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

HCAL 73/2013

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

NO 110 OF 2013

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J U D G M E N T

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A. INTRODUCTION

1.  In Hong Kong, display of publicity materials on Government land is regulated by Part IX of the Public Health and Municipal Services Ordinance, Cap 132 (“the Ordinance”).  Under the statutory scheme, a person must first obtain written permission from the Director of Food and Environmental Hygiene (“the Director”) before he can display publicity materials on any Government land falling within the Director’s purview : section 104A(1)(b) read together with section 104E(1)(f).  If he does so without the Director’s written permission, he commits a criminal offence : section 104A(2).  The Director may also remove the materials displayed without his permission in contravention of section 104A(1)(b) : section 104C(1)(a).

2.  Pursuant to section 142 of the Ordinance, the Director had by a memo dated 23 April 2003 delegated his functions and powers under section 104A(1)(b) to 3 specified categories of officers of the Lands Department (“LD”).[1] The delegation does not, however, preclude the Director from exercising or performing at any time any of the powers or functions so delegated.  Since the delegation, LD has adopted a “Management Scheme for the Display of Roadside Non‑commercial Publicity Materials Implementation Guidelines” for the purpose of processing applications for permission to display such materials on public roadsides under section 104A(1)(b) of the Ordinance (“the Management Scheme”).  As its name suggests, the Management Scheme only covers the spots on public roadsides as designated for displaying non-commercial publicity materials.  It does not include all Government land that falls within the Director’s purview under section 104A(1)(b).  So for any Government land not covered by the Management Scheme, the powers and functions under section 104A(1)(b) remain to be exercised by the Director.

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,[2] there are 26 of such locations all over Hong Kong where the FLG practitioners hold the static demonstrations (“the 26 Locations”).[3]

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.

5.  In response to the recent enforcement actions undertaken by FEHD under section 104C(1) of the Ordinance, the applicants took out the present judicial review proceedings.  Underpinning their case is their constitutional challenge against section 104A of the Ordinance and the Management Scheme.

6.  Pursuant to my direction, a rolled up hearing was conducted on 3 and 4 April 2014.  After hearing the parties, I reserved judgment.

7.  On 6 August 2014, the court was informed by the applicants’ solicitors that Madam Chee Fei Ming, the original applicant in HCAL 73/2013, sadly passed away on 20 May 2014.  Despite her death, the issues raised in her application, which are virtually identical to those raised by Mr Hung Shui Fung in HCAL 110/2013, cannot be cursorily passed over without determination because of the general public importance involved.  In the circumstances I exercised my inherent jurisdiction[4] and ordered, by way of a consent order dated 13 October 2014, that leave be given to Ms Pun Lin Fa, another FLG practitioner, to substitute Madam Chee as applicant so that HCAL 73/2013 can be properly disposed of.

B.   BACKGROUND

8.  The background facts leading to these judicial review proceedings are outlined as follows.

B1.   FLG demonstrations

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.[5]

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[6] (“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.

C.   JUDICIAL REVIEW

29.  The applicants then took out the present judicial review proceedings.  They sought to impugn the following decisions made by the Director and the Secretary for Justice (“the Decisions” collectively) :

(1) The decision taken on or before 12 April 2103, and publicly notified on 5 April 2013, or alternatively on 22 April 2013, to remove banners and placards from FLG demonstration locations on the purported ground that their display was in breach of section 104A of the Ordinance;

(2) The decision taken on a date unknown between 8 and 12 April 2013 to proceed with the 1^st Decision notwithstanding the representations made to the Director by FLG practitioners on 8 April 2013;

(3) 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

(4) The decision taken on a date unknown on or after 10 May 2013 to continue to remove banners and placards from FLG demonstration locations on the purported ground that their display was in breach of Section 104A notwithstanding representations made on 10 May 2013 by FLG representatives to the Director.

30.  The applicants raised a number of grounds to impugn the Decisions, which boil down to four :

(1) They were unconstitutional in that they unlawfully infringed the applicants’ freedoms of demonstration, assembly and speech as protected by Article 27 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights (“Ground 1”).

(2) 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 FLG practitioners (“Ground 2”).

(3) They were unlawful because they were based on a policy which unlawfully discriminated against disabled persons and women contrary to the Disability Discrimination Ordinance, Cap 487 and the Sex Discrimination Ordinance, Cap 480 respectively (“Ground 3”).

(4) They involved a change of important published policy which was contrary to the applicants’ legitimate expectation that either it would not be changed or would not be changed without prior consultation (“Ground 4”).

31.  The applicants sought, among other things, a declaration that the seizure of the banners and placard pursuant to the Decisions was unlawful, a declaration that section 104A of the Ordinance does not prohibit, or require approval to be obtained for, reasonable display of banners or placards at moving or static demonstration; a certiorari to quash the Decisions; return of the banners and placards seized; and damages including aggravated and exemplary damages in the event that those banners and placards had been destroyed.

32.  I will examine Grounds 1 to 4 in turn.

D.   GROUND 1

D.1  Constitutional provisions

33.  Article 27 of the Basic Law guarantees that :

“Hong Kong residents shall have freedom of speech … of assembly … and of demonstration …”

34.  Such freedoms may however be restricted as prescribed by law : see Article 39(2) of the Basic Law.

35.  Article 16(2) of the Hong Kong Bill of Rights protects the freedom of expression thus :

“(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.”

36.  Similarly, the protection is not absolute as Article 16(3) provides :

“(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.”

37.  Article 17 of the Hong Kong Bill of Rights provides that the right of peaceful assembly shall be recognized.  It goes on to deal with restrictions :

“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.”

38.  The freedoms of speech, peaceful assembly and demonstration, protected by Article 27 of the Basic Law, Articles 16 and 17 of the Bill of Rights, are all fundamental rights.  They are precious and lie at the very foundation of Hong Kong as a democratic society.  As the majority of the Court of Final Appeal[7] put it in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229 :

“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.”

39.  Although these fundamental rights are not absolute, they are jealously protected by our courts. As the Court of Final Appeal said, the courts must give those fundamental rights a generous interpretation so as to give individuals its full measure.  At the same time, the courts must narrowly interpret restrictions of such fundamental rights.  The burden rests with the Government to justify any restriction.  In considering if the Government has discharged its heavy burden, the courts must be vigilant in the protection of fundamental rights and must rigorously examine any restriction that may be placed on them.  See Leung Kwok Hung, supra, at §16.

D.2   Constitutional requirements for restriction

40.  There are two constitutional requirements for restriction.

41.  First, the restriction must be prescribed by law (the “prescribed by law” requirement).

42.  This requirement mandates the principle of legal certainty.  To satisfy this principle, certain requirement must be met.  It must be adequately accessible to the citizen and must be formulated with sufficient precision to enable the citizen to regulate his conduct.  There is an inevitable tension between requiring a law to be formulated with sufficient precision and the desirability of avoiding excessive rigidity in the law.  The appropriate level of precision must depend on the subject matter of the law in question.  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.  See Leung Kwok Hung, supra, §§17(1), 25-29.

43.  Second, the restriction must be necessary in a democratic society in the interest 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 (the “necessity” requirement).  These purposes are often referred to as “legitimate purposes”.

44.  This requirement involves the application of a proportionality test, which should be formulated in these terms :

(1) the restriction must be rationally connected with one or more of the legitimate purposes; and

(2) the means used to impair the right in question must be no more than was necessary to accomplish the legitimate purpose in question.

See Leung Kwok Hung, supra, §§17(2), 33-38.

45.  Having discussed the constitutional provisions and the general requirements for restriction, I now turn to the regulatory scheme in Part IX of the Ordinance.

D.3   Regulatory regime in Part IX

46.  In gist, under the regulatory scheme, a person must first make an application to the Authority for permission to display publicity materials on Government land.  If permission is granted, he must maintain the display in a clean and tidy condition to the Authority’s reasonable satisfaction.  If an applicant displays the publicity materials without the Authority’s permission, or even if permission is granted but he does not maintain the materials as required, he commits a criminal offence. The Authority can remove the publicity materials that he displayed and recover the removal costs against him.  Below is a more detailed description of the regulatory scheme.

D3.1  Overview of Part IX

47.  Part IX consists of sections 104, 104A, 104B, 104C, 104D, 104E and 105.

(a) Section 104

48.  Section 104 empowers the Secretary for Food and Health as the designated Authority[8] to make regulations for control of advertisements.  It is irrelevant for present purposes.  The regulations made are the Advertisements Regulations, Cap 132B.  As will be seen shortly, they are also irrelevant for present purposes.[9]

(b) Section 104A

49.  Section 104A was first introduced into the Ordinance in 1973, which read :

“The Authority may remove from any building, hoarding or other structure any bill or poster which, by reason of its condition, is in the opinion of the Authority unsightly.”

50.  “The Authority” was then defined as the Urban Council (for urban areas) and the Director of Urban Services (for the New Territories excluding New Kowloon).[10]  No prior approval of the Authority was required for display of bills and posters on Government land.  And the only ground upon which the Authority might remove any bill or poster was unsightliness.

