LEUNG KWOK HUNG v. SECRETARY FOR JUSTICE AND ANOTHER

CACV 541, 542 & 583/2019

[2020] HKCA 557

CACV 541/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 541 OF 2019

(ON APPEAL FROM HCAL 2949/2019)

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CACV 542/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 542 OF 2019

(ON APPEAL FROM HCAL 2945/2019)

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_______________

CACV 583/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 583 OF 2019

(ON APPEAL FROM HCAL 2945/2019)

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(heard together)

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J U D G M E N T

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The Court:

1.  These are the applications by the parties for leave to appeal against the judgment we handed down on 9 April 2020[1] pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. 

2.  KWH[2] raised a total of five questions:[3]

“Questions concerning the Constitutionality of the Emergency Regulations Ordinance (Cap 241) (‘ERO’)

1.  Whether the ERO taken as a whole confers what is in substance general legislative power on the Chief Executive in Council (‘CEIC’) with such lack of constraints that it is practically impossible for the courts to review the vires of any regulation made thereunder, such that it is incompatible with the constitutional order of separation of powers, checks and balances, and the rule of law enshrined in the Basic Law (‘BL’) having regard in particular to BL 2, 8, 17(2), 18, 48, 56(2), 62(5), 66 and 73(1), considering inter alia one or more of the following features of the ERO:

(i) The absence of any statutory definition and the uncertainty of ‘public danger’ in Section 2(1) of the ERO;

(ii) The subjectivity of what the CEIC may consider to be an occasion of public danger and may consider desirable in the public interest in Section 2(1) of the ERO;

(iii) The absence of any statutory requirement that the regulation be required as being necessary as opposed to simply desirable in the public interest pursuant to Section 2(1) of the ERO;

(iv) The absence of any constraint on the scope of the regulations that can be made, by virtue of Section 2(1) of the ERO which empowers the CEIC to make any regulation whatsoever which he may consider desirable in the public interest;

(v) The absence of any constraint or restriction on any regulation taking immediate effect or imposing a minimum period before the regulation may take effect;

(vi) The absence of any statutory requirement to periodically review or renew the regulations;

(vii) The absence of any constraint on the duration of the regulations;

(viii) The absence of any constraint on the power to amend, suspend and/or apply any enactment with or without modification, by virtue of Section 2(2)(g) and 2(4) of the ERO;

(ix) The absence of any real constraint on the penalties that can be prescribed by the regulations, by virtue of Section 3(1) of the ERO; and/or

(x) The absence of any scrutiny by the Legislative Council by virtue of Section 2(3) of the ERO or the precariousness of any such scrutiny by virtue of the power to suspend or amend the negative vetting mechanism by virtue of Section 2(2)(g) and 2(4) of the ERO.

2.  Whether the ERO could be read consistently with Section 5 of the Hong Kong Bill of Rights Ordinance (Cap 383) (‘HKBORO’) when an attempt to read Section 5 of the HKBORO into the ERO would result in two types of emergency, one that has to comply with all the stringent requirements of Section 5 of the HKBORO, and another one that (i) applies to an undefined situation of an emergency and public danger; (ii) is not required to be officially proclaimed; (iii) does not threaten the life of the HKSAR; (iv) confers wide and exceptional powers on the CEIC to make regulations that may substantially infringe fundamental rights but just short of derogation; (v) does not require the emergency measures to be strictly required by the exigencies of the situation; and (vi) at the same time is not the ‘peacetime situation’ where a normal restriction clause is designed for.

3.  Whether Section 2(1) of the ERO which provides that the CEIC’s powers to enact regulations interfering with any fundamental rights enshrined and protected under the BL and HKBORO, and which is triggered ‘on an occasion of … public danger’ and upon the CEIC considering it ‘desirable in the public interest’, is unconstitutional in that it falls foul of the requirement to be ‘prescribed by law’, being inter alia: (i) undefined as to what is an occasion of public danger; (ii) unduly wide as it can be exercised when subjectively desirable rather than where necessary, and (iii) expressly envisaging that the regulations may infringe fundamental rights.

Questions concerning the Constitutionality and Legality of the Prohibition on Face Covering Regulations, Cap 241K (‘PFCR’)

4.  Whether of the phrase ‘at the assembly’ as provided in Section 3 of the PFCR and for the purpose of Section 3(1)(b) of the PFCR, imports the same requirements provided under Section 17A(3)(b) of the Public Order Ordinance, Cap 245 (‘POO’) so that a person will only be liable for an offence under Section 3(1)(b) of the [PFCR] if he ‘knowingly takes or continues to take part in or forms or continues to form part of’ the said assembly.

4A.  Whether Section 3(1)(b) of the PFCR, on the construction as set out in Question 4 or otherwise, is nonetheless a disproportionate interference with the fundamental rights protecting the freedom of expression, assembly, movement and the right to privacy as provided in Articles 14, 16 and 17 of the Hong Kong Bill of Rights and [BL 27].”

