CHEUNG TAK WING v. DIRECTOR OF ADMINISTRATION

CACV 577/2018

[2020] HKCA 604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 577 OF 2018

(ON APPEAL FROM HCAL 136/2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

A. Introduction

1.  This Court handed down a judgment on 14 February 2020 ([2020] 1 HKLRD 906; [2020] HKCA 124) (the “CA Judgment”), allowing the appeal of the Director of Administration (the “Director”) and setting aside the judgment of Au J (as he then was) in [2018] 5 HKLRD 740; [2018] HKCFI 2557 (the “CFI Judgment”). 

2.  By a notice of motion filed on 13 March 2020, which was amended and filed on 8 May 2020 (the “Amended Notice of Motion”), the applicant applies for leave to appeal against our judgment to the Court of Final Appeal.  He relies on both the “great general or public importance” limb and the “or otherwise” limb.  His application is opposed by the Director.

3.  The relevant criteria for granting leave to appeal to the Court of Final Appeal are set out in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484):

“ An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court [of Final Appeal] for decision.”

4.  Having considered the written submissions, we take the view that the applicant’s application can be properly disposed of without an oral hearing.  This is our determination of the application. 

B.    The Amended Notice of Motion

5.  In the Amended Notice of Motion, the applicant has raised the following 10 questions which he contends to be of great general or public importance or which otherwise ought to be submitted to the Court of Final Appeal for decision:

(a)  Question 1: “Where, as in this case, the Director of Administration’s Scheme (“Permission Scheme”) for the holding of public order events in the Forecourt of the CGO expressly precludes the holding of such events other than on a Sunday or a public holiday irrespective of the number of persons proposed to attend and where, as in this case, the applicant’s application was rejected solely on the ground that the proposed event was to be held on a day other than a Sunday or a public holiday, whether the Court of Appeal erred in law by holding that the Permission Scheme as general policy is proportionate, thereby only examining proportionality at the policy level by reference to the Permission Scheme and failing to assess proportionality at the enforcement level by reference to the actual implementation or enforcement of the Permission Scheme on the facts and specific circumstances of the applicant’s application.”

(b)  Question 2: “Whether the lack of discretion at all levels fail to satisfy the proportionality analysis.”

(c)  Question 3: “Whether an omission to state the said discretion (“Omission”) in the Permission Scheme and/or to state the considerations relevant to the exercise of the discretion such as maximum number of people attending, proposed duration of the event and any other conditions for exercise of permission is in breach of the principle of legality.”

(d)  Question 4: “Whether the Permission Scheme fails to satisfy the prescribed by law test due to the Omission.”

(e)  Question 5: “Whether, in a judicial review challenge on a scheme or decision for unconstitutionality, the question is that the decision-maker had properly considered whether the applicant’s rights would be violated by reference to the proportionality test.”

(f)  Question 6: “Whether proportionality test is the only basis for challenging a restriction on freedom of expression or whether the Permission Scheme restricting such freedom can be challenged on conventional Judicial Review Grounds as well such as fettering of discretion or irrationality.”

(g)  Question 6A: “Whether the nature and function of the CGO (of which the Forecourt is a part) render the Permission Scheme a disproportionate restriction in that it places undue emphasis on ensuring that the operation of the CGO would be free from interference, which results in the absolute prohibition of any meeting or procession to be held in the Forecourt on a day other than a Sunday or a Public Holiday irrespective of the number of participants.”

(h)  Question 7: “Whether the restrictions under the Permission Scheme are sufficiently certain and the consequences are adequately foreseeable so as to justify the restrictions on the rights to freedom of expression and peaceful assembly as being prescribed by law.”

(i)  Question 8: “Whether the Permission Scheme as a set of administrative guidelines can form the legal basis for the Decision.”

(j)  Question 9: “Whether the existence of alternative venues is irrelevant in the subject proportionality analysis as the restrictions under challenge are ones in relation to the exercise of the rights to freedom of speech and assembly at the Forecourt, and in any case, the alternative venues are not effective alternatives.”

6.  These 10 questions are dealt with below in the order as they are presented in the parties’ written submissions.

C.    Question 6A

7.  Question 6A goes to the proportionality analysis.  In the written submissions, the applicant contends that:

(a)  As the CGO is “the heart of the executive branch”, the government officials working there should listen to the views of the public.  This court, however, placed “disproportionate emphasis” on the government’s “duty of care as to the safety and well-being of those working at and visiting the CGO”.

(b)  Moreover, the Forecourt is “not part of the entrance for those working in the CGO”, as the layout plan refers to the entrances on the East Wing ground floor as “Public Entrance” and “Press Entrance” and the government press releases suggest that the staff entrance is on the second floor of the East Wing.  As such, short of anyone storming the building, those working at the CGO are not at risk.  The restriction is “no more than necessary to accomplish the legitimate aim of ensuring that the operation of the CGO would be free from interference or undue interference on working days”.

