57. 本席認為,關鍵是警官必須符合條文的要求,當被檢控人士作出挑戰,而警官未能證明其合理相信,指示便屬不合法,違反指示亦非違法。如 James案本身所述:
“[39] … the starting point is the power to give a direction in section 14(1) of the POA 1986. It is plain that it requires the senior officer to hold the necessary belief that a public assembly may result in serious public disorder, and to have reasonable grounds for that belief. If, upon challenge by a person accused of an offence under section 14(5), the officer cannot prove that he actually held the necessary belief and did so upon reasonable grounds, his direction would be unlawful. It is necessarily implicit in section 14(5) that the direction containing the conditions must be lawful. Acquittal would follow, if it were not. …
[40] If the officer holds that belief on reasonable grounds, the conditions imposed by the direction must be such as ‘appear to him necessary to prevent such disorder’. Again, that “necessity” must genuinely appear to him. If no such necessity had appeared to him, the condition would not be lawful; non-compliance with it would not be an offence. …”
58. 由此可見,如果警官的指示不符合條文提出的要求,便不合法。同樣地,《公安條例》第9(4)條要求警方只可適度限制集會,並只能在其他措施或條件不可達到相關目的,才可禁止集會。 如果警方沒有考慮其他措施或條件, 或不合理地認為施加集會條件不可達到禁止集會的相同目的,禁止集會便不合法。