51.  In 1980, new amendments were introduced as a package consisting of the new sections 104A and 104E to tighten the then ineffectual controls over environmental nuisance caused by the indiscriminate posting of bills and posters.[11] Over the years, various changes were made to the list of designated Authority in Section 104E in alignment with corresponding changes in related Ordinances and to cater for the reorganization of the provision of municipal services by the Government.  In 1998, the references to “Crown” were all changed to “Government”.  Other than those changes, the new amendments have remained the same since their enactment in 1980.

52.  Section 104A(1) 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, expect with the written permission of the Authority.”

53.  The term “bill or poster” has a wide definition.  It includes “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” : section 104E(4).

54.  There is no definition for “Government land”.  The term “land” is defined to include any building, erection on land, whether a fixture or not : section 104E(2)(a).

55.  Section 104A(2) goes on to create an offence by providing :

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

(c) Section 104B

56.  Section 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 satisfaction of the Authority.  Sub-section (2) creates an offence for displaying a bill or poster in contravention of sub-section (1).  Sub‑section (3) deals with the specific requirement of notice before a prosecution under section 104B could be brought.

(d) Section 104C

57.  Section 104C covers displays on both private land and Government land without permission.  Sub-section (1) empowers the Authority to remove a bill or poster displayed in contravention of section 104A(1) or a bill or poster not maintained in a clean and tidy condition as required under section 104B(1) : subparagraphs (a) and (b) respectively.  The Authority may also recover the cost of removal from the person displaying the bill and poster as a civil debt.  Sub-section (2) empowers the court to order the person convicted of an offence under either section 104A(1) or section 10B(1) to pay the estimated cost or removing the bill or poster in respect of which the offence was committed.  Sub-section (3) deals with materials displayed on private land.  It is irrelevant for present purposes.

(e) Section 104D

58.  Section 104D contains certain deeming provisions, which is also immaterial to the present case.

(f) Section 104E

59.  Section 104E is a definition section.  Sub-section (1)(b) to (f)[12] designate different Government departments and officials and public authorities with management and control of land as the Authority for the purposes of section 104A, 104B and 104C.  For example, in respect of land within a country park or special area as defined in the Country Parks Ordinance, Cap 208, the Director of Agriculture, Fisheries and Conservation is the Authority : sub-paragraph (d).  Under sub-paragraph (f), in respect of Government land not referred to in section 104E(1)(b) to (e), the Director is the Authority.  Sub-sections (2) to (4) deal with the definitions of “land”, “occupier” and “bill or poster”.  Significantly, sub‑section (5) provides that nothing in Part IX of in any permission granted under section 104A shall operate so as to affect any obligation or liability imposed or incurred under any other enactment in relation to the display of any bill or poster.

(g) Its efficacy

60.  In sum, Part IX regulates displays of publicity materials on Government land by virtue of :

(1) Section 104A(1)(b), a permission-seeking provision for displaying of bills and posters on Government land;

(2) Section 104A(2), an offence-creating provision for displaying of bills and posters in contravention of section 104A(1)(b);

(3) Section 104B(1), a maintenance-keeping provision for displaying bills and posters in a clean and tidy condition to the reasonable satisfaction of the Authority;

(4) Section 104B(2), another offence-creating provision for displaying of bills and posters in contravention of section 104B(1);

(5) Section 104C(1), an enforcement-enabling provision for removal of bills and posters displayed in contravention of section 104A(1) or section 104B(1) and recovery of the costs of removal; and

(6) Section 104C(2), another enforcement-enabling provision allowing the court to order recovery of the removal costs upon conviction of an offence under section 104A(1) or section 104B(1).

61.  Plainly, the efficacy of the statutory scheme depends not only on section 104A(1)(b) and section 104B(1).  It also hinges on the back up provided by section 104A(2) and section 104B(2) in terms of criminal sanction and section 104C(1) and section 104C(2) in terms of enforcement action when the display is made in contravention of section 104A(1) or section 104B(1).  Indeed, without the backup, whether by criminal sanction or enforcement action, the regulatory regime is but toothless.

D3.2  Management Scheme

62.  As said, the Management Scheme is devised for implementing section 104A(1)(b) of the Ordinance in connection with designated spots on public roadsides which fall within the purview of the Director.  As such, it is part of the regulatory scheme in Part IX of the Ordinance.

63.  LD first promulgated the Management Scheme in May 2003, soon after the Director delegated his functions and powers under section 104A(1)(b) to LD on 23 April 2003.  The Management Scheme was recently revised in August 2011.  It is the only scheme that the Director or LD has ever published for the purpose of section 104A(1)(b).

(a) Its genesis

64.  Before the delegation, LD had been dealing with display of publicity materials on highways for years already.  The history of how LD dealt with the matter leading up to the promulgation of the Management Scheme in May 2003 and its revision in August 2011 is detailed in the affirmation of Ms Lam Wai-ha, Olga, Assistant Director of LD dated 29 January 2014, at §§10 to 36.  Below is a brief summary, highlighting some of the more salient points.

65.  LD had been dealing with display of publicity signboards and banners on highway structures before 1993.  In view of the growing tendency for political organizations and public figures to put up signboards to promote their platforms and publicise their community services and the trend that these publicity signboards were not always related to specific events, a pilot scheme was implemented in Wan Chai District for a trial period of two months (“1993 Pilot Scheme”). The 1993 Pilot Scheme was considered workable but was not immediately extended territory-wide because of resource constraints.

66.  In reviewing the 1993 Pilot Scheme, the Administration noted that it was necessary to strike a balance between environmental considerations and the legitimate need of organizations to advertise in public places and also necessary to impose appropriate conditions on the number of permitted display materials, the duration of display periods as well as sizes of display materials.  The policy on the display of publicity materials in public places was formulated with the protection of public interest in view and that this policy was applied to all groups in the same way in order to avoid favourable treatment being given to any group over other groups in respect of similar types of activities.

67.  Between November 1996 and April 1997, another pilot scheme was put in trial in Wan Chai District (“1996 Pilot Scheme”) to test the feasibility of a new control scheme, which was designed in response to public’s complaints about the nuisance created by the prevalent displays of unauthorized non-commercial publicity material at public places. Under the 1996 Pilot Scheme, 100 suitable spots were identified in Wan Chai District and designed for the display of non-commercial publicity materials. Of these 100 designated spots, 15 were reserved for District Office/Wan Chai, and 15 were reserved for Government departments’ use.  For the remaining 70 designated spots, half was for Wan Chai-related activities while the remaining half was for Wan Chai-not-related activities.

68.  The 1996 Pilot Scheme ended in April 1997.  In reviewing the 1996 Pilot Scheme, the Administration noticed a visible improvement in the environment of the district.  The amount of the unauthorised publicity materials was markedly reduced to a few dozen posters/banners etc compared with hundreds before implementation of the 1996 Pilot Scheme.

69.  The 1996 Pilot Scheme was considered a success as it enabled the Administration to take more effective and efficient enforcement action against the display of unauthorized publicity materials, and was supported by the then Wanchai District Board and by the local residents. Proposal was made to extend the scheme territory-wide.  With that proposal in mind, LD devised the Management Scheme in 2003.  The District Lands Offices of LD identified suitable designated spots for implementation of the Management Scheme in consultation with the District Management Committees in their respective districts.  Two rounds of consultation were conducted for this purpose with the stakeholders including the LegCo and the 18 District Councils between 1998 and 2002.  The Management Scheme was implemented in May 2003 after the Director had made the delegation in April 2003.

70.  In 2008, the Ombudsman published a report detailing recommendations on how to improve the 2003 Management Scheme.  Ms Lam noted :

“40. In paragraph 1.1 of the Ombudsman Report 2008, it was stated that :

‘ Publicity banners at roadside have for years been a feature of Hong Kong’s street scene. By nature, these banners constitute a form of encroachment upon public space and may cause visual obstruction and pollution. Where they block sightline and distract motorists or wear out and come loose, they post traffic hazard, for drivers and pedestrians. Display of such banners should, therefore, be properly monitored and controlled.’

41. In paragraphs 1.3, 1.4 and 1.5 of the Ombudsman Report 2008, it was stated that the Ombudsman had completed a direct investigation assessment in August 2006 on whether appropriate measures were in place to prevent proliferation of roadside banners and to ensure their secure installation and timely removal. On completion of the assessment, the Ombudsman made a number of suggestions to Lands D and FEHD, such as limiting the number of designated spots, tightening the criteria for designation of spots, imposing requirements to ensure tidiness, removing dilapidated banners in a timely manner and keeping statistics. Despite the aforesaid developments, complaints had continued to be lodged with the Ombudsman Office on how roadside banners were being used. The Ombudsman saw a need to examine the 2003 Management Scheme in greater detail and, on 19 September 2008, informed the Lands D of her decision to initiate a direct investigation under section 7(1)(a)(ii) of the Ombudsman Ordinance (Cap 397). The aforementioned was the background giving rise to the Ombudsman Report 2008.