(c)  This court’s decision, which resulted in the absolute prohibition of any meeting or procession to be held in the Forecourt on a day other than a Sunday or a Public Holiday irrespective of the number of participants, is inconsistent with HKSAR v Fong Kwok Shan (2017) 20 HKCFAR 425.

8.  We do not agree that Question 6A raises any question of great general or public importance. 

9.  First, there is no dispute between the parties on the applicable legal principles regarding the proportionality test and the applicability of such test to the CGO in accordance with the judgment in Fong Kwok Shan.

10.  Second, the Applicant rightly accepted that the Director has management responsibility in respect of the Forecourt by imposing restrictions and conditions.  It is also undisputed that the Forecourt is a vehicular circulation area for passenger drop off and pick up and for persons arriving by car at the East Wing entrance of the CGO.  Thus, the legitimate concern of the Director is not confined to the risk to the staff but also other visitors and users of the Forecourt for business in the CGO.

11.  The applicant’s contention that the Forecourt is not part of the staff entrance was not an argument run previously.  The Director disputed the same as a matter of fact.  In any event, regardless of whether there is another entrance for staff, the Director has a responsibility to, inter alia, maintain the normal operation of the Forecourt as a passageway and “take precautions so that the designated functions of the Forecourt are not compromised by other activities permitted to be carried out at the Forecourt”[1].

12.  Third, this Court has taken into account the nature of the CGO as “the heart of the executive branch” and has considered the importance of expressing views at the time when Government officials are working as opposed to expressing views on non-working days[2].  The “manner and form” of exercising the right of freedom of expression and demonstration was also taken into account[3].

13.  On the other hand, this has to be balanced against the potential risks of disruption to the operation of the CGO during working days.  Having taken into account the other avenues for demonstrations and petitions at or in the vicinity of the CGO (including the designed public activity area (“DPAA”), which is “no less effective as a demonstration locality in terms of proximity to the CGO”)[4], this court concluded that the Permission Scheme satisfies the proportionality test.

14.  Viewed thus, in contending that this Court placed “undue emphasis on ensuring that the operation of the CGO would be free from interference” and that this court placed “disproportionate emphasis” on the government’s “duty of care as to the safety and well-being of those working at and visiting the CGO”, Question 6A essentially boils down to the weight placed by this court on competing factors when performing the proportionality analysis on the facts of this case, and asks whether this court has applied the legal principles to the facts of the case correctly.  This does not raise any legal question of great general or public importance as the applicant suggested.

15.  We had explained how we applied Fong Kwok Shan in the present context and in our proportionality analysis manner and form and impact of demonstration at the site in question was taken into account.  We are not persuaded by the applicant’s submissions that there is any reasonable argument that our assessment was contradictory to the judgment of Ribeiro PJ in that case.

16.  As to the applicant’s contention that the consequence of this court’s holding is that it is “impossible for a demonstration or protest to take place at the Forecourt on a day other than a Sunday or Public Holiday” and this amounts to an “absolute prohibition on the direct expression of opinions to public officials during their working hours”, this is also misconceived.  This line of argument ignores this court’s other holdings that (i) there are “substantial equivalence of other effective means available at or in the vicinity of the CGO” and (ii) the enforcement of the restriction would be “subject to another level of individualised and nuanced assessments” on proportionality[5].

17.  For the above reasons, we decline to grant leave to appeal to the Court of Final Appeal with respect to Question 6A.

D.   Question 1

18.  By Question 1, the applicant contends that this Court only considered proportionality at the policy level but erred in failing to consider proportionality at the enforcement level. 

19.  With respect, the applicant’s proportionality challenge had all along been directed at the Permission Scheme at the policy level but not at the enforcement level. 

20.  First, the applicant’s grounds of his proportionality challenge as set out in the Amended Form 86 at [125]-[138] were directed at the policy level only.  There was no plea in the Amended Form 86 to the effect that even if the Permission Scheme is constitutional, the Decision itself (i.e. the Director’s administration of the Permission Scheme in relation to the applicant’s application for permission for a particular occasion) is nonetheless unconstitutional for failing the proportionality test.

