CHEE FEE MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

HCAL 73/2013

[2018] HKCFI 2031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 73 OF 2013

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HCAL 110/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO 110 OF 2013

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(Heard Together)

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J U D G M E N T

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A. Introduction

1.  These two conjoined cases have a complex procedural history.  The original applicants, Madam Chee and Mr Hung, were both adherents of Falun Gong.  Both cases have arisen from decisions taken by the Director of Food and Environmental Hygiene (“Director”) in April 2013 to remove banners being displayed at what have been described as “static demonstrations” on Government land participated in by the applicants.  The removal was carried out under s 104C of the Public Health and Municipal Services Ordinance (Cap 132) (“Ordinance”).  That section authorises the removal of bills and posters displayed on Government land without prior approval obtained from the Director under s 104A. 

2.  After Madam Chee passed away in May 2014, Ms Pun was substituted as the applicant in HCAL 73/2013.  Leave to apply for judicial review was refused by Poon J (as he then was) after a “rolled‑up hearing”[1] but, on appeal, the Court of Appeal[2], whilst affirming Poon J’s decision on the grounds argued before him, granted the applicants leave on two grounds which had not been raised or raised in the same way before Poon J, and remitted the case to the Court of First Instance.  This is my decision on the application for judicial review as confined to those two grounds, both of which concern the constitutionality of s 104A.

B.   Facts

3.  The principal relevant facts have been set out in §§3, 4 and 9‑28 of Poon J’s judgment, which I gratefully adopt and set out as follows (including the two footnotes at §§11 and 22(2)):

“ 3. The applicants in these judicial review proceedings are Falun Gong (“FLG”) practitioners. They and other fellow FLG practitioners have for years been staging what they describe as “static demonstrations” at various locations in public places that fall within the Director’s purview under section 104A(1)(b). According to surveillance conducted by the Food and Environmental and Hygiene Department (“FEHD”) in March 2013, there are 26 of such locations all over Hong Kong where the FLG practitioners hold the static demonstrations (“the 26 Locations”).

4. Publicity materials falling within section 104A(1) of the Ordinance are always displayed on the 26 Locations for the purpose of the FLG static demonstrations. But no permission has ever been obtained from either the Director under section 104A(1)(b) or LD under the Management Scheme for displaying the publicity materials at any of the 26 Locations. Indeed, no application for permission to do so has ever been made to either the Director or LD. It is because the FLG demonstrators adamantly regard such application as an unreasonable and unnecessary restriction of the lawful exercise of their freedoms of demonstration, assembly and speech as guaranteed by the Basic Law and the Hong Kong Bill of Rights.

……

9. FLG is a Buddhist movement first started in the Mainland in 1992. It has since attracted many followers both in the Mainland and overseas. In about 1999, FLG was branded as a cult by the Mainland authority. Since then, FLG practitioners have staged demonstrations in different places overseas to protest against what they perceive as persecutions of fellow FLG practitioners in the Mainland.

10. In Hong Kong, FLG practitioners have been staging static demonstrations at the 26 Locations which they refer to as “truth clarification sites” for years. The sites are manned by individual or several FLG members. Typically, banners, placards or billboards are affixed to the railings or other fixed objects on the roadsides at fixed hours or even around clock. Some of the banners, placards or billboards are sometimes free standing or fixed to portable frames. During the static demonstrations, an individual or a group of FLG practitioners stand or gather in front of the displayed materials, which form the backdrop of the demonstrations. Occasionally the demonstrators distribute pamphlets to the public. The demonstrations usually last for hours. At some of the locations, the banners, placards or billboards are removed after the demonstrations. But at some other locations, the materials are simply left at the scene and continue to be displayed there around the clock.

11. The applicants did not go to all the 26 Locations to join the static demonstrations. They only went to some of them.[3]

12. Mr Hung attended 3 of the 26 Locations only. They were situated at (a) the exterior wall of Exit D2 of Sham Shui Po MTR Station and the public area nearby (“the SSP Site”); (b) railing and public outside Wai Fung Plaza, Argyle Street (“the AS-WFP Site”); (c) the pedestrian precinct in Sai Yeung Choi Street near Shan Tung Street (“the SYCSS Site”). It was Mr Hung who “managed” them. According to him:

(1) At the SSP Site, the FLG demonstrators had not affixed any of the banners or placards to any roadside railings but to their own loose portable frameworks. The frameworks were then placed adjacent to the external walls of the MTR exit and the subway entrance during the demonstration. Mr Hung was responsible for the setting up and removal of the demonstration materials. Demonstrations have been carried out there since 2001.

(2) At the AS‑WFP Site, small size placards are temporarily affixed to the railings during the demonstration. They were removed after the demonstration. Demonstrations have been carried out at the Site since 2007.

(3) At the SYCSS Site, the banners and placards were not affixed to any roadside railings. The FLG demonstrators placed them within the pedestrian precinct near the pavement. The materials were removed after the demonstration. Demonstrations have been carried out at the Site since 2006.

13. Mr Hung had no responsibility for the demonstrations at other locations.

14. Madam Chee joined the static demonstrations at 10 different locations at Sai Wan, Tsim Sha Tsui, Mongkok, Wong Tai Sin and Lok Ma Chau by mainly distributing pamphlets to the public. She herself was not responsible for displaying the banners, placards or billboards at any of the locations that she attends. On the evidence before me, it is not clear as to who is responsible for so doing.

15. It is not in dispute that none of the 13 locations that the applicants attended is the roadside designated spot under the Management Scheme, which means that the Management Scheme has no application to them at all. As to the other 13 locations which the applicants did not attend, it is not clear from the evidence if the Management Scheme applies.

B2. HKYC demonstrations

16. The static demonstrations by the FLG members were by and large peaceful and orderly.

17. However, since June 2012, an organization called Hong Kong Youth Care Association (“HKYC”) has been campaigning against FLG. They staged demonstrations regularly against FLG at some of the 26 Locations, including the three Sites managed by Mr Hung. The FLG demonstrators including the applicants considered the actions taken by HKYC members at their demonstrations hostile because:

(1) they displayed banners hostile to FLG, often in close proximity to the FLG banners obstructing the public’s view of the latter;

(2) they harassed, threatened and intimidated FLG demonstrators by shouting abuse at them;

(3) they placed loudspeakers set at high volume very close to FLG demonstrators, thereby causing severe discomfort; and

(4) a HKYC supporter had on one occasion brandished a knife at a reporter at a FLG demonstration.

18. The FLG demonstrators complained that the HKYC’s activities had resulted in nuisance and annoyance, both to them and occasionally to members of the public in the vicinity.

B3. Enforcement actions

19. Since mid‑2012, FEHD had received a large number of public complaints in respect of the unauthorized display of publicity materials by FLG and HKYC. Following up on the complaints, FEHD conducted investigations, which revealed that FLG and HKYC displayed their publicity materials very close to each other and that there had been much disputes and even physical acts of confrontation between members of FLG and HKYC.

20. Between October 2012 and February 2013, The Ombudsman also received complaints from some members of the public and 東堤灣畔住宅業主附屬委員會 against FEHD about the prevalent unauthorized display of publicity materials by FLG and HKYC in public areas and the apparent inadequacy of enforcement actions taken by FEHD. The Ombudsman issued three investigation reports in May 2013 in which the Ombudsman found that the complaints were partially substantiated.

21. In the meantime, the prevalence of unauthorized display of publicity materials had also caught the attention of a LegCo member who raised his concern at a LegCo meeting on 9 January 2013.

22. In light of these developments, FEHD decided to step up the enforcements actions against FLG and HKYC in respect of their unauthorized display of publicity materials. Prior notice that enforcement actions would be undertaken was given by :

(1) a press release issued by the Government on 2 April 2013 announcing that the relevant authority would step up enforcement against unauthorized display of publicity materials in public places;

(2) warning letters issued to the Hong Kong Association of Falun Dafa[4] (“FLG Association”) and HKYC on 2 April 2013; and

(3) warning letters fixed on the unauthorized materials displayed by FLG and HKYC on 5 April 2013, stating that FEHD intended to take enforcement action without further notice.

