Public places and streets

I. Public places and streets

The expressions “public place” and “street” appear in a number of Ordinances. Their meanings may vary depending on the particular Ordinance being applied. In many cases, however, the starting point is the general definitions in the Interpretation and General Clauses Ordinance (Cap. 1), unless the relevant Ordinance gives its own definition. 

Public place 

In general, a “public place” means a place to which members of the public have access. Under the Interpretation and General Clauses Ordinance, it includes a public street, pier or garden, and also a theatre or place of public entertainment to which the public may enter, whether they need to pay or not. 

The key point is access. A place may be regarded as public if the public are entitled, invited or permitted to go there. It is not necessary for the place to be Government-owned. A place situated on private land may still be a public place if members of the public are allowed to enter or use it. For example, open areas within private commercial developments may, depending on the facts, be treated as public places if the public can and do use them. 

Access does not necessarily have to be available at all times. A place may still be public if it is open to the public at particular times or for particular purposes. Conversely, a place is less likely to be regarded as a public place if access is genuinely restricted to a limited class of people, such as residents, occupiers or their invited guests. For example, corridors inside private residential buildings are generally not public places where access is limited to the occupiers and their visitors. 

For the purposes of the Summary Offences Ordinance (Cap. 228), “public place” includes all piers, thoroughfares, streets, roads, lanes, alleys, courts, squares, archways, waterways, passages, paths, ways and places to which the public have access either continuously or periodically, whether the same are the property of the Government or of private persons. 

The Noise Control Ordinance (Cap. 400) specifically includes beaches, country parks, and public gardens. However, it excludes places used for gainful trade/business, and public entertainment as defined under the Places of Public Entertainment Ordinance (Cap. 172). 

Some Ordinances also deem certain places to be public places for specific legal purposes. This means that, even if there might otherwise be an argument about whether the place is “public”, the relevant Ordinance treats it as a public place for the purposes of that Ordinance, another Ordinance, or a particular offence.  

For example, under the Public Health and Municipal Services Ordinance (Cap. 132), certain locations are deemed public places for specific purposes, such as public swimming pools for offences against decency, and any part of a stadium, museum, library, or civic centre while open to the public. 

Whether a place is a “public place” therefore depends on the relevant Ordinance, the purpose of the provision, and the actual circumstances of access and use. 

Street 

The word “street” is also given a broad legal meaning. It is not limited to an ordinary road with vehicles. Under section 3 of the Interpretation and General Clauses Ordinance, “street” includes any highway, street, road, bridge, thoroughfare, square, court, alley, lane, footway, passage, tunnel and any open place used or frequented by the public or to which the public have or are permitted to have access. 

A street may exist even though the land is privately owned. If members of the public have access to it, or are permitted to use it, it may fall within the legal meaning of “street”. 

Different ordinances may expand this definition for specific purposes. For example, under the Public Cleansing and Prevention of Nuisances Regulation (Cap. 132BK), a street includes gutters, surface channels or grass verges adjoining or forming part of any street. 

An Ordinance may dedicate a street for a particular purpose. For example, where part of a street is set aside for hawking purposes, specific permissions and prohibitions may apply only to the designated portion for that use.