42. In paragraph 2.3 of the Ombudsman Report 2008, the Ombudsman commented that the display spots were prime sites on public streets and certain parties being authorised to display their materials at such spots were indeed a privilege at public expenses. In paragraph 4.1 of the Ombudsman Report 2008, it is stated that :-

‘The Scheme involves, and in a way impacts on, the rights of citizens to traffic safety, unimpeded movement and a pleasant environment. The banner spots provided under the Scheme are prime spaces at public locations. To this extent, [Legco and/or DC members] or organisations allocated the spots enjoy a concession at public expenses. Sacrifice of such rights ought to be justified on grounds of public interest and use of the spots, properly controlled. There should be stringent rules to ensure the proper use of these valuable concessions, hence, the need for a clear statement of the objective of the Scheme and due compliance with any rules for its proper administration. It is important for Lands D staff and the public to appreciate why the spots are made available to certain individuals and organisations and why it is necessary to control the use of the spots….’

43. Paragraph 5.1 of the Ombudsman Report 2008 stated that : -

‘Many prominent cities in the world place much emphasis on protecting the aesthetics of their public space.  An attractive cityscape can contribute to economic benefits and better quality of life.  Proliferation of roadside banners, often dirty and tatty, is widely regarded to be detrimental to the outlook of a city.  Furthermore, many city authorities spare no effort to guard against the traffic hazard posted by roadside banners….’ ”

71.  The Administration took into account the Ombudsman’s recommendations and after consulting the LegCo and the District Councils in 2010 and 2011.  The Management Scheme was then revised in August 2011.

(b) Overview of the Scheme

72.  In its current form, the Management Scheme states in Part 1 that it 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 seek 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 …

(b) is permitted in an orderly fashion of those classes of person 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 banners.”

73.  Pursuant to Part 2, designated spots will, upon application and subject to availability, be allocated to members of the Legislative Council, members of the District Councils, District Councils and their committees, Government departments and non-profit making bodies.  As evident from the application form, applications by individuals other than members of the LegCo or the District Councils will not be entertained.  Ms Olga Lam explained the apparent preferential treatment thus :

“52. Given the scarcity of the land resources, the Administration has taken the view that it is necessary to prioritize the allocation of the designated spots under the Management Scheme, especially in light of traffic safety and proper cityscape considerations. Under the Management Scheme, priority is accorded to LegCo and DC members because they represent group interests, namely, the interests of the electorates who cast their votes for the elected members. Display of roadside [publicity materials] serves as a major way for the LegCo and DC members to keep their constituents informed of their work and community activities. It is also considered that LegCo and DC members, non-profit organisations and Government departments shall be accorded with priority because they often publicise matters of a public nature for the promotion of public awareness of matters of general and significant community interest.”

74.  Parts 3 and 4 specify the term of the display and the size of publicity materials.

75.  Part 5 specifies that :

“Designated spots will be located on the roadside only excluding expressways, flyovers and the external faces of footbridges….”

76.  Part 6 designates various “no banner zones” according to road safety purposes.

77.  Part 7 deals with the contents of publicity materials in these terms :

“(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.”

78.  Part 8 deals with processing of applications.

79.  Part 9 prescribes the manner of how to display and manage the publicity materials concerned.  It ends with this warning :

“(g) Publicity materials which are unauthorized or not in compliance with these implementation guidelines and/or any of the terms and/or conditions that the District Lands Officer has imposed in relation to the relevant permission will be removed by [the Director] without prior notice pursuant to his authority under [the Ordinance]. [The Director] may take legal action and claim removal expenses against the parties concerned.”

80.  Importantly, the Management Scheme is limited in two ways.  First, it only covers the spots on public roadsides as designated.  Second, an individual cannot apply under it unless he is a LegCo or District Council member.[13]  However, as the Director has expressly reserved all the functions and powers under section 104A(1)(b) to himself despite the delegation to LD in April 2003, any application to use any Government land falling outside the Management Scheme or any application by an individual member of the public (whether or not the spot for the intended display falls within the Management Scheme) may be made to the Director directly.

D3.3  Legitimate aims of the regulatory scheme

81.  In my view, the regulatory scheme in Part IX of the Ordinance together with the Management Scheme (where applicable), serves the following legitimate aims.

82.  First, it strives at protecting and preserving the cityscape of Hong Kong.

83.  A cityscape is the view or outlook of a city.  It is the city’s urban scenery.  It helps define its image and character.  It reflects the living and synthesis of its citizens.  It is the backdrop to their daily lives and activities.  An attractive and well-maintained cityscape is very often a testimony to the city’s success.  It betters the quality of life.  It attracts tourists, too.  It is indeed a huge public asset.

84.  Our Government promotes Hong Kong as Asia’s world city.  To this end, Hong Kong, like any prominent city in the world, needs to protect and preserve its cityscape and the aesthetics quality of public places.

85.  The regulatory scheme ensures that our cityscape and public places would not be subject to environmental nuisances and pollutions caused by haphazard, tardy or unsightly displays of publicity materials and its proliferation.  It confers on the Authority and its delegate the discretion to refuse or give permission and in the latter case to impose conditions on the displays as required by the circumstances of the case.  It prohibits displays of materials displayed without the Authority’s permission.  It subjects the person who contravenes section 104A(1) and section 104B(1) to criminal sanction.  It empowers the Authority to take enforcement action to timely remove the materials displayed in contravention of section 104A(1) or section 104B(1).

86.  More specifically, the Management Scheme keeps the displays within reasonable bounds by :

(1) designating spots for displays of publicity materials, thus limiting its number and locations where they appear to a reasonable extent;

(2) specifying the dimensions of the publicity materials, thus keeping them within a reasonable size;

(3) specifying the duration of the displays, thus limiting their occupation of the spots within a reasonable time; and

(4) requiring the persons displaying the publicity materials to manage them properly in the way as specified, thus ensuring that they are tidy and orderly and that dilapidated displays are removed timely.

87.  Second, Hong Kong’s public places are public resources available to all its citizens.  They are open to all for lawful and reasonable use and enjoyment.  Nobody has or can possibly claim any monopoly of 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 the public places involves displaying publicity materials, it will not unduly interfere with other citizen’s use or enjoyment of the same for other legitimate purposes.  For example, it prevents environmental nuisances and pollutions, which the latter might justifiably regard as an encroachment on the public amenities that they are entitled to use and enjoy.  It reduces the traffic risks that publicity materials may impose on other public road users who would rightly regard safety as a prime concern.  In short, it balances the competing interests between displayers on the one hand and other citizens on the other over the use and enjoyment of public places.

88.  Third, given the scarcity of public places and the growing demand for displaying publicity materials, the regulatory scheme ensures that, as far as the actual circumstances reasonably allow, there would be a fair and if necessary, as in the case where the Management Scheme applies, a reasonably prioritised distribution of available spots for displays among the displayers.

89.  Fourth, most of the displayers would naturally opt for popular spots to display their materials. But popular spots are very limited.  In the absence of control, chaos would arise when different displayers flock to the same spots.  Chaos might easily deteriorate into serious disputes, commotion or even physical violence when competing groups pursuing diametrically opposing interests seek to display their materials at the same spots at the same time.  The social costs involved could be huge.  The facts leading to the present judicial reviews are a vivid example of the kind of social conflict that could happen in a wholly unregulated environment.  In imposing control, the regulatory scheme minimizes the risk of such unpleasant and sometimes unlawful incidents.

90.  Fifth, when publicity materials are displayed on public roadsides, they can pose considerable traffic risks to road users.  The regulatory scheme, in particular the Management Scheme, ensures that displays of materials on the roadsides are properly monitored and controlled so that the traffic risks might be reduced.

91.  Sixth, as the displays of publicity materials on public places are making use of public resources, they should not be made for any commercial gain or any other purpose which is inconsistent with public good or interest. The Management scheme ensures that the contents of the publicity materials are not commercial in nature, defamatory, indecent or otherwise unlawful.

D3.4  Restrictions on the exercise of freedoms

92.  That said, having regard to the principles stated in §§33–39 above, there can be little doubt that the regulatory scheme in Part IX of the Ordinance also restricts the exercise of the freedoms of expression, assembly and demonstration as guaranteed by Article 27 of the Basic Law, Article 16 and 17 of the Bill of Rights.

93.  There are many modes of exercising the freedoms of expression, assembly and demonstration.  Whichever mode is to be adopted, the main consideration basically appears to be the same : to communicate to others the views held or advocated by the persons exercising the freedoms in what they perceive as the best or most effective way, with a view to promoting their agenda or advancing their cause as far as the circumstances may reasonably permit.  They would choose a particular mode which would best suit their purpose.  They would also favour a particular mode which would give their views a wide and, if possible, a constant exposure, and which would easily attract the attention of their target audience, the media and the public at large.

94.  As a mode of exercising the freedom of expression, displaying publicity materials on public areas, especially in areas frequented by the public or the targeted audience, has the obvious advantage of publicizing the views in a rather expedient way; and of giving the views a wide exposure and even a lengthy and continuous exposure, if the display has a degree of permanency.  When, as is the present case, publicity materials displayed at a particular location forms the backdrop of an assembly or demonstration held there, the display is conducive to the persons’ exercise of their freedoms of assembly and demonstration in such a way.