23. A few days later, HKYC began to remove their displays.

24. However, the FLG demonstrators refused to heed FEHD’s warnings.

25. On 8 April 2013, 5 representatives of FLG practitioners, namely, Mr Chow Wai Tung, Ms Liu Chau Lan (“Ms Liu”), Ms Chau Sing, Ms Ho Lai Ha and Mr Hui Kwok Hung (“Mr Hui”) met with FEHD’s Senior Superintendent KK Lam to discuss the matter. The applicants’ case is that the FLG representatives explained to Inspector Lam that they believed that their displays were a lawful exercise of free speech and of the right to demonstrate, and for this reason FEHD should not take enforcement action against the displays under the Ordinance. They also asked for a stay of the enforcement action until their stance had been made known to the Director. Senior Superintendent Lam told the FLG representatives that he would explain the position to his superiors but he could not make any promise in relation to the pending enforcement action. He further asked for a note summarizing FLG’s legal position on the displays as explained in the meeting (“the Note”), so that he could explain it more easily to his superiors.

26. On 12 April 2013, FEHD commenced enforcement action and removed the publicity materials from the FLG demonstrations sites.

27. On 15 April 2013, Ms Liu handed the Note to Senior Superintendent Lam. She asked him why enforcement action was being taken without a response from FEHD to the points made at the meeting on 8 April 2013. In reply, Senior Superintendent Lam said legal advice had been obtained. In a further written reply to another of the 5 representatives dated 22 April 2012, Senior Superintendent Lam stated that all activity organizers must obtain permission from LD for displays of materials on roadsides.

28. FLG representatives held another meeting with FEHD’s Superintendent KK Lai on 10 May 2013.  The applicants’ case is that FLG representatives went through the points in the Note one by one and queried why enforcement was necessary.  Superintendent Lai reiterated that the enforcement action was necessary as the displays without permission contravened section 104A of the Ordinance.  FLG representatives sought clarification on the degree of tightening up of enforcement by FHED.  Superintendent Lai confirmed that all displays would be subject to enforcement except hand‑held displays not touching the ground.  However, once such hand‑held displays touched the ground, it would also be subject to enforcement action.”

4.  The Management Scheme referred to in §15 quoted above is a scheme adopted by the Lands Department.  As explained by Poon J at §2 of his judgment, by virtue of s 142 of the Ordinance, the Director had since 2003 delegated all his functions and powers under s 104A(1)(b) to certain specified categories of officers of the Lands Department (namely, Chief Estate Surveyor, Senior Land Executive and Principal Survey Officer (Estate)), without however precluding the Director from himself exercising or performing at any time any of the powers or functions so delegated.

5.  For the purpose of carrying out the delegated functions, the Lands Department has devised and adopted a “Management Scheme for the Display of Roadside Non‑commercial Publicity Materials Implementation Guidelines” (“Management Scheme”) for the purpose of processing applications for permission to display such materials on public roadsides under s 104A(1)(b).  As its name suggests, the Management Scheme only covers locations on public roadsides designated for displaying non‑commercial publicity materials.  It does not encompass all Government land that falls within s 104A(1)(b).  The content of the Management Scheme is described in §§25‑32 below.

6.  As the delegation to the Lands Department does not have any geographical limitation, for Government land not covered by the Management Scheme, the powers and functions under s 104A(1)(b) remain to be exercised either by the Director or by the relevant Lands Department officials, albeit not pursuant to the Management Scheme.[5]

C.   Decisions challenged

7.  By these applications for judicial review, the applicants seek to impugn, amongst others, the following decisions made by the Director and the Secretary for Justice (the “Decisions” collectively):

(1)   the decision taken on or before 12 April 2013 to remove banners and placards from the Falun Gong demonstration locations on the ground that their display was in breach of s 104A;

(2)   the decision implemented on 24 April 2013 to confiscate demonstration banners and placards, and portable frames on which they were displayed, from the applicants; and

(3)   the decision taken on or after 10 May 2013 to continue to remove banners and placards from Falun Gong demonstration locations on the ground that their display was in breach of s 104A.

8.  The Director and Secretary for Justice are the respondents while the Lands Department has been named the interested party. They have been jointly represented throughout and for convenience I shall refer to them collectively as the “respondents”.

9.  The applicants contend that the Decisions constituted an infringement of Art. 16 of the Hong Kong Bill of Rights (“Bill of Rights”) which protects the freedom of expression, Art. 17 of the Bill of Rights which protects the freedom of assembly, and Art. 27 of the Basic Law which protects, inter alia, the freedom of demonstration. The grounds of their applications will be described below after I have set out the procedural history.

D.   Constitutional and Statutory Framework

Legislative provisions of the Public Health and Municipal Services Ordinance

10.  The relevant provisions in the Ordinance is contained in Part IX (Advertisements, Decorations and Signs) which contains ss 104, 104A to 104E and 105.  As Poon J explained in his judgment at §51, ss 104A to 104E were introduced into the Ordinance as a package in 1980 to tighten the then ineffectual controls over environmental nuisance caused by indiscriminate posting of bills and posters.

11.  S 104A provides:

“ (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 Authority.

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

12.  The “Authority” is defined in s 104E(1) as meaning various authorities or statutory bodies respectively depending on the responsibility for the land in question.  S 104E(1)(f) encompasses the general and residual category for land not covered by the other paragraphs, where the Authority is specified to be the Director.

13.  The phrase “bill or poster” is defined in s 104E(4) to include:

“ any word, letter, model, sign, placard, board, notice, device or representation and also includes any advertisement painted on any wall, fence, railing, post, rock, road‑cutting or tree but does not include any structure, apparatus or hoarding used for the display of a bill or poster”.

14.  “Land” is defined to include:

“ (a) any building or other erection on land, whether a fixture or not; (b) any tree, rock or other natural part of land; and (c) land covered by water”.

15.  S 104B(1) requires bills and posters displayed on any private land or Government land to be maintained in a clean and tidy condition to the reasonable satisfaction of the Authority.  Subsection (2) renders any contravention an offence.

16.  S 104C(1) provides:

“ (1) Where—

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

(b) a bill or poster is not maintained in a clean and tidy condition as required under section 104B(1),

the Authority 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.”

17.  Where a person has committed an offence under s 104A(1), s 104D(1) extends criminal liability to any other person who uses the former to display or affix the bill or poster and any person whose goods, trade, business or other concerns are given publicity by the bill or poster.  S 104D(2) provides that a person is deemed to display a bill or poster if the bill or poster is displayed on land of which he is the owner or occupier, or the bill or poster gives publicity to his goods, trade, business or other concerns.

18.  In short, so far as relevant on the facts of this case, the principal effect of these provisions is that prior written permission of the Director has to be obtained for any bill or poster to be displayed or affixed on any Government land (s 104A(1)(b)); otherwise the person responsible is guilty of an offence (s 104A(2)) and the Director may remove the bill or poster and recover the cost of removal from him (s 104C(1)(a)).

19.  I was told that both original applicants had been charged with an offence under s 104A(2) although they had not been tried, with Mr Hung’s trial now pending the outcome of these judicial review proceedings.

Provisions of the Bill of Rights and Basic Law

20.  Art. 16(2) and (3) of the Bill of Rights provides:

“ (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary—

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

21.  Art. 17 of the Bill of Rights provides:

“ The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

22.  Art. 27 of the Basic Law provides:

“ Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

23.  Art. 39 of the Basic Law provides, inter alia, that the rights and freedoms enjoyed by Hong Kong residents “shall not be restricted unless as prescribed by law.”

E.   Management Scheme

24.  As mentioned in §4 above, the Director had delegated all his functions and powers under s 104A to the Lands Department albeit without precluding himself from exercising or performing them.  The genesis of the Management Scheme, which was devised by the Lands Department, was set out by Poon J in his judgment at §§64‑71 which I shall not repeat.  The version that is relevant to these proceedings is the one as revised in August 2011.

25.  In essence, the Management Scheme designates a number of roadside spots for the display of non‑commercial publicity materials, specifies the objectives and priorities in allocating such spots to various categories of persons, and provides for a mechanism for applying for approval under s 104A(1)(b) for the display of such materials.

