THERE was overwhelming evidence that protesters who charged a police cordon outside the Xinhua (New China News Agency) building threatened to breach the peace, thus turning an unauthorised meeting into an unlawful assembly, the Court of Appeal heard yesterday. The evidence before the court was sufficient to charge the demonstrators with riot, the Crown contended in reply to an appeal lodged by Andrew To Kwan-hang and Richard Tsoi Yiu-cheong. Wong Tai Sin District Board member To, 28, and aid to legislator Lau Chin-shek, Tsoi, 26, were found guilty last September on a joint charge of unlawful assembly by magistrate Alan Wright and received 160 hours' community service. A candlelight vigil was held in Victoria Park on the evening of June 4, 1991, in memory of the June 4 massacre in 1989. After the meeting, some participants marched to the agency offices in Happy Valley to stage a protest. A police cordon was erected. Demonstrators were allowed to march in front of it in groups of 19. But those who remained repeated the demand to be allowed to protest as a group and missiles such as plastic bottles were thrown. Despite police orders to disperse peacefully, the crowd pushed ahead and about 30 officers were hurt. Counsel for To and Tsoi, Martin Lee Chu-ming QC, on appeal, had argued that the trial magistrate erred to hold that section 18 of the Public Order Ordinance, which makes unlawful assembly a crime, did not contravene Article 17 of the Bill of Rights, which provides the right to peaceful assembly. There was no evidence to suggest anyone was put in fear by the action of the demonstrators, it was argued, and Section 17 (4) of the Public Order Ordinance, which empowered the police to set up the cordon, also infringed the Bill and should be repealed. In his reply yesterday, counsel for the Crown Steve Bailey rejected Mr Lee's argument that Section 18 allowed police to intervene at too early a stage in a peaceful assembly. The essence of a breach of peace, an ingredient to prove the offence of unlawful assembly, was the actual or likely harm caused to a person by violence, he said, accepting that there must be a reasonable grounds for such a fear. Counsel said the evidence showed that the large crowd discussed leaving or forcing their way through the barrier. They decided to rush the cordon and overpower the police. The evidence was overwhelming to establish reasonable fear that a breach of the peace was committed. They could have been charged with rioting, he added. Section 17 (4) of the Public Order Ordinance provided the legal basis for the police to set up the cordon. Even if the police did not act legally in setting up the cordon, counsel said, it did not justify an act of violence in seeking to break it down. The hearing continues today before vice-president Mr Justice Macdougall, Mr Justice Litton and Mr Justice Bokhary.