95.  Section 104A(1)(b), as a permission-seeking permission, restricts a person’s exercise of his freedoms of expression, assembly and demonstration by requiring him to obtain written permission from the Director before he can display publicity materials used for such purpose.  As an important feature of the permission-seeking regime, the Management Scheme imposes the same restriction as section 104A(1)(b) does and other restrictions on the location, size, duration and contents of the displays of publicity materials that fall within its scope.

96.  Section 104A(2), the offence-creating provision, imposes the restriction by subjecting the displayer to criminal sanction if he contravenes section 104A(1)(b).

97.  Section 104C(1), the enforcement-enabling provision, imposes the restriction by empowering the Director to remove the publicity materials displayed in contravention of section 104A(1)(b) when such materials may be instrumental or conducive to the exercise of the freedoms.[14]

98.  The next crucial question is to identify for present purposes the provision that needs to be scrutinized constitutionally and to see if it survives the scrutiny.

D4.   Constitutional scrutiny

D4.1  The applicants’ contentions

99.  The applicants’ primary argument in support of Ground 1 is that both section 104A and the Management Scheme are unconstitutional as they unlawfully infringe the FLG demonstrators’ exercise of the freedoms of demonstration, assembly and expression.  Their case is best summarized by Mr Hui in his 2^nd affirmation :

“9. …to require [FLG] practitioners to obtain permission for display of their demonstration banners by any kind of prior approval process is an unreasonable and unnecessary restriction of the lawful exercise of the freedoms of demonstration, assembly and speech as protected under the Basic Law and the Bill of Rights. For the avoidance of doubt, my contention is that any approval process is such an unreasonable and unnecessary restriction, irrespective of which particular approval method is imposed, and irrespective of whether or not a system operated for the grant of approval involves a management scheme or any particular management scheme.”

100.  In developing the applicant’s case, Mr Harris, SC focused on the proportionality requirement.  He argued that section 104A has no application when the applicants were demonstrating in a reasonable manner when the demonstration only lasts for hours and the publicity materials are removed afterwards.  In such scenario, no prior permission from the Director for displaying the publicity materials is required.  He did not object to a regulatory scheme for unauthorized publicity materials.  What he objected to is simply to the inappropriate application of that scheme to demonstrators’ banners.  He did not argue that permanent displays of publicity materials in public places should be excluded from regulation. He however argued that banners displayed at the applicants’ demonstrations are not subject to regulation as they are not permanent, being removed after every demonstration.  He did not contest that the regulatory scheme can serve a legitimate aim which includes controlling traffic risks.  But he contested that it cannot be legitimate to apply to scheme to banners displayed for a limited period as part of a demonstration.  Referring to the definition of “a bill or poster” in Section 104A(1) of the Ordinance, he contended that the scope of section 104A is unduly wide.  Referring to Part 7 of the Management Scheme, he further argued that prior regulation of the content of political speech is deeply objectionable.  He accepted that the regulatory scheme engages “free speech issues” and it is a permissible restriction on free speech because of public order and public amenity importance of not having unrestricted displays of publicity materials.  However, he argued that only when the applicants were demonstrating in a reasonable manner did it become permissible to rely on section 104A.  He therefore contended that section 104A should be read down so that the applicants’ right to display publicity materials for the purpose of their demonstrations.  In support of his contentions, Mr Harris relied on HKSAR v Yeung May Wan & Others [2004] 3 HKLRD 797, Westminster City Council v Brian Haw [2002] EWHC 2073 and the decision of the US Supreme Court in Shuttlesworth v Birmingham, 394 US 147 (1969).

101.  As a subsidiary argument, Mr Harris referred to the Advertisements Regulations which, he reasoned, could sufficiently regulate displays of publicity materials.  He also relied on various provisions in the Summary Offences Ordinance, Cap 228 and the Public Order Ordinance, Cap 245 and the common law offence of public nuisance which according to him could adequately regulate the conduct of demonstrations without recourse to the regulatory scheme in Part IX.

D4.2  Correct approach

102.  The attack against the constitutionality of section 104A(1)(b) and the Management Scheme comes in the forefront in the applicants’ case on Ground 1.  However, all the Decisions were either made directly under or referable to section 104C(1), the enforcement-enabling provision.  That being the case, the first and foremost question concerns the constitutionality of section 104C(1) and not section 104A(1)(b) or the Management Scheme.  One cannot simply assume that the constitutionality of section 104C(1) is necessarily dependent on the constitutionality of section 104A(1)(b) or the Management Scheme.  Whether it is so depends on a proper construction of section 104C(1).  If section 104C(1) is free standing, in the sense that it survives constitutionally scrutiny regardless of the validity of section 104A(1)(b) and the Management Scheme, then the decisions cannot be impugned on the ground that section 104A(1)(b) and the Management Scheme is unconstitutional. I derive support for this approach from the judgment of the Court of Appeal in Secretary for Justice v Ocean Technology Ltd & Others [2009] 1 HKC 271.

103.  There, Ocean Technology applied for a licence to operate a non-commercial and non-profit making FM radio called “Citizens Radio Station” to provide a community radio service. That application was rejected by the Chief Executive in Council.  But before the rejection, Ocean Technology, its sole shareholder and one of its directors conspiring with others established a transmitting system and allegedly thereby engaged in broadcasting without a licence.  They were subsequently charged with 14 offences contrary to sections 8 and 20 of the Telecommunications Ordinance, Cap 106.  They pleaded not guilty to the offences.  They contended that the provisions to which the charges were laid were unconstitutional and contrary to BL27 and BOR16.  The magistrate determined the constitutional issue on the basis of whether the licensing regime was prescribed by law as required by BL27, BL39 and BOR16(3).  He concluded that the provisions were unconstitutional as not being prescribed by law because the discretion of the Chief Executive in Council was unfettered and the decision was entrusted to a body not independent of government.  He then dismissed the charges.  The Court of Appeal allowed the Secretary’s appeal and remitted the case back to the magistrate’s court for resumption of trial.

104.  Stock JA (as he then was) identified the real issue before the court when he said :

“61. A preliminary point is taken upon this appeal, namely, that the magistrate had no jurisdiction to consider the constitutional challenge to the licensing scheme prescribed by the Telecommunications Ordinance. It was not a point argued in the court below.

62. The contention is that the challenge thus advanced was to an issue collateral to that in the criminal proceedings and that the Telecommunications Ordinance (the Ordinance), properly construed, does not permit a defendant to a charge under ss 8 and 20 of the Ordinance to impugn the constitutionality of the licensing procedure by way of defence. It is argued that the correct and only avenue for such a challenge by an applicant who is refused a licence is an application for judicial review.

63. We were treated to an extensive examination of authorities which have addressed the issue whether (and, if so, to what extent) a defendant might raise as a defence to a criminal charge the validity of a decision taken pursuant to statutory authority or whether he was consigned instead to running such an issue in proceedings for judicial review.

64. Although the issue is raised before this Court as a preliminary question, not canvassed in the court below, it arises in any event, so it seems to me, from the final question posed by the case stated. That final question – had it been more appropriately framed – is the one with which the analysis in the court below ought to have commenced. Had it been, and had the correct conclusion been reached, none of the other questions with which the court below or this Court have been burdened would have presented themselves for determination.

65.     The final question in the case stated asks whether charges ‘founded upon a failure to comply with [an unconstitutional licensing] regime are also unconstitutional.’  But the charges were not founded on a failure to comply with a licensing regime.  There was an application for a licence.  That application was lawful and regime-complicit.  What was at issue – and, aside from the question whether the respondents had indeed established means of telecommunication or used a transmitting system, it could be the only relevant issue – was whether the respondent company had a broadcasting licence and, if not, whether the offence-creating provision was itself unconstitutional as impermissibly infringing a protected right.  If the offence‑creating provision is free-standing, in the sense that it survives constitutional scrutiny regardless of the validity of the licensing regime and of the licensing decision, then the remaining issues addressed by the magistrate – and by the case stated – were and are irrelevant.”

105.  His Lordship then went on to note the concession that control of airwaves by a ban on broadcasting without a licence was of itself a permissible fetter upon the freedom to impart and the right to receive information and opinion as an ingredient of the freedom of expression.  (§66)  He then explained with authorities in support why the concession was correctly made.  (§§67-69)

106.  Addressing the real issue as identified, Stock JA said :

“87. There was in this case no bye-law or regulation the breach of which was an ingredient of the offence with which the respondents were charged. So no question of the vires of a bye‑law or regulation arose for determination.

88. There was in this case no notice or order issued the validity of which order or notice might therefore be relevant as a defence to a charge of breaching the order or notice.

89. There was in this case no act done under statutory authority the validity of which act formed part of the prosecution case. Neither the decision to refuse a license nor any act done or omitted to be done in consequence of that decision constituted a necessary ingredient of the offence charged.

90. The only relevant issues in the prosecutions that were launched were these:

(1) Did the respondents commit the primary acts with which they were charged, namely, establish means of telecommunications or use a transmitting system or conspire to do so, as the case may be;

(2) If that were proved, had a licence been granted by the Chief Executive in Council or by the Telecommunications Authority permitting them to establish or to use such a system; and

(3) If no such licence had been granted, whether the offence-creating provision was an impermissible infringement of an established right.

