HKSAR v. KOO SZE YIU AND ANOTHER

[English Translation - 英譯本]
HCMA 482/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 482 OF 2013

(ON APPEAL FROM ESCC NO. 918 OF 2013)

--------------------------

--------------------------

--------------------------

JUDGMENT

--------------------------

1.  The two appellants (“D1” and “D2”) were jointly charged with the offence of “attempting to desecrate the regional flag”, contrary to section 7 of the Regional Flag and Regional Emblem Ordinance (No. 117 of 1997) (“Regional Flag Ordinance”) and section 159G of the Crimes Ordinance, Cap 200 of the Laws of Hong Kong. They were convicted as charged after trial before Magistrate Mr Joseph To and were sentenced respectively to 4 months’ imprisonment suspended for 2 years and 230 hours’ community service. D1 and D2 now appeal the convictions and sentences.

Facts

2.  On 1 April 2012, a demonstration and procession with the theme of “protesting against the Central Government for interfering with the election of the Chief Executive, and fighting for the early implementation of democratic universal suffrage” took place outside the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region in the Western District. It can be seen from the video clips from the police, the mass media and the internet, all of which had been produced by way of admitted facts, that D1 and D2, who were in a crowd of people, individually or jointly set fire to a flag of the Hong Kong Special Administrative Region with a lighter or burning newspaper. Police officers at the scene attempted to approach D1 and D2 to stop their act but were obstructed by other demonstrators. Eventually, the police managed to put out the fire by using fire extinguishing sprays. During the incident, part of the burning newspaper landed on the hand/arm of the flag bearer.

The trial

3.  D1 and D2 did not dispute the facts of the case. They neither testified nor called any witness. They asked the Magistrate to declare that section 7 of the Regional Flag Ordinance was inconsistent with articles 27[1] and 39[2] of the Basic Law and article 16[3] of the Hong Kong Bill of Rights.  Some of the arguments advanced by D1 and D2 at trial overlap some of the grounds of the present appeal, and later in this judgment I shall deal with them as necessary. Referring to the Court of Final Appeal judgment in HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, the Magistrate ruled against D1 and D2 on all of their arguments and convicted them of the offence as charged.

The appeal against convictions

4.  Two grounds of appeal have been advanced on behalf of the appellants. To facilitate discussion, I will first deal with ground (2), which contends that the Magistrate erred in holding that section 7 of the Regional Flag Ordinance was not unconstitutional.

Ground of appeal (2) — Part one

5.  The above complaint in fact comprises two aspects. The first aspect, which was not put forward at trial and was relied on for the first time on appeal, relates to the entire article 16 of the Hong Kong Bill of Rights (“Bill of Rights”):

“Article 16

Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

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

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

[cf. ICCPR Art. 19]”

6.  It is submitted on behalf of the appellants that in Ng Kung Siu the Court of Final Appeal focused only on article 16(2) and the restrictions imposed by article 16(3) on article 16(2) and overlooked what article 16(1) seeks to protect, namely, the right to hold opinions without interference. In other words, whatever view a person may hold towards the Regional flag, it is an absolute right conferred on that person by article 16(1) and not to be restricted by article 16(3). The criminalization of the desecrationof the regional flag under section 7 of the Regional Flag Ordinance is (it is submitted) tantamount to undermining or depriving a person of this absolute right by means of regulating with public powers the orthodox symbolic meaning of the regional flag and compelling members of the public to observe that symbolic meaning in what they say and do. Therefore, section 7 of the Regional Flag Ordinance has (it is submitted) contravened both the Bill of Rights and the Basic Law.

7.  The grounds relied on to support this argument are as follows.

8.  In respect of article 19 of ICCPR (the blueprint for article 16 of the Hong Kong Bill of Rights), the Human Rights Committee of the United Nations provided the following explanatory statementin General Comment No 34[4] which was published on 12 September 2011 (“General Comment 34”). It establishes the absolute nature of the right to hold opinions:

“9. Paragraph 1 of Article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction. Freedom of opinion extends to the right to change an opinion whenever and for whatever reason a person so freely chooses. No person may be subject to the impairment of any rights under the Covenant on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. It is incompatible with paragraph 1 to criminalize the holding of an opinion. The harassment, intimidation or stigmatization of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of Article 19, paragraph 1.

10. Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.”

9.  The appellants also rely on the decision of the Supreme Court of the USA in Texas v Johnson 491 US 397 (1989). J, the defendant in that case was a member of a group of demonstrators who assembled outside the venue of a Republican National Convention to protest against the policies of the US President. During that time, someone removed the USA flag from the flag pole; J took it, poured kerosene on it and set it on fire. The demonstrators then shouted “America, the red, white, and blue, we spit on you”. As a result, J was charged with and convicted of desecrating the national flag. After a number of cross-appeals, the matter finally reached the Supreme Court of the United States. The Court held that the law of the state in question was inconsistent with what I refer to as the right to freedom of speech for short, as guaranteed by the First Amendment to the US Constitution[5], the reason being that this law was directed at the content of the message behind the burning of the flag and not merely at the mode by which the message was expressed, and furthermore, the nation was not entitled to foist its view of the flag on its subjects through the penal code:

“[T]he state’s asserted interest in preserving the flag as a symbol of nationhood and national unity does not justify the conviction since (a) the attempted restriction on expression is content-based … and (b) although the state has a legitimate interest in encouraging proper treatment of the flag, it may not foster its own view of the flag by prohibiting expressive conduct relating to it and by criminally punishing a person for burning the flag as a means of political protest.”[6]

10.  The nation was not so entitled because the crux of the First Amendment was the protection of diversity:

“Recognizing that the right to differ is the centerpiece of our First Amendment freedoms … a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.”[7]

11.  Dissatisfied with the judgment in Texas v Johnson,the Congress passed a Federal law protecting the national flag, but in a subsequent case Supreme Court of the United States held, for the same reasons, that the Federal law was unconstitutional: United States v Eichman 496 US 310 (1990).

12.  The appellants further point out that, ten years ago, having considered the above two US cases and the judgment in Ng Kung Siu,the High Court of New Zealand ruled that the Flags Act of New Zealand was inconsistent with the freedom of speech: Hopkinson v Police [2004] 3 NZLR 704.

Discussion

13.  As far as the interpretation of the Hong Kong Bill of Rights is concerned, there is no doubt that the General Comments issued by the UN Human Rights Committee provide assistance which is most direct and which carries considerable weight. This has been confirmed by decided cases[8]. Nevertheless, the passage in General Comment 34 quoted above is obviously directed at the criminalization of the holding of an opinion. For example, it would certainly be contrary to article 19.1 of ICCPR to provide that it was unlawful for a person to hold/not to hold a religious belief. On the other hand, the Comment does not point out what necessary relationship there is between article 19.1 (the right to hold opinions without interference) and article 19.2 (the right to freedom of expression) of ICCPR. Nor does it state that a restriction on the latter would jeopardize the former. Therefore, this Comment does not assist the appellants.

14.  As far as American jurisprudence is concerned, I notice that, unlike ICCPR, the First Amendment draws no distinction between the right to hold opinions and the right to freedom of expression[9]. However, it appears that the Supreme Court of the United States did not equate the two. The fact that the act of burning the flag and the position expressed through the burning of the flag have been viewed in the same light in the case law does not mean that the freedom of expression and the right to hold opinions are to be regarded as one and the same. The relevant law was considered unconstitutional because it authorized the State to provide for its own definition of the so-called orthodox concept and to punish those of its subjects who by conduct expressed different views on the national flag. The relevant law was considered unconstitutional not because it required its subjects to feel deep veneration for the flag in all circumstances. The former touched only on the freedom of expression, while it is the latter that touched on the right to hold opinions.

15.  I also notice some issues regarding statutory interpretation. In Texas v Johnson,the relevant state law defined “desecration” as any physical mistreatment which the actor knew would seriously offend those who observed or discovered the act:

“[The] state statute … defined desecration as the physical mistreatment of such objects in a way which the actor knows will seriously offend one or more persons likely to observe or discover the act.”[10]

In other words, this law did not seek to protect the physical integrity of the national flag in all circumstances; what the law did was protect the national flag from impairments which would cause serious offence to others. This was also the reason why the law in question was regarded as content-based (what was the proper attitude that people should have towards the national flag?):

