HKSAR v. PUN LIN FA

HCMA 585/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 585 OF 2015

(ON APPEAL FROM ESCC NO 2783 OF 2013)

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J U D G M E N T

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INTRODUCTION

1.  This is the Secretary for Justice’s appeal, by way of case stated, against the determination of Mr Marco Li, a Magistrate sitting at Eastern Magistracy, on 30 January 2015 that Section 104A(1)(b) and (2) of the Public Health and Municipal Services Ordinance, Cap 132 (“the Ordinance”), which prohibits the display of bills or posters on Government land without the written permission of the Director of Food and Environmental Hygiene (“the Director”), is unconstitutional on the ground that it is inconsistent with the freedom of speech, assembly and demonstration protected by Article 27 of the Basic Law (“BL 27”) and Articles 16 and 17 of the Hong Kong Bill of Rights (“BOR 16” and “BOR 17” respectively).  In what follows, unless otherwise expressly indicated, references to Sections shall be references to sections of the Ordinance.

2.  Two questions are raised in the case stated:-

(1) whether it is permissible for the respondent, by way of defence to a criminal charge of displaying bill or poster on Government land without permission contrary to Section 104A(1)(b) and (2), to challenge the constitutionality of that section, and such challenge would not amount to a “collateral” challenge to the permission scheme of the Director relating to the display of bills or posters on Government land (“Question 1”); and

(2) whether Section 104A(1)(b) and (2) is unconstitutional on the ground that it is inconsistent with BL 27 and BORs 16 and 17 (“Question 2”).

BACKGROUND FACTS

3.  The respondent was charged with two offences, namely:-

(1) Obstructing a public officer, contrary to Section 23 of the Summary Offences Ordinance, Cap 228 (“the Section 23 Charge”).  The particulars of the offence stated that the respondent, on 2 May 2013, outside the Chief Executive’s Office, 1 Tim Wa Avenue, Central, in Hong Kong, did obstruct a public officer, namely, an Inspector of the Food and Environmental Hygiene Department, who was lawfully authorized in the performance of his public duty.

(2) Displaying bill or poster on Government land without permission, contrary to Section 104A (“the Section 104A Charge”).  The particulars of the offence stated that the respondent, on 2 May 2013, outside the Chief Executive’s Office, 1 Tim Wa Avenue, Central, in Hong Kong, did display a bill or poster, namely, a banner printed with the characters “法輪大法好”, on Government land without permission.

4.  Section 104A states as follows:-

“(1) No bill or poster shall be displayed or affixed –

(a) on any private land, except with the written permission of the owner or occupier thereof;

(b) on any Government land, except with the written permission of the [Director].

(2) A person displaying or affixing a bill or poster in contravention of subsection (1) commits an offence.”

5.  Section 104C(1) states as follows:-

“Where –

(a) a bill or poster is displayed in contravention of section 104A(1) …

the [Director] may remove the bill or poster and may recover the cost of removal from the person displaying the bill or poster as a civil debt.”

6.  Section 23 of the Summary Offences Ordinance states as follows:-

“Any person who resists or obstructs a public officer or other person lawfully engaged, authorized or employed in the performance of any public duty … shall be liable to a fine of $1,000 and to imprisonment for 6 months.”

7.  By way of defence to the two criminal charges, the respondent challenged the constitutionality of Sections 104A and 104C on the ground that they violated the Basic Law and the Hong Kong Bill of Rights, and raised two questions for determination by the Magistrate, namely:-

(1) whether Section 104A(1)(b) and (2), which required the respondent to obtain the permission of the Director before displaying a banner on Government land during a demonstration, was inconsistent with BL 27 and BORs 16 and 17; and

(2) whether Section 104C(1)(a), which empowered the Director to remove a banner displayed in contravention of Section 104A(1)(b), was likewise inconsistent with BL 27 and BORs 16 and 17, and thus the officers of the Food and Environmental Hygiene Department who removed the respondent’s banner at the material time was not lawfully engaged, authorized or employed in the performance of any public duty.

8.  On 12 December 2014, the Magistrate heard the above two questions as preliminary issues of law without receiving any evidence, save that a copy of the “Management Scheme for the Display of Roadside Non-commercial Publicity Materials Implementation Guidelines” (“the Management Scheme”) was placed before him without objection by either party, on the basis that they raised pure questions of law (see paragraph 8 of the case stated).