91. The refusal to issue a license did not … have the purported effect of taking away a right in law that the applicant had previously enjoyed. That is because the provisions of the Basic Law and of the Bill of Rights Ordinance which guarantee freedom to impart and to receive ideas cannot, if given a purposive interpretation, and for reasons I have earlier provided, confer an unfettered right on individuals to avail themselves of broadcasting frequencies.

92. Evidence was adduced in this particular case that users of radio frequency spectrum in Hong Kong include the police, fire and ambulance services and the Civil Aviation Department. Unrestricted access to that spectrum would run a cogent risk of interfering with those vital services as well as of interfering with the rights of listeners to existing regional and international radio stations. It is no doubt in recognition of the scarce resource that is constituted by the radio spectrum, of the potential for chaos presented by unrestricted access to that spectrum, and of the infringement of the right of others to impart and receive information that would result from unregulated access, that the respondents accept that there can be no right to the airwaves, and that the requirement of s 8 that broadcasting shall only take place where licensed is not an infringement or an unjustifiable infringement of any of the guaranteed rights with which this case is concerned.

93. That being the case, it is impossible, in my judgment, reasonably to construe the offence-creating sections in this case (s 20 read with s 8) as permitting the establishment of a telecommunication system or its use if such licensing system as is in place is in some material respect not prescribed by law; or as permitting broadcasting if the decision-making process by which a particular licence has been refused is, or might be shown to have been, unlawful on one or more public law grounds.

94. A proper construction of ss 8 and 20 of the Ordinance is one that recognises that it must have been the legislature’s intention that the legality of a licensing decision or of an aspect of the licensing scheme at any given time was not a necessary ingredient of the offence. It would be as unrealistic and non-contextual to suggest that, as it would to contend that in enacting a provision that prohibited the driving of a motor vehicle without a licence, the legislature intended that it would be a defence to a charge of driving without a licence to show that, upon a driving test, the driving examiner ought not to have refused the examinee his full licence or to show that the criteria for granting driving licences were insufficiently precise to meet the test of prescription by law.

95. It must follow that it was the legislature’s intention that if an applicant for a broadcasting licence wishes to attack the statutory licensing system, or a licensing decision, he must do so once he has made an application and has received a response which might be impugned at law. In a prosecution for an offence under ss 8 and 20 of the Ordinance, it is not open to a defendant to raise by way of defence the legality of a licensing decision or of the licensing scheme. Any other construction would, in my opinion, be contrary to the clear policy of the legislative scheme as a whole.

96. As Cheung J emphasises in the judgment which follows, none of this is to suggest that it is not open to a defendant to challenge, as a defence to a charge, the constitutionality of the offence-creating provision directed against him. To the contrary, it is always open to a defendant to do so as has been illustrated in a number of instances in this jurisdiction. It is merely to say that in this case the constitutionality of the offence did not depend on the validity of the licensing regime and it is in assuming that it did that the magistrate went wrong.

…

98.     It follows that the question of legal certainty which is the theme of the case stated is a question that did not arise in the case which the magistrate had to try.  If, however, one allows oneself to be drawn into the questions posed at all, the only question that requires answering to dispose of this appeal is the last.  That question asks whether, given the finding that the licensing regime was unconstitutional it followed that any charges ‘founded upon a failure to comply with that regime are also unconstitutional?’.  The answer I would give to that question is No; because even supposing that the premise was correct (that the regime is unconstitutional), the offence-creating provision did not engage the legality of the licensing regime.”

107.  In a similar analysis, A Cheung J (as the Chief Judge then was) said :

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

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

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

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

123. Therefore, in the prosecution of the offence, the accused may always challenge the constitutionality of the offence itself as being an unjustifiable restriction on his rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights. But it does not follow that he can put in issue the constitutionality of the restriction represented by the licensing regime or that by the refusal of a licence (if one has been applied). Whether he may do so depends entirely on whether, on the proper construction of the offence, its essential elements include the constitutional validity of the licensing regime and/or the refusal of a licence in question.

124. In other words, if, on its proper construction, the offence prohibits broadcasting etc in the absence of a constitutionality valid licence granted under a constitutionally valid licensing regime, the accused will be quite entitled to put the constitutionality of the licensing regime or the refusal of a licence in the particular case in issue. But not otherwise.

125. For the detailed reasons given by Stock JA in his judgment, I have no doubt that in the present case, the constitutional validity of the licensing regime does not constitute an essential ingredient of the offence under s 20 as read with s 8(1) of the Telecommunications Ordinance. In other words, whether the licensing regime is a constitutionally justifiable restriction on the rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights or whether it amounts to an unjustified restriction is immaterial to the case that the prosecution has to prove. So for that reason, the magistrate should not have gone into it at all.

126. Likewise, I am satisfied, for the reasons explained by Stock JA that the constitutionality of the refusal of a licence in a particular case is not something that the prosecution needs to establish. For that reason, it is also not a matter that a magistrate need or should go into.

127.   In other words, it is quite plain, as a matter of legislative intent, that regardless of the constitutional validity of the licensing regime and/or the refusal of a licence in question, the legislature intends to prohibit broadcasting etc in the absence of a licence from the Chief Executive in Council.”

108.  His Lordship then dealt with the constitutionality of the offence-creating provision in the Telecommunications Ordinance :

“128. However, that does not mean that no issue of constitutionality arises or can arise. As said, the offence, by itself, constitutes a restriction, on the pain of criminal sanction, on the rights guaranteed under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights. This restriction, like any other purported restriction on a non-absolute constitutional right, requires justification in order to be lawful and valid. The criteria for justification, in the present case, are found in art 39(2) of the Basic Law and art 16(3) of the Hong Kong Bill of Rights.

129.  In other words, the constitutionality of s 20 of the Ordinance does require consideration.  But the consideration required is quite different from the consideration that would have been required to determine whether the licensing regime and/or refusal of a licence in a given case are justifiable constitutionally if their constitutional validity had been an essential element of the offence.”

His Lordship went on to apply the proportionality test and for the reasons he gave at §§130-135 concluded that the test was satisfied and the offence creating provision was constitutionally justified.

109.  I digress to note that how the Court of Final Appeal disposed of the appeal in Leung Kwok Hung, supra lends support to the Court of Appeal’s approach in Ocean Technology.

110.  There, the 1^st defendant was convicted of holding an unauthorized assembly and the 2^nd to 3^rd defendants of assisting in the holding of that unauthorized assembly, contrary to section 17A(3)(b)(i) of the Public Order Ordinance, Cap 245.  The offences arose out from a peaceful procession of between 40 to 96 people.  The 1^st defendant refused to go through the statutory notification procedure, despite a warning from the police.  Section 13A of the Public Order Ordinance provided that before such procession could take place, the Commissioner of Police had to be notified in writing and given particulars such as to its purpose, time, route and estimate numbers.  The Commissioner then had a discretion to object to the procession under section 14(1) if he reasonably considered this was “necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedom of others.  He was obliged under section 14(5) not to object if he reasonably believed that the relevant statutory legitimate purposes could be met by imposing conditions, which he was empowered to do under section 15(2).

111.  The issue on appeal to the Court of Final Appeal was whether the statutory scheme for regulating public procession was contrary to the right to freedom of assembly in Article 27 of the Basic Law, Article 21 of the International Covenant on Civil and Political Rights; and the corresponding Article 17 of the Bill of Rights.  The majority of the Court of Final Appeal held that the Commissioner’s discretion to restrict the right of peaceful assembly for the statutory purpose of “public order (ordre public)” fell foul of the “prescribed by law” requirement as it plainly did not given an indication of the scope of that discretion.  The appropriate remedy was the severance of public order (in the law and order sense), which was sufficiently certain, from “public order (ordre public)” in the relevant provisions of the Public Order Ordinance.  After severance, the Commissioner’s discretion in relation to public order (in the law and order sense) satisfied the “prescribed by law requirement” and the “necessity requirement” and was constitutional.

112.  In disposing of the appeal, the majority of the Court of Final Appeal held :

“97. The offences for which the appellants were convicted did not relate to the statutory provisions conferring on the Commissioner the discretion to object or to impose conditions on a public procession where he considers it reasonably necessary in the interests of ‘public order (ordre public)’. The offences arose out of the holding of a public procession without complying with the statutory notification requirement. The holding that ‘public order (ordre public)’ in the relevant statutory provisions is unconstitutional and that public order should be severed from it does not affect the convictions. Accordingly, the appeal must be dismissed and the convictions upheld.”

113.  Plainly, in upholding the convictions, the majority of the Court of Final Appeal did not consider that the validity of the relevant offence‑creating provision in the Public Order Ordinance was dependent on the constitutionality of another component in the regulatory scheme for public procession.  They were separate and distinct.

114.  Applying the approach as articulated by the Court of Appeal in Ocean Technology, three questions arise for determination in the present context :

(1) Whether on a proper construction of section 104C(1), the enforcement-enabling provision, the constitutionality of section 104A(1)(b), the permission-seeking provision, and the Management Scheme, is a necessary ingredient that triggers the former’s operation resulting in the Decisions.  (Question 1)

(2) If the answer to Question 1 is yes, whether the restrictions imposed by section 104A(1)(b) and the Management Scheme are constitutionally justified.