26.  The designated spots are all located on roadside excluding expressways, flyovers and the external faces of footbridges (see Part 5).  These spots were identified and chosen in consultation with various government departments and District Councils.  As at 2012 there were a total of 22,649 designated spots spread over the whole of Hong Kong.  Their locations are not available on the Internet but a list of them can be obtained from the District Lands Office in each district.

27.  The objective of the Management Scheme is stated in Part 1 as follows:

“ The display of bills and posters on Government land including display of roadside publicity materials is an offence unless such display is with the written permission of the Authority by virtue of section 104A(1) of the Public Health and Municipal Services Ordinance, Cap. 132. The Management Scheme aims at ensuring that the display of roadside publicity materials:

(a) is for the purpose of the promotion of public awareness of matters of general and significant community interests of non‑commercial nature. In this connection, priority will be given to such display which is by Legislative Council (LegCo) and District Council (DC) Members to communicate with their constituents, which seeks to promote public awareness or participation in matters of district administration and community building, and which is by the Government to promote important public events and campaigns such as the East Asian Games, ‘Keep Hong Kong Clean’ and ‘Anti‑Drug Abuse’;

(b) is permitted in an orderly fashion for those classes of persons specified in the Management Scheme at spots designated by the Authority;

(c) will not prejudice the safety of pedestrians and motorists using the road concerned; and

(d) is subject to such other terms and conditions provided in the Management Scheme such as the maintenance and removal of the banners.” (emphasis added)

28.  Part 2 sets out the classes of persons who may be allocated designated spots and the number of spots reserved for each class.  Thus application may be made by members of the Legislative Council and District Councils, by District Councils and their committees, by government departments and “by non‑profit making bodies for the display of publicity materials serving the local community”.  Ballots may be conducted by the District Lands Office to allocate the designated spots, if necessary (Part 2(c)).  Each successful applicant will be allocated a maximum of five designated spots (Part 2(e)(iii)).

29.  Applications have to be submitted to the relevant District Lands Office no later than one month before the intended display period, although urgent applications with justifications under special circumstances will also be processed (Part 8(a)). Permission granted to non‑profit making bodies will cover a period of two calendar months less the last two days although applications for extension may be granted provided there is no prejudice to other applicants (Part 3).  Part 4 regulates the size of the publicity materials, which shall not exceed 1 metre in height and 2.5 metres in length.

30.  Part 7, which deals with the content of the publicity materials, provides:

“ (a) The display of roadside publicity materials is for the purpose of the promotion of public awareness of matters of general and significant community interest of non-commercial nature. In this connection, priority will be given to such display:

(i) which is by LegCo and DC Members to communicate with their constituents, which seeks to promote public awareness or participation in matters of district administration and community building; and

(ii) which is by the Government to promote important public events and campaigns such as the East Asia Games, ‘Keep Hong Kong Clean’ and ‘Anti‑Drug Abuse’;

(b) the information imparted must comply with the requirements below:

(i) the information must not promote any commodities, services provided at a fee, fee paying training courses and activities. (However, the restriction does not apply to services, training courses and activities co‑organised by government departments. For these cases, written confirmation from concerned government departments is required);

(ii) there should be conspicuous and clear indication on the display itself of the individual or organisation allocated the spot. The individual or organisation must be the chief beneficiary of the display;

(iii) publicity materials containing names and logos of commercial firms or non-profit making bodies such as the Community Chest sponsoring non‑profit making public activities are subject to the prior approval of the District Lands Officer and the aggregate size of the names and logos of the sponsors shall not be larger than one tenth of the area of the publicity material;

(iv) the contents of the publicity materials to be displayed shall be in compliance with the laws of the Hong Kong Special Administrative Region. No publicity materials of an obscene or objectionable nature shall be displayed; and

(v) no commercial advertisement shall be permitted.

(c) The grant of a permission does not imply any endorsement or approval of the contents of the publicity materials by the Government of the Hong Kong Special Administrative Region or its officers.” (emphasis added)

31.  It will be noted that, so far as relevant for present purposes, the Management Scheme has two limitations: first, it covers only designated roadside spots; secondly, an individual cannot apply for permission under the scheme except a Legislative Council or District Council member.  See §§92-93 below.

F.   Procedural history

32.  To understand the scope and limit of the grounds relied on and the arguments before me, it is necessary to examine the relevant contentions advanced before and the decisions of Poon J and the Court of Appeal on appeal from his Lordship.

33.  As summarised by Poon J,[6] there were four grounds raised before him for judicial review, only two of which need be mentioned here, namely, (1) that the Decisions were unconstitutional in that they unlawfully infringed the applicants’ freedoms of demonstration, assembly and speech; and (2) that they were unconstitutional insofar as they were taken because of public order problems created by persons opposed to the applicants’ demonstrations and/or to other peaceful demonstrations by Falun Gong practitioners.

34.  On the question of constitutionality, Poon J considered that the regulatory scheme in Part IX of the Ordinance together with the Management Scheme served a number of legitimate aims.[7] His Lordship considered that s 104A, requiring permission for display of bills or posters, and s 104C, empowering the Director to remove materials displayed without such permission, did impose restrictions on a person’s exercise of his freedom of expression, assembly and demonstration.[8]

35.  While the applicants’ constitutionality attack was focussed on s 104A, Poon J considered that s 104C was a “free‑standing” provision and that the real question was whether s 104C, considered on its own, was constitutionally justified,[9] a question which he answered in the affirmative.[10]  Poon J also considered, obiter, the applicants’ argument that s 104A(1)(b) should be read down so as not to prohibit, or require approval for, reasonable display of banners or placards at demonstrations such as those held in the name of Falun Gong.  He rejected that contention, holding that s 104A(1)(b) and the Management Scheme met the proportionality test.[11]

36.  On appeal to the Court of Appeal, the applicants sought to raise two new points, namely, that (i) as a matter of construction, s 104A did not apply to banners used in connection with a static demonstration, and (ii) the restriction imposed by s 104A was not “prescribed by law” as it failed the test of legal certainty.  The applicants also shifted the focus of their proportionality argument, as explained below.

37.  The Court of Appeal disagreed with the applicants on the construction of s 104A and refused to grant leave for that ground.[12] The respondents’ analysis on this issue, which the Court of Appeal accepted, may be set out as follows:

(1) The legitimate objective of the orderly and fair distribution of public space applies equally where a member of the public wishes to use the space for dissemination of political ideas in a demonstration.[13]  There is no reason why a person who displays a banner should be exempted from the regulatory scheme simply because he is exercising his right of demonstration (as opposed to his freedom of expression).

(2) The word “display” in s 104A connotes a degree of permanence and habitual regularity.  It does not encompass the use of banners or placards in a demonstration (whether mobile or static) which does not occupy the same spot with a degree of permanence and habitual regularity.  S 104A therefore does not apply to a mobile demonstration (such as banners used in a parade) or an occasional demonstration,[14] but only when a person wishes to use a banner at a spot on some permanent and habitually regular basis.[15]

38.  However, the Court of Appeal considered the new point that the restriction imposed by s 104A was not “prescribed by law” was arguable and granted leave to apply for judicial review on this ground.[16]

39.  On the issue of proportionality, the Court of Appeal understood the applicants’ argument before Poon J to have been that the mere fact of requiring prior approval for display of posters and bills used in conjunction with a demonstration rendered s 104A(1)(b) disproportionate and thus unconstitutional.  To this extent, the Court of Appeal agreed with Poon J that the contention should be rejected.[17] The Court of Appeal, however, recognised as arguable a narrower proportionality argument as follows:

“ 84. It is fair to say that the focus of the proportionality argument had been shifted. In the court below, and even in the written skeleton submissions before us, Mr Harris attacked the proportionality of Section 104A by reference to its requirement for prior approval. That was how the Judge understood his argument and at §§119 to 141 of the judgment he explained why he rejected Mr Harris’ argument.

85. As we said above, we agree with the Judge that the mere fact that approval is required for display of posters and bills used in conjunction with a demonstration does not render Section 104A unconstitutional.

