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Freedom to Engage in Cultural Activities and Other Legal Issues in Busking



By David Ma

Busking has gained popularity in Hong Kong, which has yet to implement a licensing scheme for such solicitation. This blog examines various laws that impact the right of buskers.

Playing Musical Instrument and Obstruction

The Summary Offences Ordinance (Cap 228) (SOO) creates the below offences punishable by a fine of $500 or to imprisonment for 3 months:

• Under §4(15), it is an offence for any person to without lawful authority or excuse play 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. (emphasis added)

• Under §4(28), it is an offence for any person to without lawful authority or excuse do any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place. (emphasis added)

Under Article 34 of the Basic Law, Hong Kong residents have the freedom to engage in academic research, literary and artistic creation, and other cultural activities. The courts have held that the restrictions of such freedom under the SOO are rational and proportional for the purpose of public safety.

While §4(15) mentions that a permit to play musical instrument in public street may be secured from the Commissioner of Police, no information is available on the Hong Kong Police Force website. In Wong Chung Sing (HCMA 92/2015), Judge Li criticized the obscurity of the permit application process and the lack of appeal mechanism. It was held that playing an instrument without a police permit would not constitute an offence if there was a "lawful excuse" to do so.

In relation to "lawful excuse", the Court of Final Appeal held in Yeung May Wan ((2005) 8 HKCFAR 137) that the prosecution must show that the defendant had no lawful excuse to obstruct before there could be a conviction under §4(28). A person who obstructs a place "cannot be said to be acting without lawful excuse if his conduct involves a reasonable use of the...public place". ((2005) 8 HKCFAR 137 at paragraph 42) When assessing whether the obstruction is reasonable, the protection given by the Basic Law, such as the freedom to demonstrate under Article 27, must bear substantial weight.

It follows that when considering whether there is lawful excuse in playing an instrument in a public place under §4(15), the court must consider the reasonableness of the act with reference to the freedom to engage in cultural activities under Article 34. The prosecution would only succeed if it could show that the busker acted outside the scope of the lawful excuse by causing excessive obstruction or annoyance. Unfortunately, it appears that not all police and prosecution are mindful of this balancing exercise in performing their duties:

• Wong Chung Sing, a busking musician, was convicted under §4(15) on three individual occasions in 2008, 2009 and 2015. (HCMA 357/2008, HCMA161/2009 and HCMA 92/2015) He appealed each time by referring to his rights under Article 34, but only succeeded in the most recent case in which Judge Li quashed the conviction on the basis that the Magistrate erred in imposing the prosecution's burden of proof onto Wong and did not give substantially weight in considering Wong's freedom to engage in cultural activities under Article 34 (HCMA 92/2015);

• So Chun Chau, a busking acrobat, was charged by the police under section 4(28) and appeared in the Magistrate's Court in 2010. The magistrate held that So's act of tossing a diabolo high up in the air was reasonable when considered in light of Article 34 and did not constitute obstruction under §4(28) (ESS19669/2010);

• In Yeung May Wan, the Court of Appeal doubted whether the police officers, prosecution and magistrate appreciated that unreasonable impediment must be shown before conviction of the obstruction charge under §4(28). The Court of Appeal endorsed such view and quashed the convictions of the defendants. (This was not a busker case, but was about a Falun Gong demonstration.)

Place of Public Entertainment Licence

Section 4 of the Places of Public Entertainment Ordinance (Cap 172) (PPEO) sets out that it is an offence for a person to keep or use any place of public entertainment without a licence granted under the PPEO. Under §2 of the PPEO, a "place of public entertainment" is defined as "any place...capable of accommodating the public...in or on which a public entertainment is presented or carried on", and "public entertainment" is defined as any entertainment to which the general public is admitted with or without payment.

The case of T v Commissioner of Police(CACV 244/2012) involved a participant in the International Day Against Homophobia Demonstration (IDAHO) performance, which included recital and chanting of slogans and dance to pre-recorded music. The performance took place on a temporary stage and the open space in front of it on a Causeway Bay street which was designated as a pedestrian precinct at the relevant time. The performance was stopped after police intervention on the basis that the performers were using a place of public entertainment without a licence. In the appeal to the judicial review sought by T, the Court of Appeal referred to the UK case of R v Bow Street Magistrates' Court ex p McDonald ((1996) 93(15) L.S.G. 30), which involved a busking guitarist in Leicester Square. In that case, the UK Court of Appeal held that a guitarist did not require a licence under the London Government Act 1963, as it was the City Council, instead of the busker, which had control over Leicester Square to which the public had free access. In T, the Court of Appeal found that as the IDAHO organizers did not have the ability to control admission to the dance performance. Therefore, the location where the performance took place was not a "place of public entertainment", and T was not required to apply for a PPEO licence.

It would appear that a busker does not require a PPEO licence to perform in public unless the busker undertakes control and admission to the area of his or her performance, which is unlikely and probably impossible in most circumstances.

Begging

Section 26A of the SOO makes it an offence for a person to beg or gather alms in any public place or street. There are other laws against begging in relation to specific locations, for example section 14 of the Bathing Beaches Regulations (Cap 132E) and the §27 of the Pleasure Grounds Regulations (Cap 132BC).

The UK case of Gray v Chief Constable of Greater Manchester ([1983] Crim LR 45) held that a busking guitarist in a passageway who received tips from passersby was not guilty of the offence of begging under the Vagrancy Act 1824. This was because the busker gave value for money, and passersby were not forced to deal with the busker. This suggests that buskers should be safe from prosecution under laws against begging.

Other Laws

There are other laws which impact the right of a busker to perform. For example,

• Section 5 of the Noise Control Ordinance (Cap 400) makes it an offence for a person in any public place to play any musical or other instrument or uses any loudspeaker or other instrument which produces noise which is a source of annoyance to any person.

• Section 25 of the Pleasure Grounds Regulations (Cap132 BC) prohibits a person to play an instrument or sing in any public pleasure ground (as specified in the Fourth Schedule of the Public Health and Municipal Services Ordinance (Cap 132) excluding bathing beaches) to the annoyance of others unless a written permit is obtained from the Director of Leisure and Cultural Services. No details on such a licence are available on the website of the Leisure and Cultural Services Department. It is unclear as to how "annoyance" will be interpreted, but the protection given by Article 34 of the Basic Law should be taken into the assessment.

• By-laws, such as §26 of the Mass Transit Railway By-laws (Cap 556B), §24 of the Mass Transit Railway (North-West Railway) Bylaw (Cap 556H), and §31 of the Tung Chung Cable Car Bylaw (Cap 577A) prohibit the singing, dancing and playing of musical instruments on any part of the premises of these transportations.

Conclusion

The introduction of a proper busker licensing scheme by the Government and public transit operators would bring Hong Kong into line with other international cities that promote this art form. Until then, buskers should tread carefully so that they do not end up on the wrong side of the law.

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This page contains a single entry from the blog posted on September 30, 2015 11:42 AM.

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