(3) Even if the answer to Question 1 is “no” or the answer to Question 2 (if arisen) is “yes”, whether the restriction imposed by section 104C(1), the enforcement-enabling provision, is on its own constitutionally justified.  (Question 3)

115.  I will consider these questions in turn.

D4.3  Question 1

116.  Section 104C(1) simply provides that when a bill or poster is displayed in contravention of section 104A(1)(b), the Authority, that is, the Director for present purposes may remove them and recover the cost of removal from the displayer.  The contravention involves 2 ingredients only :

(1) Failure to obtain the written permission from the Director; and

(2) Display of the materials without the Director’s permission.

Once a display is made without the Director’s permission, section 104C(1) bites.  No further ingredient is necessary.

117.  As I have explained in §61 above, section 104C(1) is essential to the efficacy of the regulatory scheme in Part IX.  The Director’s power to remove the publicity materials displayed without his permission is a necessary measure to rectify the contravention of section 104A(1)(b) timely and to deter similar contraventions from happening in the future.  On a proper construction, to give section 104C(1) its full effect and vigour it must have been the legislative intention that the constitutionality or legality of section 104A(1)(b), any scheme devised for the purpose of implementing section 104A(1)(b) (the Management Scheme in the present case), or a particular decision made under either section 104A(1)(b) or the scheme, is not a necessary ingredient which triggers the operation of section 104C(1).  The legislature must have intended that any constitutional challenge against section 104A(1)(b) or the scheme can only be brought when a person has made an application to the Direction or his delegate (LD in the present case), as the case may be, for permission and the Director or his delegate has made a decision which he considers to be capable of being impugned at law.[15]

118.  The answer to Question 1 is “no”.

D4.4  Question 2

119.  In light of my conclusion on Question 1, Question 2 does not arise.

120.  For completeness, I would very briefly deal with Mr Harris’s attacks against the legality of section 104A(1)(b) and the Management Scheme.

121.  I first deal with section 104A(1)(b).  As noted, the main plank of Mr Harris’s contentions is that by applying the proportionality test, section 104A(1)(b) should be read down so that it does not prohibit, or require approval to be obtained for, reasonable display of banners or placards at the FLG demonstrations.  With respect, I disagree.

122.  As I have set out in §§82-91 above, the regulatory scheme in Part IX of which section 104A(1)(b) is a key component serves various legitimate aims.  Those powerful societal justifications do not diminish simply because the displays of the publicity materials are not permanent or for the purpose of holding a demonstration.

123.  Nor can the applicability of section 104A(1)(b) be dependent on the perceived reasonableness of the manner in which the demonstration is held.  It is quite inconceivable that a demonstrator would ever regard the manner in which he is going to hold his demonstration to be unreasonable.  So even if in fact the manner of the demonstration is, viewed objectively, unreasonable, the reality is that the demonstrators would rarely seek the Director’s prior permission to display the publicity materials under section 104A(1)(b), thus rendering it ineffectual if not meaningless.

124.  Mr Harris’s reliance on Yeung May Wan, Haw and Shuttlesworth is all misplaced.

125.  In Yeung May Wan, a group of FLG demonstrators held a peaceful demonstration outside a building containing the Liaison Office of the Central People’s Government to protest about alleged mistreatment at the hands of Mainland authorities and other grievances.  The demonstration included displaying a banner.  Soon after the demonstration, police arrived and erected barriers blocking one route into the building from the pavement.  Police gave five warnings to the effect that if they did not disperse, they would be arrested.  Eventually, the demonstrators were arrested.  They resisted attempts to be removed and there was further resistance at the police station when nine members of the group strongly resisted leaving the vehicle.  There was more violence in the briefing room with various police officers injured.  The defendants were convicted by a magistrate of obstruction of a public place by setting out the banner, contrary to section 4A of the Summary Offences Ordinance, Cap 228 (the first charge), and doing an act whereby obstruction might accrue to a public place by assembling together and displaying the banner, contrary to section 4(28) of the Summary Offences Ordinance and other charges of obstructing the police and assaulting a police officer.  On appeal, the Court of Appeal allowed the appeal on the first and second charges but dismissed the appeal on other charges.

126.  Ma CJHC (as the Chief Justice then was), with whom Woo VP agreed, approached the matter by asking two questions, namely, whether the accused had done any act whereby actual or potential injury of obstruction might accrue to a public place; and if so, whether the accused had any lawful authority or excuse.  On the first question, there was evidence to justify that obstruction, actual or potential, was caused by the defendants.  On the second question, prima facie there was a lawful excuse because there was little doubt that the defendants were exercising and believed they were exercising their constitutional rights of expression, assembly and demonstration.  Independent of the police warnings, they were not aware that they had somehow overstepped the mark so that permitted restrictions on those constitutional rights became relevant.  It was incumbent on the magistrate to consider whether the police had sufficient justification to curtail the demonstration.  This involved conducting a balancing exercise between the constitutional rights on the one hand and those of the rest of the community on the other but the magistrate had failed to consider the whole of the evidence.

127.  Stock JA agreed with the results of the appeal but on the approach, he said that assuming that the presence of the group caused an obstruction, the defence of lawful excuse had been made out because there was reasonable use of the space outside the Liaison Offices.  First, the question of reasonableness could only be answered if due recognition was accorded to the fact that the activity in which the defendants were accorded to the fact that the activity in which the defendants engaged was inherently lawful, and was an exercise of a fundamental right to which the Basic Law gave specific protection.  Second, a point upon which Mr Harris placed reliance, reasonable use of a highway contemplated more than passing and re‑passing.  The use of a highway for the purpose of a peaceful assembly was prima facie lawful.  So the true question was whether this lawful use of the highway reasonably impeded the primary right of the public, including those wishing to gain access to the Liaison Offices, to pass and re-pass and to gain access.  The evidence showed that there was ample room for pedestrians as well as office workers safely to pass and to gain access to the building.  The magistrate had accorded too little regard to the right of assembly and protest and had applied too restrictive a test to the issue of reasonableness as it arose when two fundamental rights competed for space on a highway.

128.  Mr Harris submitted that it was never suggested by the Government that action against the FLG demonstrators in Yeung May Wan might be justified because their banner was displayed on Government land without permission in contravention of section 104A(1)(b).  Had it been so suggested, Mr Harris submitted that the Court of Appeal would have held that section 104A had to be read down in the way as he has suggested above, which means that no prior permission from the Director was necessary for displaying the banner.  I am unable to accept this submission.

129.  The issues before the Court of Appeal concerned the obstruction offences under the Summary Offences Ordinance.  They had nothing to do with the question whether permission was required for displaying the banner under section 104A(1)(b) of the Ordinance. That question was not even before the Court.  It is no more than mere speculation as to what the Court might decide if that question were raised before it.  More importantly, Mr Harris’s speculation does not sit well with the enforcement policy behind section 104C(1) of the Ordinance.  According to FEHD’s “Operational Guidelines on Enforcement Action against Unauthorised Non-commercial Publicity Materials under the ‘LD’ Revised Management Scheme” dated March 2013 (“the Operational Guidelines”) :

“38. For display of unauthorised [non-commercial publicity materials] during demonstration/petition/public assembly of one‑off nature instead of on a regular and frequent basis (eg 1^st July Rally), any removal of [non-commercial publicity materials] of such kind will only inflame the situation. To avoid confrontation, [the enforcing officers] should go to the scene after the demonstration/petition/public assembly and take the steps prescribed in paragraphs 18 to 21 above to remove any [non‑commercial publicity materials] left at the scenes.”

The enforcement policy might well explain why no enforcement action was taken to remove the banner displayed in aid of the demonstration in Yeung May Wan, which was a one-off incident.

130.  In Haw, the defendant staged a protest from the pavement in Parliament Square even since June 2001 for some 15 months by displaying there a considerable number of placards supporting his protest.  He had been doing so on a 24 hour a day basis, every day, since then.  The Westminster City Council applied for a final injunction that the defendant ceased the obstruction in Parliament Square and elsewhere in Westminster and that he removed the placards and other paraphernalia.  The application was based on the Highways Act under which the plaintiff had to establish that the defendant had without lawful authority or excuse, wilfully obstructed the free passage along a highway.  Gray J found that the fact of physical obstruction was established and that the obstruction was wilful.  But the plaintiff must also establish that the obstruction was unreasonable.  In assessing the question of reasonableness, Gray J recognized and gave weight to the fact that the defendant was exercising his European Convention right to freedom of expression.  He said :

“24. Mr Powell (for the plaintiff) rightly points out that the right to freedom of expression is not unqualified by Article 10.2. Interference with the right is permissible where it is necessary – that is, where there is a pressing social need – to do so in order to protect the rights of others. Mr Powell submits that there is such a need to protect the right of pedestrians to pass and re-pass along the pavement in Parliament Square. He also mentioned the right of other protestors to protest from the pavement. I certainly do not accept that Article 10 is a trump card entitling any political protestor to circumvent regulations relating to planning and the use of highways and the like, but in my judgment the existence of the right to freedom of expression conferred by Article 10 is a significant consideration when assessing the reasonableness of any obstruction to which the protest gives rise. I am not satisfied in the circumstances of this case that there is any pressing social need to interfere with the display of placards so as to protect the right of others to pass and re-pass. Objection may be taken to the defendant’s activities on the ground that they constitute an eyesore, but that is a different matter. Moreover, as already mentioned, there is a requirement in section 12.4 of the Human Rights Act that on an application of the present kind, I should pay particular attention to the right of freedom of expression.