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.”

G.   First ground — prescribed by law

40.  It is not in dispute that any restriction of fundamental rights such as the freedoms of expression, assembly and demonstration invoked by the applicants in this case must be “prescribed by law”, as stated in Art. 39 of the Basic Law.  The cognate concepts of “provided by law” in Art. 16 of the Bill of Rights and “in conformity with the law” in Art. 17 of the Bill express the same principle. The principle is that of legal certainty: Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, §30.

41.  It is well established that the principle not only means that the restriction must have a basis in law but entails two further requirements:

(1) the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case; and

(2) the norm is formulated with sufficient precision to enable the citizen to regulate his conduct so that he is able — if need be with appropriate advice — to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.

See The Sunday Times v The United Kingdom (1979-80) 2 EHRR 245, §49; Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, §§62‑63; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, §27; Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005, §84; R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) [2010] 1 AC 345, §40.

42.  On behalf of the applicants Mr Paul Harris SC advanced two contentions under the “prescribed by law” principle:

(1) First, the words “bills or posters” are literally very wide and, on the Court of Appeal’s interpretation, include demonstrators’ banners.  The respondents’ approach of reading the word “display” as requiring “a degree of permanence or habitual regularity” does not provide any legal certainty.  In other words, there is uncertainty in whether s 104A(1)(b) applies so that permission is required in the first place.  I shall refer to this as the “uncertain application point”.

(2) Secondly, assuming s 104A(1)(b) applies, the statutory provisions are wholly silent as to the basis on which approval for display of a banner may be granted or withheld and on their face grant a general power to refuse approval on any grounds.  I shall refer to this as the “uncertain criteria point”.

The uncertain application point

43.  In connection with the uncertain application point, Mr Harris criticised the absence of any provision in the Ordinance excepting demonstrators’ banners from the requirement for approval.  He recognised, however, that the Court of Appeal had ruled that s 104A applied to demonstrators’ banners (see the Court of Appeal’s judgment at §§39‑47) and that I am bound by this decision.  I therefore simply record that the applicants reserved their right to contend in a higher court, that s 104A, on its proper construction, does not apply to demonstrators’ banners save for unattended banners. 

44.  The Court of Appeal accepted the respondents’ submission that for the purpose of s 104A the word “display” carries with it “a degree of permanence and habitual regularity”.  Thus, s 104A “does not catch the use of banners or placards in a demonstration (whether mobile or static) which does not occupy the same spot with a degree of permanence and habitual regularity” (see the Court of Appeal’s judgment at §§42‑47).  Mr Harris also criticised this holding, arguing that linguistically a “display” may be one‑off or of very short duration, though he accepted that here again it was not an argument open to him in this court.

45.  Mr Harris nevertheless submitted that this introduces such uncertainty into s 104A as to render it non‑compliant with the “prescribed by law” requirement.  He argued that since there is no definition of “a degree of permanence or habitual regularity”, it is impossible for the citizen, such as a participant in a demonstration, to know at what point the requirement for prior approval is triggered so that it becomes an offence to continue thereafter to display the banners without approval.

46.  I cannot entertain this submission.  In my view it is not an argument open to the applicants in this court.  In essence, it is an invitation to rule that the Court of Appeal erred in adopting the interpretation advanced by the respondents because that interpretation is vague and uncertain and impermissibly so when applied to demonstrators’ banners because of the engagement of the fundamental rights of assembly and demonstrations and the associated freedom of expression.

47.  It is not entirely clear whether the same point was made to the Court of Appeal but, irrespective of this, it is clear that the Court of Appeal had at the forefront of their consideration the “prescribed by law” point.  It would not be sensible to suppose that the Court of Appeal gave the applicants leave to argue the “prescribed by law” point and yet in the same breath adopted an interpretation of s 104A which fails to satisfy that requirement.  The Court of Appeal must in my view be taken to have decided implicitly that the interpretation they adopted would not fall foul of that requirement.

48.  Furthermore, it is clear that when granting leave for the “prescribed by law” ground, the Court of Appeal had in mind the uncertain criteria point rather than the uncertain application point.  The Court of Appeal allowed a re‑amendment of the Forms 86, introducing, inter alia, a new ground as follows:

“ (11) Alternatively, the decisions were further unconstitutional in that the requirement in Section 104A of the Public Health and Municipal Services Ordinance to submit demonstrators’ banners for prior approval is not prescribed by law as it fails the test of legal certainty.”[18]

It is true that this paragraph was in general form, and was in fact criticised for being unparticularised[19], but plainly the Court of Appeal understood it to raise only the uncertain criteria point.  Thus the Court of Appeal stated at §72 of its judgment:

“ … the intended challenge by Mr Harris in the present case is in respect of the lack of certainty on the criteria for approval under Section 104A and lack of accessibility of such criteria. The section itself appears to give an absolute discretion to the Director.”

See also §§28, 66 and 76‑83 of the Court of Appeal’s judgment.

49.  When leave was granted by this court, by consent, in April 2017 for the Forms 86 to be re‑re‑amended[20], the relevant ground was re‑worded to become:

“ The Decisions were further unconstitutional in that the requirement in Section 104A of the Public Health and Municipal Services Ordinance (Cap 132) to submit demonstrators’ banners for prior approval is not prescribed by law and so is in breach of Articles 16 and 17 of the Bill of Rights and Article 27 of the Basic Law as it fails the test of legal certainty due to the absence from the statute of any criteria for the grant or refusal of such approval or any restriction on the discretion of the decision‑maker in granting or refusing approval and/or the absence of any corresponding regulation and/or policy which is applicable to the Applicant.”

So formulated, this ground is in my view plainly limited to the uncertain criteria point.

50.  Although the re‑re‑amendments also introduced into the Forms 86 in the section “Submissions” a paragraph[21] that advances the uncertain application point, it appears to be directed to the argument, reserved for a higher court, that s 104A should be construed in such a way as not to apply to banners used during demonstrations.[22]

51.  For these reasons I conclude that the uncertain application point is not open to the applicants in this court.

The uncertain criteria point

52.  The general principle is not in doubt.  As the majority of the Court of Final Appeal held in Leung Kwok Hung at §29:

“ A law which confers discretionary powers on public officials, the exercise of which may interfere with fundamental rights, must give an adequate indication of the scope of the discretion. The degree of precision required of the law in this connection will depend upon the particular subject matter of the discretion.”

53.  The concern is that the law should afford “a measure of legal protection against arbitrary interferences by public authorities” with fundamental rights: Hasan and Chaush v Bulgaria (2000) 34 EHRR 1339, at §84.

54.  In Glas Nadezhda Eood v Bulgaria (2009) 48 EHRR 35 at §46, the European Court of Human Rights emphasized that:

“ In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise …”

55.  This requirement not only enables the citizen reasonably to foresee the consequences of a given action and to regulate his conduct accordingly, but also serves the function of enabling the person to whom the power is entrusted to know the legitimate limits of that power: Secretary for Justice v Ocean Technology Ltd [2009] 1 HKC 271 at §107 per Stock JA.

Applicants’ arguments

56.  On behalf of the applicants, Mr Harris submitted that the law failed to set out any criteria as to how the discretion under s 104A(1)(b) is to be exercised.  There is no basis to think that the Management Scheme applies; if it does, it would enable content‑based censorship.  In contrast with some of the authorities which might be said to concern borderline cases, he submitted that this is a clear case where the “prescribed by law” requirement was not complied with.

Respondents’ preliminary objection

57.  Seizing upon several passages in the Forms 86 that complain that the statute confers an “unfettered” or “untrammelled” discretion on the Director, Mr Benjamin Yu SC, who appeared for the respondents, submitted that under established principles of public law, in this kind of regulatory scheme the discretion is not “unfettered” or “untrammelled”, and the applicants’ complaint therefore failed in limine.  I am unable to accept this submission.  The point to which Mr Yu wanted to confine the applicants is obviously unsustainable.  In one sense, in public law there is “no such thing as an unfettered discretion”: R v Somerset CC, ex p Fewings [1995] 1 All ER 513 at 524, per Laws J.  The Court of Appeal would not have granted leave if they considered that to be the only point raised.  The Court of Appeal itself stated that s 104A appears to give an “absolute” discretion to the Director (see §72 of the Court of Appeal’s judgment).  Obviously, in describing the discretion as “unfettered” or “absolute”, one is in this context simply pointing to the fact that the statute itself does not set out any limit or guidance on the exercise of the discretion.