3.  The only question raised by LKH is:[4]

“Whether the power conferred on the [CEIC] to make regulations on an occasion of public danger under section 2(1) of the [ERO] is unconstitutional in that it is incompatible with the prescribed by law requirement under [BL 39]?”

4.  The respondents raised 4 questions:[5]

“1. Whether s.3(1)(c) of the [PFCR] is constitutional, and in particular, whether the restriction imposed by s.3(1)(c) of the PFCR on the freedom of expression, of assembly and demonstration and the right to privacy is proportionate to the aim sought to be achieved by the section?

2. Whether s.3(1)(d) of the PFCR is constitutional, and in particular, whether the restriction imposed by s.3(1)(d) of the PFCR on the freedom of expression, of assembly and demonstration and the right to privacy is proportionate to the aim sought to be achieved by the section?

3. What is the appropriate margin of discretion that should be accorded to the exercise of judgment by the [CEIC] (i.e. the decision maker of the PFCR) in enacting s.3(1)(c) and s.3(1)(d) of the PFCR? In particular, did the [Court of Appeal (‘CA’)] err in adopting the standard of ‘no more than necessary’ having regard to the following considerations: -

(1) the fact that the PFCR was a temporary measure enacted to tackle an occasion of public danger;

(2) the fact that the appropriate measures to tackle the public danger involved issues of security and the restoration of public order on an occasion of public danger and not merely related to the maintenance of law and order in our society;

(3) that the Administration is better placed than the Court to assess the need for such temporary measures on an occasion of public danger;

(4) the restrictions imposed by s.3(1)(c) and s.3(1)(d) of the PFCR do not unduly interfere with the freedom of expression, or of assembly and demonstration or the right to privacy. In particular, those who wish to may still exercise their freedom of expression, of assembly and demonstration and have other means of preserving their privacy other than wearing a facial covering?

(5) The restrictions imposed by s.3(1)(c) and s.3(1)(d) of the PFCR would assist in preventing the outbreak of violence in lawful and authorised public meetings or processions, thereby providing a safer and more conducive social environment for Hong Kong residents to exercise their freedom of expression, or of assembly and demonstration without the fear that the meeting or procession would degenerate into violence or public disorder.

4. Without prejudice to Question 3, and irrespective of whether along the spectrum of reasonableness the applicable standard lies, whether s.3(1)(c) and/or s.3(1)(d) of the PFCR are reasonably necessary and can satisfy the proportionality test, and whether the CA erred in holding to the contrary (see CA Judgment §§242 to 248), having regard to the following: -

(1) the CA’s acceptance that the outbreaks of violence are escalated by the more radical and violent protestors employing ‘black-bloc’ tactics to avoid identification and arrest (see CA Judgment §14) should have led the CA to accept that: -

(a) the restrictions in s.3(1)(c) and s.3(1)(d) of the PFCR are reasonably necessary to facilitate the prevention of the outbreak of violence in an otherwise peaceful public meeting or public procession;

(b) the restrictions in s.3(1)(c) and s.3(1)(d) of the PFCR are reasonably necessary for the enforcement of the law, in particular, to assist the Police in identifying and apprehending persons who seek to conceal their identities by the use of facial coverings in otherwise peaceful public meetings or public processions, particularly those who initiate the violence or public disorder and hijack the otherwise peaceful public meetings or public processions;

(2) the frequent outbreak of violence at public meetings or processions which were initially authorised and/or lawful would likely deter many who shun, abhor or are fearful of violence to exercise their freedom of expression, of assembly and demonstration;

(3) the CA erred in focusing only on whether there is already ample or sufficient power on the part of the Police to respond to situation of lawful public meetings or processions being hijacked by protestors with violent or disorderly disposition or degenerating into an unauthorised or unlawful assembly (see CA Judgement §§243 and 246), thereby failing to appreciate the preventive and law enforcement rational aims of s.3(1)(c) and s.3(1)(d) of the PFCR as set out in paragraph 4(1) above and the effect on the exercise of the freedoms by those who shun or abhor or are fearful of violence above;

(4) the CA’s failure to appreciate the significance of the propensity of mass demonstrations turning violent (see CA Judgment §247), namely that it reasonably necessitates the Administration’s adoption of pre-emptive and preventive measures with a wide margin of discretion to prevent such eventuality or reduce its propensity, and to facilitate and protect the public’s exercise of their right of peaceful assembly, bearing in mind (i) the frequent situations that mass demonstrations had not remained lawful or peaceful; and (ii) the unpredictability of when they would turn unlawful or violent.”

5.  We are satisfied that all the questions raised are of great general or public importance which ought to be submitted to the Court of Final Appeal for determination.  We will grant leave to appeal to the Court of Final Appeal accordingly.

6.  We further order that costs of the applications be in the cause of the appeal before the Court of Final Appeal.