9.  The Management Scheme was adopted and promulgated by the Lands Department, pursuant to functions and powers delegated by the Director under Section 142, for the purpose of processing applications for permission to display non-commercial publicity materials on public roadsides under Section 104A(1)(b).  For the purpose of this judgment, it is not necessary for me to set out the details of the Management Scheme save to point out, as mentioned in paragraph 12(7) of the case stated, that it is limited in two ways.  First, the Management Scheme only covers designated spots on public roadsides.  Second, an individual other than a LegCo member or District Council member cannot apply for permission under the Management Scheme.  Nevertheless, any application by such individual for permission to display bills or posters on Government land can still be made directly to the Director under Section 104A(1)(b).

10.  On 30 January 2015, the Magistrate delivered his ruling on the two preliminary issues of law.  In particular, he held that:-

(1) Section 104C(1) was not contrary to the Basic Law or the Hong Kong Bill of Rights, and therefore the Section 23 Charge survived the constitutional challenge and could proceed.

(2) Section 104A(1)(b) and (2) was inconsistent with the freedom of speech, assembly and demonstration protected by BL 27 and BORs 16 and 17 because it failed the “prescribed by law” requirement and the “proportionality” test, and was therefore unconstitutional.

11.  The Secretary for Justice was not satisfied with the Magistrate’s ruling mentioned in paragraph 10(2) above, and brought the present appeal by way of cased stated by the Magistrate dated 18 September 2015.

QUESTION (1): WHETHER IT IS PERMISSIBLE FOR RESPONDENT TO CHALLENGE CONSTITUTIONALITY OF SECTION 104A BY WAY OF DEFENCE TO A CRIMINAL CHARGE BROUGHT UNDER THAT SECTION

12.  On behalf of the Secretary for Justice, Mr Jonathan Man accepts that it is open to the respondent, by way of defence to a criminal charge of displaying bill or poster on Government land without permission contrary to Section 104A, to challenge the constitutionality of that section.   What is not permissible, according to Mr Man, is for the respondent to challenge the lawfulness or validity of the Director’s “permission scheme” under Section 104A(1)(b) because the permission scheme is not an element (or ingredient) of the offence and thus its validity is irrelevant to the prosecution of an offence under that section.  In support of this submission, Mr Man relies on the decision of the Court of Appeal in Secretary for Justice v Ocean Technology Ltd [2009] 1 HKC 271.

13.  It is not, however, the respondent’s case that Section 104A is unconstitutional because the permission scheme operated by the Director under Section 104(1)(b) is unlawful or invalid. Ms Linda Wong submits that the respondent’s defence involves a direct challenge to the validity of Section 104A itself; in particular that section is unconstitutional because it constitutes an unlawful restriction on the freedom of demonstration. She says that the respondent’s challenge is not whether any discretion granted to the Director under Section 104(1)(b), or any exercise of such discretion by the Director, to permit the display of bills or posters on Government land is unlawful, but whether any permission of the Director at all should be required for the display of banners during demonstration.

14.  Ocean Technology is authority for the proposition that in the prosecution of an offence under sections 8 and 20 of the Telecommunications Ordinance, Cap 106 (viz, establishing or maintaining a means of telecommunications save under a licence granted by the Chief Executive in Counsel), it is not open to a defendant to raise, by way of defence, the legality of the statutory licensing regime under that Ordinance.  This is because, upon a proper construction of sections 8 and 20 of the Telecommunications Ordinance, it is the legislature’s intention that the legality of a licensing decision or of an aspect of the licensing scheme at any given time is not a necessary ingredient of the offence: see the judgment of Stock JA (with whom Ma CJHC and A Cheung J, as they then were, agreed), at paragraphs 86 to 95.

15.  In other words, the question of whether it is open to a defendant, who is charged with an offence of doing a prescribed act without the requisite permission or licence, to raise, by way of defence to that charge, the legality of any relevant permission or licensing scheme or of any decision under a relevant permission or licensing scheme, depends on the true construction of the statute creating the offence.

16.  On the other hand, where the statute creates a criminal offence which has the effect of restricting the exercise of some rights protected by the Basic Law or the Hong Kong Bill of Rights, it is generally open to the defendant charged with such offence to challenge the constitutionality of the offence itself as being an unjustifiable or unlawful restriction of those rights.  See

(1) Ocean Technology, at paragraphs 119 to 123 per A Cheung J:

“119. The constitutional rights guaranteed under art 27 of the Basic Law and art 16 of the Hong Kong Bill of Rights are not absolute. Art 39(2) allows restrictions that are ‘prescribed by law’. Further, art 16(3) provides that exercise of the rights provided for in art 16(2) may be subject to restrictions that are ‘provided by law’ and are ‘necessary’ for the respect of the right of others, or for the protection of national security or of public order (ordre public), or of public health or morals.

120. When a statute sets up a licensing regime for broadcasting the regime constitutes a restriction on one’s rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights. The restriction, to be constitutionally valid, requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights.