“[T]he state’s asserted interest in preserving the flag … does not justify the conviction since (a) the attempted restriction on expression is content-based, and thus subject to the most exacting scrutiny, given that the flag-desecration statute is aimed not at protecting the physical integrity of the flag in all circumstances, but only against impairments that would cause serious offense to others, and is aimed at protecting onlookers from being offended by the ideas expressed by the prohibited activity ...”[11]

16.  This is distinguishable from section 7 of the Regional Flag Ordinance, which provides as follows:

“A person who desecrates the regional flag or regional emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable -

(a) on conviction on indictment to a fine at level 5 and to imprisonment for 3 years; and

(b) on summary conviction to a fine at level 3 and to imprisonment for 1 year.”

17.  According to the analysis made by Li CJ in Ng Kung Siu,the word “desecrate” does not bear any specific or one-way meaning. On a literal interpretation, even the act of putting words of praise on the national/Regional flag would be an offence for it would constitute “scrawling on” the flag.  Therefore, be it section 7 of the National Flag Ordinance (for short) or section 7 of the Regional Flag Ordinance, its purpose is simply to preserve the dignity of the national/regional flag against desecration in the broad sense of the word:

“… it may well be that scrawling words of praise on the flags (as opposed to words of protest which is usually the message sought to be conveyed) would constitute offences within s.7 of both Ordinances, namely that of desecrating the flag by scrawling on the same. If this be right, then it would mean that the prohibition not only bans expression by this mode of a message of protest, but also other messages including a message of praise. But a lawseeking to protect the dignity of the flag in question as a symbol, in order to be effective, must protect it against desecration generally.”[12]

18.  Consistent with this, Bokhary PJ expressed the following views in his judgment:

“… I am of the view that it is possible – even if by no means easy – for a society to protect its flags and emblems while at the same time maintaining its freedom of expression.

This is possible if its flag and emblem protection laws are specific, do not affect the substance of expression, and touch upon the mode of expression only to the extent of keeping flags and emblems impartially beyond politics and strife. In my view, our laws protecting the national and regional flags and emblems from public and willful desecration meet such criteria.”[13]

19.  As to the origin of the dignity of the national/regional flag, Li CJ explained that the flag commands respect as it is the symbol of the Nation or the Special Administrative Region, and it is beyond dispute that both the Nation and the Special Administrative Region have a legitimate interest in protecting these symbols:

“The society in the People’s Republic of China, the country as a whole, including the Hong Kong Special Administrative Region, has a legitimate interest in protecting their national flag, the unique symbol of the Nation. Similarly, the community in the Hong Kong Special Administrative Region has a legitimate interest in protecting the regional flag, the unique symbol of the Region as an inalienable part of the People’s Republic of China under the principle of ‘one country, two systems’. The existence of these legitimate interests has not been challenged in argument before us.”[14]

As a matter of fact, even the Supreme Court of the United States recognized such legitimate interests; it was only that a certain legal provision which purported to defend these interests had, in the Supreme Court’s view, overstepped the line and was therefore unconstitutional.

20.  I have thus far outlined the reasons for distinguishing between Texas v Johnsonand Ng Kung Siu. I have not overlooked the problem that US v Eichman may give rise to. As pointed out above, the relevant Federal Act was designed to circumvent Texas v Johnson and therefore, taking an approach similar to that of section 7 of the National Flag Ordinance and the Regional Flag Ordinance, did not expressly provide that the prohibited act had to offend anyone. Still, the Act was held by the Supreme Court of the United States to be unconstitutional.

21.  However, the summary of the judgment of that case[15] indicates that the above decision on unconstitutionality was based on the interpretation of the relevant Act by the Supreme Court. The Supreme Court was of the view that, even with the removal of the requirement that the conduct in question would cause offence to anyone, the Act was in substance still directed at the content of the message rather than the mode of expressing it. Simply put, the Act sought to prohibit any act done to the national flag which might express unpatriotic sentiments:

“the Act, like the state statute in Texas v Johnson, improperly suppressed expression out of concern for its likely communicative impact, even though the Act contained no explicit content-based limitation on the scope of prohibited conduct, since (a) the Federal Government’s stated desire to preserve the flag as a symbol of national ideals is implicated only when a person’s treatment of the flag communicates a message that is inconsistent with those ideals, and (b) the statutory term describing the proscribed conduct … connoted disrespectful treatment of the flag and suggested a focus on acts likely to endanger the flag’s symbolic value, whereas the disposal exemption [pertaining to worn or soiled flags] protected acts traditionally associated with patriotic respect …”

