MTR Corp Ltd v Chow Nok Hang
Court of First Instance
Magistracy Appeal No 589 of 2017
Wilson Chan J
15 May 2018

Criminal law and procedure - appeal by case stated - Mass Transit Railway By-laws offences - failing to comply with reasonable direction of MTR official on railway premises under by-law 21(1) - failing to stop using loudspeaker and to leave station - whether paid area of station public place - whether direction of official reasonable - Mass Transit Railway By-laws (Cap.556B, Sub.Leg.) by-law 21(1)

Words and phrases - "reasonable" - Mass Transit Railway By-laws (Cap.556B, Sub.Leg.) by-law 21(1)

The appellant Corporation was a publicly listed statutory corporation limited by shares, which was required to "maintain a proper and efficient service at all times" during the franchise period under s.9(1) of the Mass Transit Railway Ordinance (Cap.556). The defendant (D) was acquitted of failing to comply with a "reasonable" direction and request of an MTR official (W) in railway premises, namely Tai Wai Station (the Station) contrary to by-law 21(1) of the Mass Transit Railway By-laws (Cap.556B, Sub.Leg.). About 15 persons, including D, placed a table in the middle of the paid area of the Station, displayed a banner and used a loudspeaker to ask for passengers' signatures to protest against the construction of the cross-border high-speed rail link. D and other protestors ignored three requests by W to: (a) stop broadcasting via the loudspeaker, demonstrating and collecting signatures; and (b) leave the Station (the Directions). D eventually left after being served with a Notice of Intended Prosecution for Breach of the By-law. The Deputy Magistrate held that the paid area of the Station was a public place; D was exercising his constitutional rights to freedom of speech, assembly and demonstration; and the prosecution had failed to prove the Directions were necessary and reasonable. The Corporation appealed by way of case stated.

Held, allowing the appeal by substituting a verdict of guilty against D and remitting the case to the Magistrates' Court for sentencing, that:

(1) Although the Government owned shares in the Corporation, it was a separate legal entity and therefore privately owned property. However, both commuters and other members of the public were freely admitted to MTR stations in furtherance of its business (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied). (See paras.16-18, 36.)

(2) On a purposive construction of by-law 21(1), the Directions were fair and reasonable having regard to maintaining "a proper and efficient service at all times" under s.9(1) of the Ordinance, inside the paid area of the Station (British Airports Authority v Ashton [1983] 1 WLR 1079, HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied). (See paras.21-22, 37.)

(3) The Directions were also reasonable having regard to the proportionality analysis. The maintaining of a proper and efficient service at all times by the Corporation inside the paid area of the Station was a legitimate aim, namely, to respect the rights of other users of the station or protect the public order or ordre public. The Directions inside the paid area of the Station were rationally connected to such aim by restricting obstructive and disruptive conduct in the paid area, which was often crowded with passengers in a hurry (International Society for Krishna Consciousness, Inc v Lee, Superintendent of Port Authority Policy (1992) 505 US 672, HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied). (See paras.23, 30-32, 37-38.)

(4) The Directions were also no more than reasonably necessary to accomplish the legitimate aim. D was not prevented from protesting and campaigning outside the paid areas of MTR stations and by other means such as social media. Thus, a reasonable balance was struck between the benefit to society of enabling commuters to use the MTR's trains and the limited restriction on the guaranteed right of freedom of expression (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied). (See paras.33-34.)

(5) Having regard to all relevant considerations, the Deputy Magistrate should have held that the Directions were reasonable and therefore wrongly acquitted D. (See para.39.)

Jurisdictions: 

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