they have the right to be on the street that the public happen to
be able to see the entertainment. That seems to render the notion of admission
even less appropriate as a matter of language on the Commissioners
construction. It is true that it is the presenter of the entertainment who chooses to
present it to the public in this way, but that point in no way assists the
Commissioners argument, because it still does not involve giving a natural
meaning to the word admitted.
E. Conclusion on the natural meaning in the documentary context
294. I do not consider that much further assistance can be obtained from
the wording of the PPEO. There is some, but pretty limited, force in the
respondents reliance on section 6(1), which forbids the sale of tickets to a place
of public entertainment in any public thoroughfare. It suggests, albeit faintly
and by negative implication, that the PPEO was not concerned with
entertainment on such land. There is also a little force in the respondents
reliance on section 7(1)(g), which enables regulations to provide for entry
and inspection for the purposes of securing compliance with this Ordinance
of a place of public entertainment, and section 10(f), which is quoted above.
- 110 -


Those provisions tend to support the notion that the PPEO was concerned with
places over which the licensee could control entry, but they are not expressed so
as to apply of necessity to every place which is licensed, and section 10 was, as
mentioned above, added relatively recently.
295. It appears to me, therefore, that the natural meaning of the PPEO, at
least if one confines oneself to the provisions of that Ordinance, is that it does
not extend to entertainment such as that presented in the instant case, because
the entertainment was entirely presented on land on which the general public
had every right to be present. Nonetheless, the notion that one could describe the
general public as being admitted with or without payment to entertainment
which is presented in a location to which the general public has free access as
of right in any event, does not appear to me to be fanciful, as Ribeiro PJ
demonstrates in para 75 of his judgment. However, particularly where the
entertainment is being presented in a public street, I remain of the view that such
a description does not, in my opinion, involve a natural use of language,
particularly in the context of the PPEO.
F. The objection to the natural meaning
296. Casting ones eyes more widely, the obvious objection to what I
consider to be the natural interpretation in the light of the terms and history of
the PPEO is that it means that the public safety concerns which gave rise to, and
justify, the Ordinance, would not apply to entertainments which are presented on
the public highway, or (probably) on any land to which the public has access as
of right. The importance of those concerns is apparent from the terms of the
PPEO, and it is, I think, such concerns which ultimately, and understandably,
persuade the Chief J ustice and Ribeiro PJ to reach the conclusion that the PPEO
should be construed more widely, as the Commissioner contends, so as to apply
to entertainments held in such locations.
- 111 -


297. There is obvious attraction in that view, but in the end I do not
regard it as sufficiently strong to displace the natural meaning of the definitions
in section 2 of the PPEO. I do not regard the consequences of the narrower
construction advanced by the respondent as especially surprising, particularly in
the light of the following factors, all of which therefore tend to reinforce the
conclusion that what I regard as the natural meaning is the correct meaning.
G. Further reasons for adopting the natural meaning
298. First, just as it may be said that the narrower interpretation results
in the exclusion of certain performances which one might expect to be included,
so would the wider interpretation lead to certain performances which one would
expect to be excluded. Buskers are an obvious example: I agree with Ribeiro PJ
at his para 123 that it would be incongruous if they were within the reach of
the PPEO. To counter this problem, it is suggested that, as buskers need a permit
under subsection (15) of section 4 of the Summary Offences Ordinance (Cap
228), the SOO, they would be impliedly excluded from the PPEO. I cannot
agree. First, section 4 of the SOO and the PPEO are concerned with different
things, the one nuisance in public places and the other with public safety.
Secondly, as section 4(15) of the SOO refers to play[ing] a musical instrument
in any public street or road, it must extend to a pop group or even an orchestra,
and it cannot reasonably be imagined that, if the Commissioner is right, it was
intended to exclude them from the ambit of the PPEO.
299. Secondly, if the PPEO had the wider effect for which the
Commissioner contends, its reach would be rather uncertain, which is plainly
undesirable, particularly for an Ordinance which has potential criminal sanctions.
Thus, if a group of people gather in a public place for relaxation on a Sunday
and decide to dance for fun or to have some informal and impromptu beauty
pageant, for the amusement of anyone who passed, it is hard to see why the
- 112 -