Respondents’ arguments

58.  Broadly summarised, the respondents submitted that the “prescribed by law” requirement may be met not only by enacted law but also by unwritten law.  Although s 104A does not spell out the criteria for approval, they are embodied in or informed by (i) the context and purposes of the statutory scheme; (ii) the common law including in particular the principle that general powers conferred on a public authority can only be exercised in accordance with the object and purpose of the statute; (iii) all relevant requirements of the common law including the duty to act fairly, to take all relevant considerations into account and omit irrelevant ones, not to be influenced by ulterior motives, and not to act Wednesbury unreasonably or irrationally; and (iv) the Management Scheme.  What is important ultimately is whether there is a “settled core” of meaning of the norm in question.  Taken together, these matters (the respondents submitted) provide a reasonably certain basis for the operation of s 104A(1)(b).

59.  For Government land not covered by the Management Scheme, the approval process has been described in the respondents’ evidence (in an affirmation of Chan Chung Chi, a Senior Superintendent (Cleansing and Pest Control) of the Food and Environmental Hygiene Department) as follows:

“ In the circumstances, the Director does not consider that there is a need for establishing and publishing a separate set of guidelines for processing non‑Management Scheme applications. Should an applicant wish to make a non‑Management Scheme application, whether it is for demonstration purposes or not, he may make his application to the Director who will consider such application on a case by case basis. Having regard to the objectives of section 104A of the Ordinance which (among others) aims at preserving the cityscape, the Director will seek the comments and consent from the relevant body or government authority or department having the responsibility for the management of the venue under application. For instance, in case of an application involving a site on unallocated government land, the Director will seek comments and consent from the LandsD. In considering the applications, the Director will take relevant factors into account under the objects of the Ordinance, and also the comments and consent given by the relevant body or government authority or department in question which should consider all relevant factors, including but not limited to the criteria set out in the Management Scheme (e.g. the “general and significant community interests of non‑commercial nature”, “traffic and pedestrian safety”, etc) in giving consent to the application. The Director will also consider why the applicant does not or cannot make the application under the Management Scheme, e.g. why the designated spots under the Management Scheme cannot be utilized for displaying or affixing the bills or posters of the applicant in issue, and why the applicant (if he or she is an individual other than LegCo and DC members) cannot apply through an organization eligible for making an application under the Management Scheme, particularly so when there is already such an organization representing the interests or rights of the individual applicant in issue. If a non‑Management Scheme application is for displaying or affixing bills or posters on Government land as part and parcel of a demonstration or procession or assembly, the Director will also take this factor into account. Legal advice will also be sought, if necessary.”

Discussion

60.  The principles of the “prescribed by law” requirement are not in dispute.  As the authorities make clear, the tension between the need for legal certainty and the equally important need to avoid excessive rigidity does not admit of a sharp and fixed demarcation line applicable to every case.  In Hashman, it was said (at §31) that the level of precision required depends on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed.  In Leung Kwok Hung, it was said (at §§28‑29) that the appropriate level of precision must depend on the subject matter of the law in question.  Where the law is of general application, it seems to me that the level of certainty or precision demanded of it may also vary according to the circumstances to which it is applied.

61.  Neither side has been able to find an authority that deals with a law that restricts the display of materials by demonstrators.  The cases that have been cited to me concern other matters but are nonetheless instructive in illustrating the general approach, the considerations that may be taken into account and the actual application of principle to particular situations.

62.  In Leung Kwok Hung, the question arose whether s 14(1) of the Public Order Ordinance (Cap 245), which gave the Commissioner of Police the discretion to object to a procession “if he reasonably considers that the objection is necessary in the interests of … public order (ordre public) …”, met the “prescribed by law” requirement.  The Court of Final Appeal held that it did not, since the concept of “public order (ordre public)” as a concept of constitutional norm taken from the International Covenant on Civil and Political Rights is “imprecise and elusive” and its “boundaries beyond public order in the law and order sense cannot be clearly defined” (§70).  The majority stated:

“  Here, the subject matter of the discretion is the regulation of public processions subject to the statutory scheme.  As the situations that may arise for his consideration are of an infinite variety and would involve many different circumstances and considerations, it is important for the Commissioner to have a considerable degree of flexibility.  But even taking this into account, the Commissioner’s discretion to restrict the right of peaceful assembly for the statutory purpose of “public order (order public)” plainly does not give an adequate indication of the scope of that discretion.  This is because of the inappropriateness of the concept taken from the ICCPR as the basis of the exercise of such a discretionary power vested in the executive authorities. …” (at §77)

63.  In Malone v United Kingdom (1984) 7 EHRR 14, the question arose as to the lawfulness of interception of communications effected by the police with reference to the right to respect for private life and correspondence.  The European Court of Human Rights held (at §68) that “although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law”, a law which confers a discretion

“ must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference”.

Having regard to the obscurity and uncertainty in English law then as to whether a communication passing through postal services could be intercepted by police only pursuant to a valid warrant and the extent to which the circumstances in which a warrant might be issued were themselves circumscribed by law, the Court held that English law did not indicate with reasonable clarity the scope and manner of exercise of the authorities’ powers to intercept communications (see §§70‑79).

64.  In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, the measure in question was a provision in the Civil Service Act of Antigua and Barbuda that prohibited a civil servant from publishing “any information or expressions of opinion on matters of national or international political controversy”.  The Eastern Caribbean Court of Appeal accepted that the prohibition would, on its own, infringe the applicant’s freedom of expression, but held that the prohibition was qualified by another provision in the Constitution so that it only applied where the civil servant’s forbearance from such publication was “reasonably required for the proper performance of his official functions”.  In the opinion of the Privy Council, however, that guidance was not sufficiently precise to secure the validity of the provision and that even under the formulation suggested by the Court of Appeal, the civil servant would be “left with no clear guidance as to the exercise of his constitutional rights” (see pp 78F‑79A).

65.  In HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, the relevant issue was whether s 11 of the Administrative Instructions for Regulating Admittance and Conduct of Persons issued by the President of the Legislative Council, which required persons within the precincts of the Council premises to “behave in an orderly manner”, fell foul of the “prescribed by law” requirement as being too vague.  The Court of Final Appeal held (at §91) that in the light of the context and purpose of the provision as illuminated by other relevant provisions, no one could be in doubt that creating a disturbance by demonstrating in the public gallery while a sub‑committee was sitting, as the appellant had done, constituted a contravention.

66.  I propose to analyse the present case below by reference to the following signposts:

(1)  the nature of the fundamental right concerned and the purposes which it serves in our society;

(2)  the nature and extent of the restriction the discretionary power places on the right;

(3)  the consequences for the person restricted;

(4)  the purposes served by the imposition of restriction;

(5)  the explicit or implicit limits placed on the discretionary power; and

(6)  the status of those to whom the law is addressed.

Nature and purpose of the fundamental rights concerned

67.  It is not in dispute that the freedom of expression and the freedom of assembly and demonstration are engaged in the present case.  These are fundamental rights, precious to the society of Hong Kong and its way of life, which are afforded generous interpretation by our courts so as to give individuals their full measure.  Restrictions on these rights are narrowly interpreted and the burden lies on the Government to justify any restriction; see Leung Kwok Hung at §16.  Concomitant with these rights is the Government’s positive duty to take reasonable and appropriate measures to enable assemblies and demonstrations to take place peacefully: Leung Kwok Hung at §§22‑24.

68.  It would, however, be myopic to see the issue merely as a question of an individual’s rights.  It has long been realised that there is a public and collective interest in upholding these rights.  Lord Denning MR put it thus in Hubbard v Pitt [1976] QB 142, 178 (quoted by Bokhary PJ in Leung Kwok Hung at §119):

“ the right to demonstrate and the right to protest on matters of public concern … are rights which it is in the public interest that individuals should possess”.