21.  Also, the applicant’s skeleton submissions dated 1 August 2019 (for the substantive hearing before us) at [2] confirmed that the applicant’s challenge was directed at the Permission Scheme (i.e. at the policy level):

“ At the outset, it must be noted that the Applicant’s position has not changed since the judicial review hearing: he does not challenge the ability of the Director to have a scheme in managing the use of the Forecourt… His challenge has been directed to the specific Permission Scheme which prevented any applicant for permission to hold a public meeting or demonstration or to present a petition in the Forecourt from doing so on except on a Sunday or a public holiday even if, as in the case of the Applicant’s application, the number of participants would have been limited to a maximum of 10 persons (see Amended Form 86 [at para. 101 and paras. 133-138]) and one of the principal issues has always been whether this scheme itself satisfies the justification test, i.e. whether it is (i) prescribed by law, and (ii) not disproportionate” (emphasis added)

22.  Thus, this Court addressed the appeal on the challenge as presented by the applicant.  We do not accept that there had been a challenge on the enforcement of restriction level when none of the grounds of the applicant’s proportionality challenge in the Amended Form 86 were directed at the Director’s Decision itself (but not consequent upon the challenge of the Permission Scheme).  It also speaks volumes that the applicant is only able to identify one reference in which he argued the need for the Director to justify the Decision, and it was in the skeleton submissions in the court below but not before us.

23.  Further, as elaborated below in the context of Questions 3 and 4, proportionality on enforcement level when demonstration is held in breach of the Permission Scheme should not be conflated with the provision of a discretion not to follow the Permission Scheme in dealing with an application.

24.  For these reasons, it is not open to the applicant to seek to raise Question 1 now for the Court of Final Appeal’s decision, and we refuse to grant leave to appeal to the Court of Final Appeal for Question 1.

E.    Question 2

25.  As to Question 2, the applicant challenges this court’s decision that the Director is entitled to adopt a bright-line approach and suggests that it is inconsistent with ‘individualised and nuanced assessments’ espoused in Fong Kwok Shan. 

26.  As observed by us[6], Ribeiro PJ’s said observations were made in the context of the rejection of the “rights not applicable” argument.  Indeed, in Fong Kwok Shan, while the relevant rule in question did not provide for any exceptions, the Court of Final Appeal upheld its validity and found that it satisfied the proportionality assessment.

27.  In any event, the fact that no discretion or exception is provided in the Permission Scheme for the holding of public meetings or public processions at the Forecourt on a weekday or Saturday is only one factor which goes to the proportionality analysis.  This Court is satisfied that the Permission Scheme satisfies the proportionality test after taking into account, inter alia, that the incursion occasioned by the Permission Scheme to the right of freedom of expression and demonstration is of a limited extent, given the “substantial equivalence of other effective means available at or in the vicinity of the CGO” [7].

28.  Thus, there is no question of errors in principle.  At its core, Question 2 concerns whether this Court has applied established legal principles to the facts of the case correctly.  It does not raise any question of great general or public importance. 

29.  We decline to grant leave to appeal to the Court of Final Appeal with respect to Question 2.

F.    Questions 3-4

30.  Questions 3-4 relate to the prescribed by law requirement.  As clarified in the applicant’s skeleton submissions, the essence of the argument is that if there is any discretion to approve an application made for weekdays or Saturdays by way of exception, whether an omission to state the said discretion and/or the considerations relevant to its exercise in the Permission Scheme is inconsistent with the prescribed by law requirement.  It was not an argument advanced in the substantive appeal before us.  In the appeal, the contention of the applicant was premised on the absence of any discretion whatsoever.

31.  The premise of these new questions is that there is discretion to approve an application made for weekdays or Saturdays by way of exception.  However, as explained in the CA Judgment at [136], the Director is entitled to adopt the bright-line approach in formulating the Permission Scheme, and the Permission Scheme does not provide any exception for the holding of public meetings or public processes at the Forecourt on weekdays or Saturdays.  Questions 3 and 4 simply do not arise.

32.  The reference to proportionality on the enforcement level at [142] of the CA Judgment by reference to Kudrevicius v Lithuania (2016) 62 EHRR 34 is about the steps that the Director may take when there is a demonstration in breach of the Permission Scheme.  There was evidence before the Court that in some instances the officials involved chose to come to the Forecourt to accept petitions despite demonstrators having acted in breach of the Scheme.  Such proportionate response on enforcement should not be conflated with a discretion to approve an application by way of exception.    

33.  For the above reasons, we decline to grant leave to appeal to the Court of Final Appeal with respect to Questions 3 and 4.

G.   Questions 5-6

34.  Questions 5-6 are directed at the CA Judgment at [65], where this Court stated that:

“ 65. However, whether the Director had struck the right balance must be stressed by reference to the proportionality test. We agree with Mr Yu that in this respect, it is ultimately a question for the court. As observed by Ribeiro PJ at [130] of Hysan Development v Co Ltd v Town Planning Board,echoing Lord Hoffmann in R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [68], the Government officials cannot be expected to make the decision with textbooks on human rights law at their elbows and it is not their task to conduct proportionality analysis. See also Mayor of London v Hall [2011] 1 WLR 504 at [43] per Lord Neuberger MR.”