121. Moreover, the refusal of a licence application according to the particular circumstances of an individual case by itself also constitutes a restriction on the exercise of the rights under discussion. That restriction also requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights, apart from the fact it may be challenged on other standard public law grounds.

122. When the statute goes on to create a criminal offence against the exercise of the rights in the absence of a licence granted under the licensing regime set up in the statute, the offence so created by itself also constitutes a restriction on those rights. And that restriction likewise requires justification in terms of art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights.

123. Therefore, in the prosecution of the offence, the accused may always challenge the constitutionality of the offence itself as being an unjustifiable restriction on his rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights.”

(2) Secretary for Justice v Latker [2009] 2 HKC 100:

(a) at paragraph 63 per Ma CJHC (as he then was) –

“It is no answer to a constitutional challenge to say that the point can also be taken in other proceedings when, on a criminal charge, the defendant wishes to challenge the legality of the very provision under which he or she has been charged. As Lord Irvine of Lairg said in Boddington v British Transport Authorities [1999] 2 AC 143, at 162G, while the question is ultimately one of statutory construction whether a constitutional challenge is integral to the defence to a statutory offence, only clear words could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a provision where his prosecution is premised on its validity. In the present case, there can be no doubt that the Respondent’s prosecution was premised on section 63 being a valid provision.”

(b) at paragraph 163 per Stock JA -

“The decision in Ocean Technology is not to be read as precluding constitutional challenges to offence-creating provisions as part of the defence to a charge alleging the commission of that offence. Indeed, the decision in Ocean Technology did just that: it addressed the constitutionality of the offence-creating provision but in so doing concluded that upon a proper construction of the Ordinance in question, the validity of the licensing scheme was not a constituent part of that offence. In this case, by contrast, it could hardly be suggested that the validity of the notice under s. 63 is not a constituent element of the offence.”

17.  In my view, it is plain that the respondent is entitled to challenge, by way of defence to the charge of displaying bill or poster on Government land without permission contrary to Section 104A(1)(b) and (2), the constitutionality of Section 104A itself. Such challenge can be mounted regardless of the lawfulness or validity of any permission scheme which may be operated by the Director under Section 104A(1)(b). No question of any “collateral” challenge to such permission scheme is involved in relation to the respondent’s direct challenge to the constitutionality of Section 104A.

QUESTION (2): WHETHER SECTION 104A(1)( b) and (2) is unconstitutional because of inconsistency with BL 27 and BoRs 16 and 17

18.  At the time when the Magistrate made his ruling on 30 January 2015 that Section 104A(1)(b) and (2) was unconstitutional, the Magistrate had before him the judgment of Poon J (as he then was) in Chee Fei Ming v Director of Food and Environment Hygiene [2014] 5 HKLRD 771 (handed down on 15 October 2014).  That case concerned two challenges (HCAL 73 and 110/2013), by way of judicial review, to the constitutionality of Sections 104A and 104C, the contention being, as in the present case, that the restrictions imposed by those sections infringed the freedom of demonstration, assembly and speech as protected by BL 27 and BORs 16 and 17.  Pausing here, it may be noted that the applicant (Chee Fei Ming) in HCAL 73/2013 was substituted by the respondent (Pun Lin Fa) in the present appeal pursuant to a consent order dated 13 October 2014.

19.  Poon J held, after a rolled-up hearing in which the leave and substantive stages of the judicial review applications were heard at the same time, inter alia, that:-

(1) Section 104A(1)(b) was constitutionally valid in that (i) the regulatory scheme under Part IX of the Ordinance for the display of publicity materials, of which the Management Scheme devised for regulating the display of roadside publicity materials formed a key component, served legitimate aims, (ii) the requirement of permission from the Director being obtained prior to the display of publicity materials was rationally connected with those aims, and (iii) such requirement was no more than necessary to accomplish those aims (see paragraphs 122 and 139 of Poon J’s judgment); and

(2) Section 104C(1) was similarly constitutionally valid (see paragraph 144 of Poon J’s judgment).