Likewise, as the majority of the Court of Final Appeal stated in Leung Kwok Hung at §2:

“ These freedoms are of cardinal importance for the stability and progress of society for a number of inter-related reasons. The resolution of conflicts, tensions and problems through open dialogue and debate is of the essence of a democratic society. These freedoms enable such dialogue and debate to take place and ensure their vigour. A democratic society is one where the market place of ideas must thrive. These freedoms enable citizens to voice criticisms, air grievances and seek redress. This is relevant not only to institutions exercising powers of government but also to organizations outside the public sector which in modern times have tremendous influence over the lives of citizens. Minority views may be disagreeable, unpopular, distasteful or even offensive to others. But tolerance is a hallmark of a pluralistic society. Through the exercise of these freedoms minority views can be properly ventilated.”

69.  As noted above, the statute here regulates not assemblies or demonstrations as such but the display of bills or posters, including those used at assemblies and demonstrations, with a degree of permanence and habitual regularity.  Nevertheless, the freedom of assembly and demonstration are, together with the freedom of expression, engaged because these rights extend in various dimensions including the manner and form of their exercise: see HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, §§40‑43.  Thus in Mayor of London (on behalf of the Greater London Authority) v Hall [2011] 1 WLR 504, Lord Neuberger of Abbotsbury MR stated (at §37):

“ The right to express views publicly, particularly on the important issues about which the defendants feel so strongly, and the right of the defendants to assemble for the purpose of expressing and discussing those views, extends to the manner in which the defendants wish to express their views and to the location where they wish to express and exchange their views. If it were otherwise, these fundamental human rights would be at risk of emasculation. Accordingly, the defendants’ desire to express their views in Parliament Square, the open space opposite the main entrance to the Houses of Parliament, and to do so in the form of the Democracy Village, on the basis of relatively long‑term occupation with tents and placards, are all, in my opinion, within the scope of articles 10 and 11.”

Similarly, in Tabernacle v The Secretary of State for Defence [2009] EWCA Civ 23, Laws LJ said (at §37) that in some cases, the “manner and form” of the demonstration may constitute the actual nature and quality of the protest itself.

70.  Banners have been an adjunct of demonstrations for a long time and in many places.  They are a primary physical means by which demonstrators visually communicate their messages to others.  To restrict the display of banners is, in my view, a serious inroad into the protected freedoms.

Nature and extent of the restriction

71.  In its application to bills or posters displayed in demonstrations on any Government land with a degree of permanence and habitual regularity, s 104A confers a discretion upon the Director[23] to decide whether or not to give approval.  Without such approval, the persons who so display the bills or posters commit an offence and the materials are liable to be removed by the Director at those persons’ expense. 

72.  It is recognised that s 104A imposes a requirement for approval, not an absolute prohibition, for prolonged display of banners.  Further, the Court of Appeal has held in this case that requiring prior approval is not in itself an unlawful infringement of the applicants’ fundamental rights: see §§80 & 85 of the Court of Appeal’s decision; see also Butler v Derby City Council [2006] 1 WLR 1346, §§39 & 47.

73.  Still, it cannot be disputed that in this way, s 104A empowers an executive authority to exercise prior restraint, backed by criminal sanctions, over the display of bills or posters in assemblies and demonstrations with a degree of permanence and habitual regularity.  Such prior restraint on the exercise of fundamental rights does “call for the most careful scrutiny” on the part of the court: The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, §60; Hashman v. United Kingdom (2000) 30 EHRR 241, §32; Leung Kwok Hung at §137, per Bokhary PJ.[24]

Consequences for the person restricted

74.  The statutory scheme criminalises display of bills or posters without approval.  The specified penalty is a fine at Level 3 (which is equivalent to $10,000[25]) and, for a continuing offence, an additional daily fine of $300.[26]  I was told that in fact the applicants have been charged and face prosecutions pending the outcome of these proceedings.

75.  Moreover, in April 2013, the banners, bill boards and portable frames of the applicants and other Falun Gong demonstrators were compulsorily removed by the officials of the Food and Environmental Hygiene Department from the demonstration sites.  The evidence states that by end of May 2013, over 130 banners and 480 placards had been removed from various demonstration sites.  The applicants complain that because of these actions, they have become “very nervous” in carrying out their demonstrations and have reduced the display materials used, impairing their ability to communicate with the public.

76.  The respondents submitted[27] that the statute only restricts one mode of expression by Falun Gong demonstrators, and does not prevent them from communicating the same messages by other means.  This is of course true, but the gravity and consequences of a limited restriction may vary depending on the circumstances of each case.  In the present case one is concerned not only with the freedom of expression but also the freedom of demonstration.  Falun Gong demonstration sites had existed in those forms for over ten years by 2013.  The visual impact through their banners is without doubt a significant part of the demonstrations.  The restriction placed would mean that while the demonstrations could continue, the demonstrators could not use banners or placards without prior approval except perhaps ambulatory ones[28] and those without a degree of permanence and habitual regularity.  In the operational guidelines issued by the Food and Environmental Hygiene Department, it was stated that no action would be taken against “walking” bills or posters, ie those held by hand or hung on the body.  This had given rise to a complaint at one stage that the policy discriminated against the weak‑bodied demonstrator: see Poon J’s judgment §153‑155. 

Purposes served by the restriction

77.  The purpose of the statutory scheme has been analysed by Poon J in his judgment at §§81‑91, which, as summarised by counsel for the respondents, is as follows:

“ the purpose of the regulatory scheme in this part of the Ordinance strives at protecting and preserving the cityscape of Hong Kong. The regulatory scheme ensures that our cityscape and public places would not be subject to environmental nuisance and pollution caused by haphazard, tardy or unsightly displays of publicity materials and its proliferation. Second, Hong Kong’s public places are public resources available to all citizens. They are open to all for lawful and reasonable use and enjoyment. Nobody has or can possibly claim any monopoly on enjoying or using the public places in any way as he sees fit to the exclusion of his fellow citizens or in total disregard of their legitimate interests. The regulatory scheme ensures that where one’s use of public places involves displaying publicity materials, it will not unduly interfere with other citizens’ use or enjoyment of the same for legitimate purposes. Third, given the scarcity of public places and the growing demand for displaying publicity materials, the regulatory scheme ensures there will be control and prioritisation in the display of bills and posters in public places. In the absence of control, chaos might easily deteriorate into serious disputes, commotion or even physical violence. Fourth, bills and posters displayed publicly can pose traffic risks to road users. Control is necessary to ensure that such activities do not pose any traffic risks.”

78.  On behalf of the applicants, Mr Harris did not disagree in broad terms with this analysis, except that he submitted that the principal purpose of the statutory scheme was and remains the regulation of display of unattended bills and posters, and not those being used by demonstrators however habitually the demonstration takes place.

79.  In particular, he pointed out that the kind of chaos that the statutory scheme seeks to control has relevance principally for unattended bills and posters because any public order concerns created by use of banners by demonstrators would fall within the purview of and be adequately dealt with by the Public Order Ordinance and other laws designed for that purpose.

80.  This may be relevant to the proportionality argument but for present purposes, even if some of these purposes are not served by s 104A alone or even principally but by other specific statutes, it does not mean that they are not objects and purposes that may properly inform the exercise of the discretion confined by the Ordinance.

Explicit or implicit limits on the discretionary power

81.  S 104A(1)(b) is wholly silent as to the basis on which approval may be granted or withheld.  It gives a general power to the Director to refuse approval on any ground, without even providing a list of general concepts for guidance, in contrast with s 14(1) of the Public Order Ordinance, which was the subject matter in Leung Kwok Hung. S 104A is even wider in this respect and is essentially “unfettered” in the sense explained in §57 above.