PPEO would not apply, as the public would, whether the organizers wanted it or
not, be admitted on this wider interpretation. One way round that suggested by
the Commissioner was that, if the performers did not intend the public to be
admitted, the PPEO would not apply, but that seems to me to be wrong in
principle and a recipe for uncertainty. Similarly, if a laser display on a building
could be seen in many different public places, either side of the harbour, it
would be very hard to identify the place of entertainment, if the wider
interpretation was right. In answer, it was suggested that if the place was very
large or uncertain, the PPEO would not apply, but, once again, that seems to me
to be both arbitrary and unpredictable.
300. It was also suggested that, if activities such as those mentioned in
the preceding two paragraphs were within the PPEO, then the solution is that
they could (and maybe impliedly should) be exempted under section 3A of the
PPEO. I do not consider that that is a particularly satisfactory answer in
principle or in practice. In principle, although it has some force, I am not
attracted to the notion that a concern that a particular meaning leads to an
Ordinance applying to functions which one would expect to be excluded from its
ambit, can be disposed of by invoking an unfettered administrative power in the
Ordinance to exempt certain functions from its ambit. In any event, in practical
terms, section 3A grants a power to exempt specified locations, not specified
functions, from the PPEO, and therefore I do not consider that it would really
help the Commissioners case anyway.
301. Thirdly, the PPEO does not apply to an entertainment, however
many people may be present and whatever safety implications there may be, if
the entertainment is not open to the public. Accordingly, the draftsman of the
PPEO appreciated, indeed must have intended, that its reach would not extend to
an entertainment to which the public was not admitted, even though the number
- 113 -


of invitees might be very considerable. Thus, it cannot be said that the purpose
of the PPEO was to ensure that all entertainments were to be subject to its
provisions; it must have been realized that many very large gatherings, which
could give rise to safety concerns, would be excluded from its ambit. In my view,
that tends to undermine the notion that a court should strive to give the PPEO a
wide, rather than a narrow, reach.
302. Fourthly, where entertainment is presented at a location to which
the public has access as of right, there are Ordinances which enable the
authorities to exercise a significant degree of control, which would not, at least
normally, be available to them if the entertainment was presented in a private
location, ie one to which the presenter or someone else could control admission.
I have in mind in particular sections 6(1) and 17(2) of the Public Order
Ordinance (Cap 245), the POO, which bestow on the police a degree of control
over public gatherings (which are defined in section 2(1)), and section 6(2)
which also gives them a degree of control over many entertainments in public
places. The nature and degree of control under the POO would, I accept,
normally be significantly less effective than that accorded by the PPEO for a
number of reasons, but the appropriate degree and nature of the control over
public activities in different circumstances seems to me to be a matter for the
legislature rather than the judiciary.
303. Fifthly, if one looks at the history of the PPEO more broadly than I
have done so far, it seems to me rather to confirm the narrower reading which I
favour. As already mentioned, until 1951, the Ordinance only applied to
buildings and matsheds, and accordingly it seems clear that the entertainments to
which the general public was envisaged by the draftsman as being into a
building or matshed over which the occupier of the structure or the presenter of
the entertainment could control admission. When the reach of the Ordinance was
- 114 -


extended in 1951, restricted in 1970 by going more or less back to where it had
been before 1951, and then extended again in 1980, the definition of
entertainment remained unchanged. As I have already indicated, it seems
unlikely that, in the absence of any amendment to the definition and in the
absence of any relevant suggestion in any Explanatory Memorandum or in any
statement to the Legislative Council, the draftsman intended that the concept of
admitted in the definition of public entertainment should change its meaning.
304. Sixthly, as pointed out by Fok PJ in argument, a relatively narrow
meaning is supported by the reference to vessel in para (b) of the definition of
place of entertainment. If the entertainment consisted of music being played
on a ship in the harbour, and the public, while not permitted to be on the ship,
could enjoy the music from the shore, it seems to me that the ship alone would
be the relevant place. In addition, as Fok PJ explains at para 228 of his
judgment, the reference to vessel also supports the notion that the draftsman had
in mind admission to the place of entertainment.
305. Seventhly, it would not in any event be surprising if the draftsman
of the PPEO had taken the view that there was no need to cater for
entertainments which were presented in an area where the public had a right of
way. Particularly before 1999, there must have been considerable doubt whether
a live show, whether drama, music, dance, reading or anything else, could be
presented in a public thoroughfare. The decision of the House of Lords in
Director of Public Prosecutions v Jones [1999] 2 AC 240 is of some
significance in this connection. The English Divisional Court decided in 1997
that a public demonstration on a public highway was a public nuisance because
it was an impermissible use of the highway. In the House of Lords, two of the
five Law Lords agreed, although the majority held that such a use was
permissible provided that it was both reasonable and not inconsistent with the
- 115 -