20.  Notwithstanding this judgment of Poon J, the Magistrate held that Section 104A(1)(b) and (2) was not constitutionally valid.  In particular, he held that the restriction imposed by that section on the freedom of expression, assembly and demonstration failed the “prescribed by law” requirement and the “proportionality” test.  The reasoning which led to the Magistrate refusing to follow the judgment of Poon J is not clearly expressed and is difficult to follow.  Doing the best that I can from the case stated by the Magistrate, he seems to be saying that (i) Poon J did not consider the situation of an individual applicant who, not being a LegCo member or District Council member, could not apply for permission under the Management Scheme, (ii) (based on the Magistrate’s inference, “推斷”) the legal representatives who represented the applicants in the judicial review proceedings did not make full submissions regarding the limitation of the Management Scheme[1], and (iii) when Poon J dealt with the second question which he posed at paragraph 114 of his judgment (namely, whether the restrictions imposed by Section 104A(1)(b) and the Management Scheme were constitutionally valid), part of his analysis, while relevant or applicable to the consideration of the validity of the Director’s powers under Section 104C to remove bills or posters displayed in contravention of Section 104A(1), might not be relevant or applicable when considering the validity of the prohibition, backed by criminal sanctions, against the display of bills or posters on Government land without permission imposed by Section 104A(2) (see paragraph 12(9) and (10) of the case stated).

21.  In my view, once the Magistrate came to the view that Poon J’s ruling that Section 104A(1)(b) was constitutionally valid formed part of the ratio decidendi of his decision (see paragraph 11(6) of the case stated), the Magistrate was duty bound, under the doctrine of stare decisis, to accept loyally Poon J’s ruling and applied it to the case in front of him.  As observed by Lord Hailsham of St Marylebone LC in Cassell v Broome [1972] AC 1027 at 1054:-

“The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier … to accept loyally the decisions of the higher tiers.”

22.  Any mistake of law which a Judge at First Instance may make can of course be corrected by the Court of Appeal.  As it was, after the Magistrate’s determination on 30 January 2015, the Court of Appeal (constituted by Cheung CJHC, Lam VP and Barma JA) handed down its judgment in Chee Fei Ming on 6 June 2016 ([2016] 3 HKLRD 412).  The Court of Appeal, while upholding Poon J on his refusal of leave on the arguments run before him, allowed the appeal and granted leave to the applicants to apply for judicial review based on new arguments raised for the first time before the Court of Appeal.  In particular, the Court of Appeal considered that two grounds to challenge the constitutionality of Section 104A were “reasonably arguable”, namely:-

(1) whether the “prescribed by law” requirement was not satisfied because Section 104A did not give any guidance on how the power on granting or withholding permission should be exercised (see paragraphs 78 to 83 of the judgment of the Court of Appeal); and

(2) whether the “proportionality” test was not satisfied having regard to criteria being applied in the approval process under the Management Scheme or in relation to cases outside the Management Scheme (see paragraphs 86 to 89 of the judgment of the Court of Appeal).

23.  Importantly for the present purpose, the Court of Appeal expressed the view that a proper determination of those questions would or might require consideration of the relevant evidence on the framework, criteria and operation of the permission scheme(s) under Section 104A(1)(b).  Thus:-

(1) In respect of the “prescribed by law” issue, the following was stated by the Court of Appeal:-

“76. Turning now to the newly added challenge that the scheme for approval does not meet the ‘prescribed by law’ requirement, we are mindful that due to the belated application for amendment of the Form 86, the Director did not have any opportunity to put forward the relevant evidence pertaining to this issue. As mentioned, despite such handicap Mr Yu did not ask for an adjournment to put in further evidence to resist the appeal against refusal of leave. Counsel was content to advance arguments against the grant of leave on existing materials. Having said that, it does not mean that the Director would not file further evidence if we decide to grant leave.

77. Having heard and considered the submissions of Mr Harris and Mr Yu, we decide that we should grant leave for this line of argument to be canvassed by way judicial review and we would remit the cases to the Court of First Instance. In light of our decision and the possibility of further evidence being filed, we shall be very brief in our reasons on this aspect.

…

81. But it is reasonably arguable (and we put it no higher than that) that the ‘prescribed by law’ requirement is not satisfied by a potential organizer simply being told that approval is required under Section 104A. An important facet of this requirement is that a norm must be formulated with sufficient precision to enable a citizen to regulate his conduct so that he is able, with legal advice if necessary, to foresee the consequences which a course of action will entail…

82. Notwithstanding the efforts of Mr Yu, we are of the view that it is reasonably arguable (again we put it no higher than that) that the existing framework for approval does not meet this requirement. Handicapped by the way in which the argument was developed, Mr Yu understandably could not tell us whether the conditions for approval would be more stringent or more relaxed in respect of spots not managed by the Lands Department. On the existing materials, we do not know to what extent approval would be granted or withheld by reference to the contents of the poster or bill and the criteria to be applied in vetting the contents (if they are relevant). The Director may address these issues in the evidence to be filed.

83. Since we are only considering the matter in the context of leave without any assurance that all material information is before us, we should not say more than what is necessary.  It suffices for us to state that we are satisfied that the Applicants meet the Chan Po Fun threshold in this respect.”