82.  The respondents pray in aid various public law principles that inform or place limits on the exercise of statutory powers. Thus it is argued that general powers conferred by legislation are limited by, and can only be exercised in accordance with, the objects and purposes of the statute: Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997, 1054G, 1060E‑G.  Granted that the exercise of power under s 104A(1)(b) must be rooted in protecting the cityscape, balancing the use of public space by different segments of the citizenry, preventing chaos and conflicts in the competition for such space, and promoting road safety, I do not think that in the present context this principle gives sufficient guidance.  These are matters that can point in many directions.  For example, they have been construed by the respondents as permitting the decision‑maker to take account of the content of bills and posters to see if they are “objectionable” (see Part 7(b)(iv) of the Management Scheme).  The respondents have apparently interpreted the purpose as mandating or enabling them to prevent the display of, inter alia, “lurid pictures”, “defamatory” messages and nuisance caused by “accusations and counter‑accusations, and cacophony of messages all done for one cause or another”.[29]  These show the width of the use to which the power may be put at the discretion of the Director or Lands Department officials even as guided by the objects and purposes of the statute.  In my view these “objects and purposes” give insufficient guidance under the “prescribed by law” principle.

83.  As the European Court of Human Rights emphasised in Centro Europa 7 Srl v Italy (2012) 32 BHRC 417 at §§141‑143, one of the requirements flowing from the expression “prescribed by law” is foreseeability, and

“ a rule is ‘foreseeable’ when it affords a measure of protection against arbitrary interferences by the public authorities … and against the extensive application of a restriction to any party’s detriment …”

84.  The present case may be distinguished from Francis v Chief of Police [1973] AC 761, where a person was convicted of using a loudspeaker in a public meeting without permission of the Chief of Police, contrary to a requirement in the Public Meetings and Processions Act 1969 of the State of St Christopher, Nevis and Anguilla.  There it was conceded that the freedom of assembly and demonstration was not engaged (see p 765H), leaving only the question of freedom of expression.  The Privy Council thought that regulation of the use of loudspeakers was required to protect citizens from “aural aggression”.  They considered that the Chief of Police was not without guidance because the object of the Act was to facilitate the preservation of public order.  The Constitution there qualified the fundamental rights by reference to what was “reasonably required in the interests of … public order”, which the Privy Council considered to be wide enough to cover action taken for the avoidance of excessive noise seriously interfering with the comfort and convenience of other persons (see p 766E, 772E‑773A).

85.  Reliance was also placed by the respondents on Hong Kong Television Network Ltd.  While there is valuable guidance in Cheung CJHC’s judgment that one should adopt a “holistic approach” taking account of all relevant requirements and characteristics of the common law, on the facts it was quite a different case.  The context was the power to grant free domestic television licences under s 10 of the Broadcasting Ordinance (Cap 562).  While the freedom of expression was engaged in broadcasting, as Stock JA said in Ocean Technology at §69, “no person has a right to a broadcasting licence”.  The question was whether the fact that “public interest” might be taken into account rendered the discretion too uncertain.  The decision‑maker was the Chief Executive in Council, the apex of the executive government of the Hong Kong SAR, who one might think was uniquely well placed to consider questions of public interest.  There was also some guidance in government policy and objectives already announced and in a guidance note issued by the Broadcasting Authority. 

86.  The respondents also submitted that in public law there is a requirement of fairness, which is “the bottom line of the requirement of legal certainty”: Hong Kong Television Network Ltd, §95. In that case, what was considered significant was that fairness required the Chief Executive in Council to give the applicant a fair opportunity of being heard in relation to material matters, including in particular matters not reasonably foreseeable at the time when the application for licence was submitted, such as the “gradual and orderly approach” which was introduced after the application was made (see §§96‑97 of the judgment of Cheung CJHC).

87.  Mouvement Raelien Suisse v Switzerland (2013) 56 EHRR 14, cited by the respondents in relation to the proportionality ground, does not assist in the present context.  It was a case concerning a poster campaign by a branch of the Raelian Movement which was prohibited by a municipal authority in Switzerland.  The poster would feature “The Message from Extraterrestrials”.  The European Court of Human Rights held that the interference with the freedom of expression was justified.  However, it was a case concerning unattended posters, not banners used in demonstrations, so that the freedom of assembly and demonstration was not engaged.  No issue arose as to whether the restriction was prescribed by law, as the municipal law empowered the police to prohibit posters that were immoral and the poster in question was banned by the Swiss authorities on that ground among others (see §§16‑21, 25).  The principal question was proportionality, and in considering that question the Court took the view that what the applicant wished to convey by the poster was closer to commercial speech than to political speech per se (§62).

88.  The respondents submitted that it must be implicit that in considering an application under s 104A(1)(b), the Director “should have regard to” the applicants’ constitutional freedoms of demonstration, assembly and expression.[30] This argument carries little weight in the present context, because to say that the exercise of a discretionary power must comply with a citizen’s constitutional right begs the question, offering no guidance either to the citizen or the official.  Nor has the Director explained how he would “have regard” to these constitutional freedoms.  As O’Regan J said in Dawood, Shalabi and Thomas v Minister of Home Affairs 2000 (3) SA 936 at §54:

“ … It is for the legislature to ensure that, when necessary, guidance is provided as to when limitation of rights will be justifiable. It is therefore not ordinarily sufficient for the legislature merely to say that discretionary powers that may be exercised in a manner that could limit rights should be read in a manner consistent with the Constitution in the light of the constitutional obligations placed on such officials to respect the Constitution. …”

89.  Moreover, O’Regan J explained in §46 as follows (footnote omitted):

“ There is, however, a difference between requiring a court or tribunal in exercising a discretion to interpret legislation in a manner that is consistent with the Constitution and conferring a broad discretion upon an official, who may be quite untrained in law and constitutional interpretation, and expecting that official, in the absence of direct guidance, to exercise the discretion in a manner consistent with the provisions of the Bill of Rights. Officials are often extremely busy and have to respond quickly and efficiently to many requests or applications. The nature of their work does not permit considered reflection on the scope of constitutional rights or the circumstances in which a limitation of such rights is justifiable. It is true that as employees of the state they bear a constitutional obligation to seek to promote the Bill of Rights as well. But it is important to interpret that obligation within the context of the role that administrative officials play in the framework of government which is different from that played by judicial officers.”

90.  It is not enough, in a case such as the present, to confer an unbridled power and then leave it to the Director of Food and Environmental Hygiene or the Chief Estate Surveyor, Senior Land Executive and Principal Survey Officer (Estate) of the Lands Department to determine when fundamental freedoms of expression, assembly and demonstration should be restricted by refusing approval for, and thereby criminalising, the display of banners.

91.  The respondents also prayed in aid the Management Scheme, which was accessible to the public, as providing further guidance.  It was submitted that a public authority who has promulgated guidelines or policies for the exercise of discretion must generally follow those guidelines or policies unless there are cogent reasons for not doing so: Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority (No 2) (2006) 9 HKCFAR 478, §26. 

92.  In my opinion this is not an answer in this case because, as is by now clear, the Management Scheme does not apply on the facts.  First, although the scheme was devised in 2003 at a time when Falun Gong demonstrations were already regularly held at many of the sites in question, it does not cover any of the sites here, none of which is a designated roadside spot under the scheme.

93.  Furthermore, applications for approval under the Management Scheme are not open to individuals except members of Legislative Council or District Council.  While there is an association in Hong Kong called “Hong Kong Association of Falun Dafa”, its membership is not mandatory for Falun Gong adherents.  It consists of a small number of veteran Falun Gong practitioners, and most Falun Gong practitioners in Hong Kong, including the applicants in these proceedings, are not its members. 

94.  The respondents submitted that there is nothing to prevent that association from making an application under the Management Scheme for Falun Gong adherents generally.  Let it be assumed that the association falls within “non-profit making bodies for the display of publicity materials serving the local community” (see Part 2 of the Management Scheme).  But while there is evidence from the respondents that the association had applied for permission for a mass practice in Victoria Park and a photography exhibition outside the Cultural Centre in 2000, the evidence from Mr Hui, a director of the association, is that it mostly organises one‑off events like the two examples mentioned by the respondents rather than Falun Gong demonstrations, most of which are organised by individual practitioners or groups of practitioners who in most cases are not members of the association.  In particular, demonstrations at the “truth clarification sites”, where enforcement action was taken pursuant to the Decisions under challenge here, are all organised by individual practitioners or groups of practitioners without any central co-ordination or active involvement of the association.