25. Looking at the issue of reasonableness in the round, and taking account of the duration, place, purpose and effect of the obstruction, as well as the fact that the defendant is exercising his Convention right, I have come to the conclusion that the obstruction for which the defendant is responsible is not unreasonable. Accordingly, I decline to grant the injunction sought.”

131.  Haw was a decision on its particular facts. And on its facts, the obstruction by displaying the placards was not unreasonable and therefore the application for injunction was refused.  I do not think it supports Mr Harris’s general proposition that in the context of Part IX of the Ordinance prior permission from the Director for displaying publicity materials on Government land for holding an assembly or demonstration in a reasonable manner is not required.

132.  In Shuttlesworth, the petitioner, a Negro minister who helped lead 52 Negroes in an orderly civil rights march in Birmingham, Ala, in 1963, was arrested and convicted for violating section 1159 of the city’s General Code, an ordinance which proscribes participating in any parade or procession on city streets or public ways without first obtaining a permit from the City Commission.  Section 1159 permitted the Commission to refuse a parade permit if its members believe “the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.”  The petitioner had previously been given to understand by a member of the Commission that under no circumstances would the petitioner and his group be allowed to demonstrate in Birmingham.  The Alabama Court of Appeals reversed the conviction on the grounds, inter alia, that section 1159, as written, unconstitutionally imposed an “invidious prior restraint” without ascertainable standards for the granting of permits, and that the ordinance had been discriminatorily enforced.  However, the Alabama Supreme Court in 1967 narrowly construed section 1159 as an objective, even-handed traffic regulation which did not allow the Commission unlimited discretion in granting or withholding permits, and upheld petitioner’s conviction.  On appeal, the US Supreme Court held, other thing, that a law subjecting the right of free expression in publicly owned places to the prior restraint of a license, without narrow, objective, and definite standards is unconstitutional, and a person faced with such a law may ignore it and exercise his First Amendment rights.  Picketing and parading might constitute methods of expression entitled to First Amendment protection, and use of the streets for that purpose, though subject to regulation, might not be wholly denied.  Since the terms of section 1159 gave the Commission unbridled authority to issue or withhold parade permits without reference to legitimate regulation of public streets and sidewalks, the ordinance would be, absent a limiting construction, unconstitutional on its face.  Since in this case section 1159 was administered in accordance with its impermissibly broad language, so as to “deny or unwarrantedly abridge” the First Amendment rights of the petitioner and his organization, the petitioner's conviction might not stand.

133.  I do not think any assistance can be derived from Shuttlesworth.  That case concerned the constitutional setting imposed by the US Constitution.  Here, we apply our own constitutional framework and provisions as found in the Basic Law and Bill of Rights. Further, the question before the US Supreme Court concerned the right to hold a parade or possession.  In the present case, we are dealing with displaying publicity materials on Government land (albeit for the purpose of holding static demonstrations), which is subject to the regulatory regime in Part IX of the Ordinance.

134.  Mr Harris’ reliance on the Advertisements Regulations is also misplaced because they are simply not applicable.  So is his reliance on other statutory provisions and the common law offence of public nuisance in regulating the manner of demonstration.  If one chooses to use publicity materials displayed at a particular spot on Government land for the purpose of holding a demonstration there, then he must be subject to the regulatory regime in Part IX of the Ordinance, provided that the regime survives a constitutional scrutiny.  Whether he complies with or contravenes any other statutory provisions or commits the common law offence of public nuisance is neither here nor there.

135.  I next turn to Mr Harris’s attack against the Management Scheme, which can be disposed of shortly.  The constitutionality of the Management Scheme is irrelevant to the 13 locations that the applicants attended for the simple reason that they did not come within the Scheme.  As to the other 13 locations, it is not clear if they fell within the Management Scheme either.  I think before the applicants can be heard on their challenge against the Management Scheme, they ought to have satisfied me by way of evidence that all the 26 Locations did fall within the Management Scheme.  But they have not done so.  Their submissions on the constitutionality of the Management Scheme are therefore academic and should not be entertained.  I just want to mention two particular points Mr Harris made in his attack against the Management Scheme.

136.  First, Mr Harris submitted that imposing the requirements on the contents of the publicity materials under Part 7 of the Management Scheme is tantamount to political vetting, which is deeply objectionable.  But there is not an iota of evidence in support.  In fact, what happens on the ground of which I take judicial notice flatly contradicts Mr Harris’s submission.  The banners and placards displayed by LegCo members coming from different political affiliations, approved under the Management Scheme, very often carry different and sometimes conflicting political slogans or messages.  How can there be any political vetting?  I firmly reject this wholly unmeritorious submission.

137.  Second, the applicants complained that it was the officers of the LD who had asked them to make an application under the Management Scheme.  But the Management Scheme which is the only publicized approval scheme is obviously impracticable and unsuitable for applications relating to FLG demonstrations such as those of the applicants.  This is a most unfair criticism.  The evidence shows that the LD officers were labored under the misunderstanding that the FLG representatives whom they met were representing the FLG Association, when in fact they only represented themselves and some other fellow FLG practitioners.  But the FLG representatives did not make it clear to the officers that they did not represent the FLG Association. In the circumstances, I do not think the officers could be blamed.  In any event, the Director has reserved to himself the discretion under section 104A(1)(b).  The FLG representatives could have made the application to him directly if they wished to do so.  It was wrong for the applicants to assume, as they did, that no general discretion existed in law under section 104A(1)(b) upon which the Director could act on a case-by-case basis.

138.  Finally, to round up their attack on the constitutionality of section 104A(1)(b) and the Management Scheme, the applicants complained that even if they were to apply for permission, whether under section 104A(1)(b) or the Management Scheme, their application might be refused.  This is no more than an unfounded speculation which must be rejected.  It can hardly amount to an excuse for not making the application to the Director under section 104A(1)(b) or to LD under the Management Scheme (if it ever applied).

139.  In my view, section 104A(1)(b) of the Ordinance and the Management Scheme clearly meet the proportionality test.  Seeking a prior permission before displaying publicity materials is rationally connected with all the legitimate aims which I have identified above and it is no more than necessary to accomplish those aims.  I also accept the submission of Mr Mok, SC for the putative respondents and the interested party, that the requirement for permission does not interfere with the applicants and their fellow FLG practitioners from using other means to communicate the same messages contained in the publicity materials intended to be displayed : see HKSAR v Ng Kung Siu & others (1999) 2 HKCFAR 442, per Li CJ at p 456F-G.

140.  Mr Mok further relied on Butler v Derby City Council [2006] 1 WLR 1346, where Sullivan J held at §§36-40 that a requirement for obtaining consent from a local authority for the displaying of advertisements bearing political messages does not amount to an unwarranted interference with the right to freedom of expression protected by Article 10(1) of the European Convention on Human Rights.[16]  I agree with Mr Mok that the same can be said about section 104A(1)(b) and the Management Scheme.[17]

141.  For the above reasons, even if Question 2 arose, my answer would be “yes”.

D4.5  Question 3

142.  I now consider if section 104C(1) of the Ordinance on its own survives the constitutional scrutiny.

143.  The “prescribed by law” requirement is clearly satisfied because the restriction is actually provided for by the enforcement provision itself.

144.  On the “necessity requirement”, I apply the proportionality test.  I have already set out the legitimate aims that the regulatory scheme, of which section 104C(1) is an essential component, serves.  Plainly, there is a rational connection between section 104C(1) and those legitimate aims.  Further, prohibition of displaying publicity materials on Government land without the Director’s permission, backed by enforcement action under section 104C(1), is no more than a necessary step to regulate the use of public places for attaining such aims.  In this regard, I would reiterate that without section 104C(1), the utility of the regulatory scheme as a whole will greatly diminish.

145.  To complete the discussion, I need to dispose of the applicants’ complaints about the Operational Guidelines.  The complaints were made as part of their attack against the constitutionality of section 104A(1)(b).  But I think they have more to do with enforcement.  I therefore deal with them here.  The complaints are two-fold.

146.  Mr Harris first referred to §36 of the Operational Guidelines,[18] under which “walking” bills or posters, that is, those held in the hands or affixed on a board or any kind of materials hung on a person) do not fall within the scope of enforcement operation.  Mr Harris contended that a practice whereby the banner or placard would be confiscated “as soon as it touches the ground” constitutes a grossly disproportionate restriction both on freedom of speech and assembly.  However, Mr Harris’s contention is not borne out by a full reading of §36.  For it goes on to provide that some permanence of the display is needed before enforcement action is to be taken.  This complaint fails.