35.  By Question 5, the applicant says that this Court erred in relying on R (SB) v Governors of Denbigh High School (supra) and Mayor of London v Hall (supra) in holding that where there is a judicial review challenge on a scheme or decision for unconstitutionality, the question is not whether the decision-maker had properly considered whether the applicant’s rights would be violated.  The applicant contends that those caseswere based on the position in the UK under the Human Rights Act 1998 (which is not applicable to Hong Kong), and as this concerns the difference between the role of the court in human rights adjudication in Hong Kong and the UK, this question should be submitted to the Court of Final Appeal for decision.

36.  Such contention is plainly unarguable as the Court of Final Appeal had endorsed the application of the approach of R (SB) v Governors of Denbigh High School (supra) and Mayor of London v Hall (supra) of and referred to Hysan Development Co Ltd v Town Planning Board (supra) in the proportionality analysis in Hong Kong.

37.  We decline to grant leave with respect to Question 5.

38.  As to Question 6, neither Au J (as he then was) at the first instance nor this Court held that proportionality ground is the only basis for challenging a restriction on freedom of expression.  Indeed, the applicant has not sought to challenge the Permission Scheme on any “conventional Judicial Review Grounds… such as fettering of discretion or irrationality”, other than an alleged error of fact which was not made out on the evidence. 

39.  Therefore, Question 6 simply does not arise in this appeal.  No leave to appeal to the Court of Final Appeal should be granted with respect to Question 6 either.

H.   Question 7

40.  Question 7 is also directed at the prescribed by law requirement.  The applicant contends that the Permission Scheme is not sufficiently certain for a citizen to be able to foresee to a reasonable degree the consequences a given act may entail because this Court held at [112] of the CA Judgment that the Permission Scheme does not have the effect of barring solo demonstrations.

41.  With respect, we cannot see how the interpretation of the scope of the Permission Scheme by this Court could support a challenge based on the prescribed by law ground.  It is simply a matter of construction and as contended by Mr Yu SC, solo demonstrations do not constitute public meetings or public processions which are subject to regulation under the scheme.  

42.  We refuse to grant leave to appeal to the Court of Final Appeal with respect to Question 7.

I.       Question 8

43.  Question 8 is directed at whether the Permission Scheme as a set of administrative guidelines can form the legal basis for the Decision. 

44.  As this Court has clearly held in the CA Judgment at [52], “the proprietary right of the Government in respect of the Forecourt and its duty as occupier provided proper authority in law for the implementation of the Permission Scheme” and “[t]here is no need to have further statutory backing for the Permission Scheme”. 

45.  Hence, with respect, Question 8 is plainly misconceived.  No leave to appeal to the Court of Final Appeal should be granted with respect to Question 8.

J.      Question 9

46.  By Question 9, the applicant raises questions as to (i) whether the existence of alternative venues (i.e. the DPAA and Tamar Park) is relevant to the subject proportionality analysis; and (ii) whether the alternative venues are effective alternatives.

47.  The first part of the question has been discussed in detail in the CA Judgment, and the authorities in support of the relevance of alternatives are set out at [119]-[122].  This part of the question is not arguable. 

48.  As to the second part of the question, this Court has considered the alternative measures, including not only the alternative venues such as the DPAA and Tamar Park but also the measure of “the arrangements for receiving petitions by Government officials”[8]. 

49.  The applicant referred to purported shortcomings of the DPAA and Tamar Park and to challenge their effectiveness as alternative venues to the Forecourt.  The applicant also contends that there is no evidence as to who designated the area outside the Forecourt to be the DPAA and on what basis it has been declared as such.

50.  These are fact-sensitive matters and do not raise any questions of great general or public importance.  As to the designation of the DPAA, the CA Judgment at [16] has explained the legal status of the DPAA and its origin.  The legality of DPAA was not an issue within the scope of the present judicial review challenge in the Form 86.

51.  For these reasons, we decline to grant leave to appeal to the Court of Final Appeal with respect to Question 9.

K.    The “or otherwise” limb

52.  Finally, in relation to the “or otherwise” limb of the application, it is the normal practice of this Court not to grant leave on this ground, but to leave it to the Court of Final Appeal to decide if leave should be granted. 

L.     Conclusion

53.  For the above reasons, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal.

54.  Costs of the application should follow the event.  We order the applicant to pay the Director’s costs of this application.  Having considered the Director’s statement of costs for summary assessment, we order the applicant to pay the costs of the Director of this application, assessed summarily at HK$130,000 of which HK$5,000 was for the period up to 20 April 2020.