95.  The respondents themselves submitted that, where an application falls outside the scope of the Management Scheme, the Director’s discretion must nevertheless be guided by the context and purpose of the statute.[31] The Director may of course in a particular case choose to take into account the Management Scheme.  But there is no guidance in law that he will do so.  Even in the evidence describing the Director’s practice, it is said, not that the Director will take the Management Scheme into account, but that he will take into account the comments of the relevant government authority or department responsible for managing the venue in question “which should consider all relevant factors, including but not limited to the criteria set out in the Management Scheme” (see §59 above).  In the affirmations of two Assistant Directors of the Lands Department, it was said that in deciding whether or not to grant permission, the Authority under s 104A would take in account “the principles behind the Management Scheme (where applicable)”.[32]

96.  It was unclear in 2013 how individual demonstrators were expected to make an application for approval of his banners and in what way and to which Government department and according to what criteria such an application would be processed and determined.

97.  Mr Harris submitted that even if the Management Scheme applies, whether Falun Gong banners are for “promotion of public awareness of matters of general and significant community interests of non‑commercial nature” and whether they are of an “objectionable nature” (see Part 7 of the Management Scheme) are wholly subjective and unclear.  As the question does not arise in this case it is unnecessary to deal with it.

98.  There is a statement in the evidence that any request for approval that is not covered by the Management Scheme will be dealt with by the Director on a “case by case basis” (see §59 above).  In the context of the challenge that the restriction is not “prescribed by law”, this is of course the complaint rather than the solution.  As an example, in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at §34, Li CJ said that the “prescribed by law” requirement could not be satisfied by immigration officials exercising their general discretionary powers in considering the imposition of restrictions on constitutional rights on a case by case basis at immigration counters at entry points.

Persons to whom the law is addressed

99.  The law in question is primarily addressed to two classes of persons, namely, the Director and the Lands Department officials with whom he shares the power on the one hand, and on the other hand members of the public who wish to display bills or posters in public places including, in the context of this case, persons who wish to display banners as part of their prolonged demonstrations.  I have already touched on the position of the officials above.  As to demonstrators, it seems to me that the statute, with all the common law constraints to which the respondents are admittedly subject, does not give an adequate indication of the scope of the discretion or the criteria that may be taken into account.  Even with the benefit of legal advice, which not many demonstrators may be in a position to obtain, it is difficult to foresee how they ought to conduct themselves if they remain intent upon conveying their message through demonstrations and banners.

Conclusion on the “prescribed by law” ground

100.  Recognising that the threshold for a holding of vagueness is relatively high (see eg Hong Kong Television Network Ltd, §88), I have come to the conclusion for the above reasons that s 104A(1)(b) as applied to the facts of the present case imposed a restriction on the applicants’ freedom of expression, assembly and demonstration that did not sufficiently meet the “prescribed by law” requirement.

The second ground — proportionality

101.  As mentioned in §39 above, Poon J and the Court of Appeal have both held that a requirement of approval for display of bills or posters used in conjunction with a demonstration is not in itself a disproportionate restriction on fundamental rights: see Poon J’s judgment at §139; Court of Appeal’s judgment §§80, 84 & 85, quoted in §39 above.  It follows that the applicants cannot, in this court, maintain such a challenge.  Nor can they circumvent this stricture by saying that “what is challenged is [the statute’s] application to demonstrators’ banners”.[33]

102.  On this basis, much of what the applicants submitted seems to me to fall outside the permissible scope of the applications. For example, Mr Harris’s argument that it is unnecessary to hold that demonstrators’ banners are regulated by s 104A because there are other laws that can deal with any mischief seems to me to run counter to the Court of Appeal’s decision.

103.  What the Court of Appeal had in mind in giving leave on the proportionality ground seems to me to be directed at the substantive process of the decision‑making under s 104A(1)(b) including, in particular, whether or not content‑screening would be involved and if so the criteria to be applied: see Court of Appeal’s judgment §§66, 86‑87.  It was envisaged that further evidence would be filed which would shed light on this aspect.

104.  But the affirmations filed by the respondents after the Court of Appeal’s decision do not in my view contain a sufficient and proper basis for a proportionality analysis.  I do not say this by way of criticism, for in fact the Director has not received any application under s 104A that falls outside the scope of the Management Scheme.  Thus, it was said, in the affirmation from the Food and Environmental Hygiene Department parts of which I quoted in §59 above, that should an application be received in future, the Director would consider it “on a case by case basis”.  The process was then further described, albeit in the abstract.  The evidence stops conspicuously short of saying that content will not be taken into account, but how content will be assessed remains unclear.  Insofar as the Management Scheme is relevant, either as directly taken into account by the Director, or indirectly via the comments of other government departments, it is to be noted that content may be relevant to whether the bills and posters contain “matters of general and significant community interests of non‑commercial nature” or are of an “obscene or objectionable nature” (see Part 7 of the Management Scheme).  There was also no disclaimer of content-screening in the affirmation from the Lands Department.  All that was said was that there would be “no question of any censoring of such applications for the mere fact that the Applicants were Falun Gong practitioners”.[34]  In their submissions, counsel for the respondents stated that “the restrictions on contents are proportionate to achieve the legitimate aims”.[35] Quite how content would be taken into account is, however, unknown, but would be important for a proportionality analysis.  For example, there would be, to my mind, a great difference between screening bills or posters for obscene content and screening them for anti-government messages however defamatory they might be.

105.  In these circumstances, I have given anxious consideration to whether there is any point in proceeding to deal further with the proportionality ground, and have come to the conclusion that there is none.  On the facts, no application has been made by these applicants for permission under s 104A(1)(b).  Because no application has ever been received by the Director from anyone at all, the evidence filed as to how an application would be processed is understandably general and hypothetical in nature, and as explained above leaves much to conjecture as to how content might be taken into account.  In addition I have already come to the conclusion that the applicants succeed on the uncertain criteria point under the “prescribed by law” ground.  It seems to me to be unwise, especially on constitutional questions, to try to set up some assumed facts and then give a legal opinion on them.

106.  I do not understand there to be a separate available argument that assuming s 104A is proportionate and constitutional, the decisions to enforce it by way of removal of the banners under s 104C are nevertheless disproportionate and unconstitutional.  Enforcement is the subject matter of internal operational guidelines issued by the Department of Food and Environmental Hygiene, which were discussed in Poon J’s judgment at §§145‑147.  Although Mr Harris mentioned the argument in his reply[36], they were not raised in the Forms 86.[37] Indeed the applicants themselves submitted that, if the law is otherwise valid, it is the duty of the responsible authorities to enforce it.[38]  Nor does such argument seem to me to fall within the ground for which leave was given by the Court of Appeal.

107.  For these reasons the proportionality ground falls away.

I.   Conclusion and orders

108.  As stated in §100 above, on the facts of the present case, the restriction imposed by s 104A(1)(b) on the applicants’ freedom of assembly, demonstration and expression fails to meet the “prescribed by law” requirement.  As the Court of Appeal observed (at §57 of their judgment), s 104C is not a free‑standing provision.  The power to remove bills or posters under s 104C(1) is premised on their being displayed in contravention of s 104A(1).  Accordingly, the Decisions, which were all taken under s 104C(1), cannot stand.  There will be an order for certiorari to quash the Decisions.

109.  In their Forms 86 the applicants sought a declaration that s 104A does not prohibit or require approval to be obtained for reasonable display of banners or placards at moving or static demonstrations.  In his submissions Mr Harris said that the word “reasonable” was not necessary.  He also proposed an alternative declaration that s 104A(1)(b) does not apply to any bill or poster displayed and attended to at any demonstration.  I decline to grant any of these declarations, which seem to me geared towards the applicants’ construction argument which was rejected by the Court of Appeal.

110.  There will be an order nisi that the respondents pay the costs of the applicants with a certificate for two counsel, and that the applicants’ own costs be taxed in accordance with the Legal Aid Regulations.