T v Commissioner of Police: Licence pre-approval not required for certain events for the LGBTQ community in public

T v Commissioner of Police

Summarised by James Li (Associate)

Background

T was a participant of an event relating to the LGBT and intersex community that was held in a public pedestrian precinct. The event included a dance performed on a temporary stage set up by organizers. The dance was stopped by the police as they alleged the organizers had committed an offence as they did not have a temporary licence under the Places of Public Entertainment Ordinance (Cap.172) (PPEO).

The crux of the case is whether the organizers are required to obtain the said licence. This depends on whether the dance was a “public entertainment” and whether the place where it was presented or carried on was a “place of public entertainment” within the definition of the Ordinance.

Issues before the Court of Final Appeal

1. Whether the dance was a “public entertainment” within the meaning of the Ordinance.
2. Whether the place where it was presented or carried on was a “place of public entertainment” within the meaning of the Ordinance.

Decision and Reasoning

1. The dance shall not be regarded as a “public entertainment”. The Ordinance defines “public entertainment” to mean “any entertainment... to which the general public is admitted with or without payment”. The requirement of admission required some form of control over the admission of persons to the public entertainment and a right of exclusion from that place. If the requirement of admission is not met, a licence is not required for the activity.
2. The meaning of a “place of public entertainment” must incorporate the meaning of “public entertainment”. The admission requirement is therefore also an integral part of a “place of public entertainment”.

​
Comments

Whilst events of the LGBTQ community might be said to only reflect the voices of social minorities, the freedom of expression of such social minorities are directly engaged. It is encouraging to see the Court of Final Appeal recognizing that the imposition of a licence requirement on the keeping or use of a place of public entertainment entailed an interference with the constitutionally protected freedoms of assembly and expression, and such freedoms cannot be restricted by a licensing regime without clear unequivocal wordings in the law.