(2) In respect of the “proportionality” issue, the following was stated by the Court of Appeal:-

“86. However, with the addition of a challenge based on the ‘prescribed by law’ requirement, the contents of the discretion in the approval process assumed a greater emphasis and significance in the application of the proportionality test. It is reasonably arguable that the outcome on the application of proportionality test would be different if the discretion is exercised solely by reference considerations like road safety and streetscape, fair and equal allocation of public space for dissemination of information, as compared with the situation where the discretion is exercised in a manner which amounts in substance to censorship on materials that could be displayed in public. There is no suggestion in the materials before us that the latter is the case in the application of the statutory scheme in Hong Kong. We only make this comparison to demonstrate the relevance of the criteria and procedure for approval in the context of proportionality.

87. Based on the provisions in the Management Scheme, Mr Harris submitted that approval for non-designated spots would likewise involve examination of the content of the banners. Though content-screening is not per se unjustifiable (see R (Core Issues Trust) v Transport for London [2014] EWCA Civ 34), whether it is proportionate will depend on the criteria to be applied for screening. We do not have adequate evidence in this regard at the moment. On the existing materials, based on the provisions in the Management Scheme it is reasonably arguable that FLG’s members could not obtain approval for the display of their banners.

88. The Amended Form 86 did not advance a clear challenge in this regard though there were some references to the inadequacies of the Management Scheme. As a result, we are not satisfied that all relevant evidence on the processing of applications for approval in respect of display at spots other than those managed by the Lands Department under the management scheme is before us.

89 In the circumstances, though we are in agreement with the Judge on his analysis on proportionality as argued before him, the Judge had not focused on the new argument on proportionality.  With the new focus, we are satisfied that on existing materials the argument on proportionality is reasonably arguable. Thus, we shall also grant leave for this ground to be canvassed.”

24.  In the result, the Court of Appeal remitted the applications for judicial review, limited to the new grounds mentioned above, to the Court of First Instance for fresh determination.

25.  The applicants in the judicial review proceedings subsequently applied to the Court of Final Appeal for leave to appeal against the Court of Appeal’s decision to uphold Poon J’s decision in respect of the original grounds relied upon by them in their applications for leave to apply for judicial review (FAMV 42 and 43/2016, 13 February 2017).  The Appeal Committee of the Court of Final Appeal adjourned the applicants’ application for leave to appeal pending the outcome of the proceedings remitted by the Court of Appeal to the Court of Final Instance.  Relevantly for the present purpose, the Appeal Committee also seemed to consider that fresh evidence would be required for a proper determination of the new grounds of judicial review permitted to be run by the Court of Appeal: see paragraphs 11 and 12 of the Appeal Committee’s Determination.

26.  It was in the light of the above observations by the Court of Appeal that both Mr Man (for the Secretary for Justice) and Ms Wong (for the respondent) accepted at the hearing of the present appeal that the question of the constitutionality of Section 104A(1)(b) and (2) could not be determined by the court without consideration of the relevant evidence on the framework, criteria and operation of the permission scheme(s) under Section 104A(1)(b).  In view of the fact that this appeal comes before this court by way of cased stated, the relevant evidence is not before the court.  In the circumstances, I consider that the matter should be remitted to another magistrate for fresh consideration.

27.  I also consider that the Magistrate was wrong to treat Question 2 as a preliminary issue of law which could be determined without consideration of the evidence relevant to that issue.  Ms Wong submits that, having regard to the arguments advanced by the prosecution before the Magistrate, he correctly answered Question (2).  I do not accept this submission.  If one were to look at the position as it was at the time of the Magistrate’s determination on 30 January 2015, for reasons mentioned above, I am of the view that the Magistrate ought to have considered himself bound by the decision of Poon J and ruled accordingly. In any event, this court has now before it the judgments of the Court of Appeal and Court of Final Appeal and must be guided by those judgments when deciding how the present appeal should be disposed of.

disposition

28.  For the foregoing reasons, I hold that:-

(1) in respect of Question (1), the Magistrate’s answer is correct; and

(2) in respect of Question (2), the Magistrate did not have sufficient evidence before him to enable him to properly determine that question and he should have declined to deal with it as a preliminary issue of law.

29.  Accordingly, the Magistrate’s answer to Question (2) is set aside, and that question is remitted to another magistrate for fresh consideration.  I have been given to understand by Mr Man that the prosecution may apply to the magistrate for an adjournment of the fresh determination of Question (2) pending the outcome of the judicial review proceedings mentioned above.  Although this appears to me to be an appropriate course to take, it is a case management issue to be decided by the magistrate assigned to deal with this matter.