ability of the public to pass and repass - see at [1999] 2 AC 257E, 281A-H, and
286H-287A). It is also worth noting that all three Law Lords in the majority
appear to have thought that they were developing the law - see per Lord Irvine
of Lairg LC at 254H, referring to the law today, Lord Clyde at 279G, referring
to the fact that the law may develop and change, and Lord Hutton at 286H,
who considered that the existing law was thereby being extended.
306. It therefore seems quite likely that those responsible for drafting the
PPEO believed that no relevant public entertainment could be lawfully carried
on and presented on land over which the general public had a right of way, as it
would not have been a permissible use of such land, as indeed the Divisional
Court and two Law Lords apparently would have thought. That real possibility
appears to me to reinforce the point that a court should not strain the natural
meaning of the definition in question to extend it to such entertainment,
particularly bearing in mind that the courts role is to interpret and not to
legislate.
307. Eighthly, there is the fact that the PPEO (i) interferes with the
fundamental right of freedom of expression, and (ii) creates (albeit contingently,
namely if a place of public entertainment is kept or used without a licence) a
criminal offence. In the present context, I do not find these factors of much
weight, except, as I have mentioned, to provide support for the view that we
should not give the words at issue a wide meaning if that is not their natural
meaning, particularly if it leads to uncertainty.
I. Four ancillary points
308. Finally, I should mention that there was some discussion about
whether, if (as I have concluded) the respondents case is correct, (i) the PPEO
could never apply to a public highway or other public location, (ii) if it could so
apply, the place concerned would have to be cordoned off in order for the
- 116 -


PPEO to apply, (iii) the PPEO would apply if the presenter cordons off or
otherwise encloses the land even if he had no right to do so, and (iv) a presenter
of entertainment which was not within the ambit of the PPEO could, as the
respondent suggested, voluntarily apply for a licence thereby bringing the
entertainment within the reach of the PPEO. I do not consider that it is necessary
to address any of those points in order to dispose of this appeal, but, as some
time was devoted to them, I will briefly express a view.
309. As to point (i), this case is concerned with a performance on land
over which there is an unrestricted right of way. Unless someone has authority
under an Ordinance to permit presenters of entertainment both to use land
subject to a public right of way for entertainment and to control entry thereto, I
would have thought that the PPEO could never apply to any land subject to a
normal public right of way. Different considerations may apply to land which
can be publicly enjoyed, and different considerations probably would apply but
in respect of such land in a case where a lawful permission has been given to
presenters of entertainment to cordon off or enclose the land for the purpose of
entertainment so that it can properly be said that the public is admitted to the
land in question, and therefore to the entertainment.
310. So far as point (ii) is concerned, in practice it may well be that,
where the entertainment is presented in a publicly accessible space, the PPEO
could not apply unless that space was cordoned off or enclosed in some other
way, because otherwise there would be no means of controlling admission.
However, the public location may be a peninsula connected to the land by a
narrow causeway, or a cul-de-sac with a narrow entrance, in which case no
cordoning off or the like would be required. In the end, it is a question of fact
whether the presenter of the entertainment, or indeed some other person, has
- 117 -


sufficient control over who comes to view the entertainment for it to be said that
the general public are admitted thereto.
311. Turning to point (iii), I agree with Ribeiro PJ when he says at paras
69-70 of his judgment that, where the land is public highway, an entertainment
would not become a public entertainment if it was cordoned off or otherwise
enclosed by a presenter of entertainment. Although the presenter might in
practice control admission to the land, he would be committing an offence, and,
anyway, the fact that the land was cordoned off would not alter the fact that the
public had the right to be there. Greater difficulties might arise where the land
was subject to more limited public rights, but it is unnecessary and inappropriate
to consider that on this appeal.
312. As to point (iv), the respondents contention is unarguable: either
an entertainment is within the ambit of the PPEO or it is not. I agree with
Ribeiro PJ s comments in para 71 of his judgment.
J. Conclusion
313. For these reasons, and for the reasons given by Fok PJ , I would
dismiss the appeal of the Commissioner of Police. Indeed, were it not for the
fact that I am disagreeing with the Chief J ustice and Ribeiro PJ , from whose
opinions I differ with considerable diffidence, I would have limited myself
simply to agreeing with the judgment of Fok PJ . However, as it is, like Tang PJ ,
I consider it appropriate to express my reasons in my own words, which may
represent a slight difference of emphasis or approach from that of Fok PJ , but
that should not detract from the fact that I agree with his judgment.
314. If I had been minded to allow the appeal, it would have been
necessary to consider the constitutional issue identified by Ribeiro PJ in para
- 118 -


136 of his judgment. In that connection, it is right to record that I entirely agree
with his analysis in paras 137-144 of his judgment.
Chief Justice Ma:
315. By a majority, Mr J ustice Ribeiro PJ and I dissenting, the appeal is
dismissed. As to costs, we direct that the parties be at liberty to serve on other
party and lodge with the Registrar of the Court within 14 days of the handing
down of this judgment any written submissions, with liberty to serve and lodge
any written submissions in reply within 14 days thereafter.











(Geoffrey Ma)
Chief J ustice
(R.A.V Ribeiro)
Permanent J udge
(Robert Tang)
Permanent J udge











(J oseph Fok)
Permanent J udge
(Lord Neuberger of Abbotsbury)
Non-Permanent J udge


- 119 -



Mr J ohnny Mok SC and Mr Abraham Chan, instructed by the Department of
J ustice, for the Appellant

Mr Hectar Pun, Mr Newman Lam and Mr Albert N.B. Wong, instructed by
Vidler & Co., assigned by the Director of Legal Aid, for the Respondent