147.  Mr Harris then referred to §38 of the Operational Guidelines which, as seen, provides that enforcement should not be taken against the display of publicity materials in one-off demonstrations, for fear of inflaming the situation, but should be taken against demonstrations of a regular or recurring nature.  He argued that this limitation is not justified as permissible restriction on the protected rights. It seems that Mr Harris was complaining about the disparity in treatment for one-off demonstrations and demonstrations of a regular or recurring nature.  With respect, I can see nothing wrong in the difference, which is well justified by the reasons given in §38.  In any event, the fact that as a matter of policy no enforcement action is to be taken in one-off demonstrations does not necessarily mean that no enforcement action can be taken in regular or recurring demonstrations or that such enforcement action is not justified.  This complaint also fails.

148.  The answer to Question 3 is “yes”.

D5.   Conclusion

149.  Despite the wholesale attacks, there is no merit in Ground 1.

E. GROUND 2

150.  Mr Harris submitted that the chronology of the events leading up to the removal of the applicant’s banners makes it clear that the impetus for action by the authorities was the complaints which began to occur from the public in 2012, after the anti-FLG organization, HKYC began placing numerous anti-Falun Gong banners in close proximity to the FLG banners, and effectively demonstrating against FLG at those locations.  The FLG banners which had previously been displayed since around 1999 appear to have generated very few public complaints.  However from June 2012 when HKYC become active, complaints increased dramatically with more than 600 in November 2012, and 110 in April 2013.  In enforcing section 104C(1), the Director appeared to treat FLG demonstrations and HKY demonstrations as if there was no meaningful difference between them.  This is a serious and unjust error.  The purpose of the HKYC banners appears to have been to provoke and to create confrontation in relation to Falun Gong practitioners, such as the Applicant, who have been demonstrating peacefully and uncontroversially for many years, should lose the ability to continue their regular peaceful display of banners because of the provocative behaviour of a group opposed to their activities.  Mr Harris argued that the restrictions were not proportionate, as they are based on motivation which did not constitute a legitimate aim, which was to deal with the problem generated by HKYC’s confrontational approach by also taking the same action against HKYC and against the previously inoffensive Falun Gong banners, thereby treating the aggressor and the victim without any distinction.  He relied on Beatty v Gillbanks [1882] 9 QB 308 in support.

151.  Viewed objectively in the round, the evidence before me does not support Mr Harris’s complaint that the enforcement actions or the Decisions were based on the alleged aggressive actions on HKYC’s part.  FEHD took the enforcement actions as they did in response to the complaints against the recent proliferation of unauthorized displays of publicity materials on Government land by FLG and HKYC.  Further, when all the publicity materials at the 26 Locations were displayed without the requisite permission in contravention of section 104A(1)(b), it is entirely legitimate for the Director to take enforcement actions under section 104C(1) against such unlawful displays, regardless of HKYC’s position.

152.  There is no merit in Ground 2.

F. GROUND 3

153.  According to the Operational Guidelines :

“35. If any person being seen of displaying or affixing the bill or poster on a pole and the pole is rested on the ground surface all along, it is actionable under section s104A(1)(b), 104A(2) and 104C of Cap 132.

36. ‘Walking’ bill or poster does not fall within the ambit of section 104A of Cap 132.  One of the elements of the offence is the display or affixing of bills and posters ‘on’ government land. Furthermore, some permanence of the display is needed.  Hence, for [non-commercial publicity materials] being held by hand of persons (or affixed on a board or any kind of materials which are hung on the body of a person), no enforcement action should be taken.”

154.  Mr Harris submitted that §§35 and 36 of the Operation Guidelines discriminate in favour of the strong against the weak (the disabled and women being the weaker), as the strong will be able to hold a banner up without touching the ground for longer.  This discrimination has no rational justification.  It therefore constitutes impermissible indirect discrimination in breach of the Disability Discrimination Ordinance, Sex Discrimination Ordinance and Article 22 of the Bill of Rights.  With respect, this argument is wholly misconceived.

155.  §§35 and 36 of the Operational Guidelines do not draw any distinction between the physical condition or gender of the offender.  They apply across the board, irrespective of the offender’s physical condition or sex.  Further, there is no evidence to show that the enforcement actions under section 104C(1) had been taken against bills and posters displayed or affixed on Government land by the disabled or women but not against bills and posters similarly displayed or affixed by others.  There is no discrimination against the disabled or women as alleged.

156.  There is no merit in Ground 3.

G. GROUND 4

157.  To recap, the applicants’ case of legitimate expectation is based on the allegation that it had been the Government’s established policy of twelve years duration of permitting Mr Hung’s demonstration at the SSP site that he would be permitted to continue with that demonstration in the same form, absent a relevant change of circumstances.  Alternatively, there was at the lowest a duty on the Director to undertake a meaningful and open-minded consultation with the FLG Association, which represents the interests of FLG practitioners such as the applicants, before making such a drastic change to the previous policy.

158.  Central to the applicants’ case on legitimate expectation is a letter issued by Chief Health Inspector Kung Ho Yuen on behalf of the Director dated 20 December 2012 (“the Letter”).  It was written in response to a complaint by a Mr Chow of a community service centre, which stated :

“… our department is responsible for matters related to environmental hygiene, and we would not take action on activities related to expression of opinion including banners displayed in these activities. Nevertheless, we have reminded person‑in‑charge present on spot the Management Scheme and the related legislation. … Our officers will continue to monitor the above situation and will take appropriate actions in accordance with the Management Scheme. …”

159.  It is trite law that, to qualify as a representation capable of giving rise to “legitimate expectation”, the statement must be clear and unambiguous and devoid of relevant qualification : Ng Siu Tung v The Director of Immigration (2002) 5 HKCFAR 1, at §§103-104.  Here, it was expressly stated in the Letter that FEHD would continue to monitor the situation and would take appropriate actions in accordance with the Management Scheme.  Indeed, FEHD did subsequently issue warnings to the FLG Association, and reminded the persons-in-charge on spot of the relevant legislation and the Management Scheme.  As rightly submitted by Mr Mok, the Letter and FEHD’s conduct is far from creating any representation that the Director would not enforce section 104A(1) of the Ordinance against demonstrators’ banners or placards displayed on Government land without his permission.  No legitimate expectation as contended by Mr Harris, whether on his primary or alternative case, could possibly arise.

160.  There is no merit in Ground 4.

H. DISPOSITIONS

161.  For the above reasons, none of the grounds raised by the applicants in their judicial reviews is reasonably arguable.  I refuse to grant leave and dismiss their applications.

162.  Counsel agreed at the hearing that costs should follow the event.  I therefore make an order nisi that the applicants do pay the putative respondents and interested party costs, to be taxed on a party and party basis if not agreed.  The applicants’ own costs are to be taxed in accordance with the legal aid regulations.

[1] They are Chief Estate Surveyor, Senior Land Executive and Principal Survey Officer (Estate).

[2] As part of the investigations referred to in §19 below.

[3] They are listed in the Annex to this judgment.

[4] See River Thames Society v First Secretary of State and Others [2006] All ER (D) 105, 22 September 2006.

[5] There are 13 of such locations in total.  Each of them is marked with an asterisk in the list at the Annex.  Although strictly the present judicial review proceedings do not concern the other 13 locations not attended by the applicants, no issue has been taken if they have the locus to mount the challenge in respect of those locations.

[6] Registered under the Societies Ordinance, Cap 151 since 8 July 1996.

[7] Consisting of Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ; Bokhary PJ dissenting.

[8] See sections 2 and 3 and the Third Schedule of the Ordinance.

[9] See §§101 and 134 below.

[10] See sections 2 and 3 and the Third Schedule of the 1973 version of the Ordinance.

[11] See the speech of the then Secretary for the Environment when he moved the second reading of the Public Health and Urban Services (Amendment) Bill in LegCo on 30 January 1980, Hong Kong Hansard of the same date, at pp 354-355.

[12] Section 104E(1)(a) and (g) had been repealed.

[13] It is because since 2000 no application had ever been received from or made by individuals who were not LegCo or District Council members for permission to display bill or poster on Government land under section 104A.  It was therefore considered that the need to specifically devise another scheme had not arisen yet.  See the affirmation of Ms Olga Lam dated 29 January 2014, at §59.

[14] I leave out sections 104B(1), 104B(2) and 104C(2) for present purposes as they do not feature in these proceedings.

[15] When an application is made to the Director or his delegate for permission, the applicant is of course entitled to a fair consideration.  His application cannot be refused on any ground that would fall foul of the constitutional protections afforded by the Basic Law or the Bill of Rights : see Ocean Technology, supra, per Stock JA at §69.

[16] Which gives similar protections as those under Article 27 of the Basic Law and Article 16 of the Bill of Rights.

[17] In the course of his oral submissions, Mr Mok made reference to Article 7 of the Basic Law.  I do not think the deployment of Article 7 adds anything substantial to the discussion or would in any way affect the outcome. So I will just leave the submission as it is without expressing any view on it.

[18] See §153 below for the full text of §36 of the Operational Guidelines.