22.  For this reason, the decision in US v Eichmandoes not have much referential value in Hong Kong. On the other hand, I am bound by the view expressed by the Court of Final Appeal that section 7 of the National Flag Ordinance and section 7 of the Regional Flag Ordinance do not bear any specific or one-way meaning but only seek to prohibit a certain mode of expression:

“The prohibition of desecration of the national and regional flags by the statutory provisions in question is not a wide restriction of the freedom of expression. It is a limited one. It bans one mode of expressing whatever the message the person concerned may wish to express, that is the mode of desecrating the flags. It does not interfere with the person’s freedom to express the same message by other modes.”[16]

23.  Finally, in Hopkinson v Police,a New Zealand case which should be described as neutral, the presiding High Court Judge France J considered the Hong Kong case of Ng Kung Siu and the aforementioned two US cases and concluded by pointing out that on this subject-matter there obviously was room for divergent views and that even the judgment in Texas v Johnsonwas only a majority judgment[17]:

“… it is obvious that there is room for differing views. The United States Supreme Court, for example, was divided on the issue and the dissenting judgments in Texas v Johnson and the Hong Kong decision show the arguments for the view that prohibition of such conduct is a justified limit.”[18]

No doubt, as far as the issue of flag desecration is concerned, subject to the principle that human rights shall be protected, individual jurisdictions can only be left to make their own judgments. [19]

24.  In summary, I do not think the appellants’ complaint is made out.  General Comment 34 deals only with the criminalization of the holding of opinions, and the US Supreme Court cases have nothing to do with the right to hold opinions without interference. As they involve a different interpretation of the legal provisions, the US cases are of limited assistance in the analysis of the issue before me.

Ground of appeal (2) — Part two

25.  I now turn to the defence which D1 and D2 raised at trial. It was not accepted by the Magistrate and is now raised again. The defence is that that there is sufficient room in the judgment of Ng Kung Siu to allow the lower courts of today(that is, 15 years later) not to follow the decision of that case. It is further argued that that decision is open to question as there have been more thorough discussions on the laws relating to legitimate restrictions on human rights since the time of that decision.

26.  The specific submissions made on behalf of the appellants are set out below.

27.  Li CJ pointed out in the aforesaid judgment that with the reunification of Hong Kong with the PRC, and under the principle of “one country, two systems”, Hong Kong had become a Special Administrative Region and an inalienable part of the PRC, and accordingly, the legitimate interests in protecting the national and regional flags were within the concept of public order (ordre public):

“As to the time, place and circumstances with which we are concerned, Hong Kong has a new constitutional order. On 1 July 1997, the People’s Republic of China resumed the exercise of sovereignty over Hong Kong being an inalienable part of the People’s Republic of China and established the Hong Kong Special Administrative Region under the principle of ‘one country, two systems’. The resumption of the exercise of sovereignty is recited in the Preamble of the Basic Law, as ‘fulfilling the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong’. In these circumstances, the legitimate societal interests in protecting the national flag and the legitimate community interests in the protection of the regional flag are interests which are within the concept of public order (ordre public).”[20]

28.  As to why Li CJ had to mention time, place and circumstances, one has to read the passage immediately preceding the above extract. There, having referred to the relevant authorities, including “Permissible Limitations on Rights”[21]by Professor Kiss, Li CJ accepted that public order was an imprecise concept which varied with time, place and circumstances:

“The following points can be drawn from the materials referred to above. First, the concept is an imprecise and elusive one. Its boundaries cannot be precisely defined. Secondly, the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole. Examples include: prescription for peace and good order; safety; public health; aesthetic and moral considerations and economic order (consumer protection, etc). Thirdly, the concept must remain a function of time, place and circumstances.” [22]

29.  Therefore, in his article “Basic Law and Constitutional Review: The First Decade”, Professor Johannes Chan Man-mun, SC (Hons)  pointed outthat the above view might suggest that the offence of desecrating the national/regional flag was only justified in the early stage of the establishment of the Special Administrative Region and might not be justifiable long after its establishment:

“This is a rather odd formulation, as it suggests that while the offence of desecration of national [and regional] flag[s] may be justified at the early days of the establishment of the HKSAR, it may not be justifiable long after the HKSAR has been established.”[23]

30.  On that basis, the appellants further submit that since Ng Kung Siu, Hong Kong has undergone significant changes in various aspects — the rule of law is under threat, senior government officials are corrupt, public confidence in such matters as the implementation of “one country, two systems”, high autonomy, democratization of the political system and protection of human rights has suffered a considerable setback. As a result of these regressions, the regional flag has lost much of its symbolic meaning in the eyes of Hong Kong people, and the importance of the government’s legitimate interests in protecting the regional flag has gradually diminished (if not completely gone). Such public order, which has changed with time and circumstances, should no longer be regarded as capable of supporting the argument that section 7 of the Regional Flag Ordinance is not unconstitutional.

31.  The appellants also submit that in a subsequent case Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, the Court of Final Appeal clearly set out the essential conditions to be satisfied before a right could be lawfully restricted[24]. Subsequent thereto, the UK House of Lords made some additional observations in this respect: Huang v Secretary of State for the Home Department [2007] 2 AC 167[25]. The appellants submit that Professor Kiss[26] and Professor Nowak[27] have expressed mutually consistent views, namely that public order must operate in a legal framework which has incorporated fundamental human rights; further, the concept of public order per se requires respect for human rights in the exercise of public powers.

32.  The appellants further submit that General Comment 34 referred to above has laid down stringent requirements on the restrictions permitted by article 19.3 of ICCPR, i.e. article 16(3) of the Bill of Rights. The same document also points out that it was the court’s duty to evaluate public order and that the court should not attach any weight to the views of the legislature. It is submitted that the above matters cast doubt on the correctness of the decision in Ng Kung Siu,and that the court should give a remedial interpretation to section 7 of the Flag Ordinance by reading into it a lawful excuse for desecrating the regional flag, namely “promotion of multi-party democracy and human rights”, so that the section does not contravene the Basic Law and the Bill of Rights.

Discussion

33.  The decision in Ng Kung Siu is directly relevant to articles 16(2) and 16(3) of the Bill of Rights. I accept with respect and am bound by the reasons for judgment of the Court of Final Appeal in that case. Therefore, I find neither necessity nor room for a detailed consideration of this part of the appellants’ submissions.

34.  It only remains for me to mention that, in the context of the relevant issue, the so-called time, place and circumstances in relation to public order should refer to the new constitutional order that governs Hong Kong and not anything else. This can clearly be seen from the passage, quoted in paragraph 27 above, from the judgment given by Li CJ. In that part of the judgment, Li CJ made no reference to non-constitutional matters such as the prevalent feelings and patriotic sentiments of the Hong Kong residents. He only mentioned that the PRC resumed the exercise of sovereignty over Hong Kong and established the Hong Kong Special Administrative Region under the principle of “one country, two systems”, and that Hong Kong was an inalienable part of the PRC. Of course, he also pointed out that according to the Preamble of the Basic Law, the resumption of the exercise of sovereignty was the common historical aspiration of the Chinese people, not just Hong Kong residents. As long as the Basic Law continues to take effect, I cannot see how public order, so defined, can be affected by possible changes in social circumstances.

35.  This position can be said to have been affirmed in a more recent Court of Final Appeal case of Democratic Republic of the Congo & Others v FG Hemisphere Associates LLC (2011) 14 HKCFAR 95:

“319. The desire for national reunification and territorial integrity is an important theme underlying China’s recovery of Hong Kong. This was recognized by this Court in the case concerning desecration of the national flag.”

Ground of appeal (1)

36.  This ground complains that the Magistrate erred in adding his personal views to his decision. In other words, he foisted his own views of the orthodox symbolic meaning of the regional flag on members of the public.

Discussion

37.  The Magistrate’s remarks which form the subject of the appellants’ criticism are set out in paragraphs 50 to 59 of his Statement of Findings:

“50. It is the view of the court that, apart from domestic law and order, ordre publicalso covers considerations of satisfying collective needs, foreign or external conduct and public well-being. Therefore, the court must further consider the internal and external meaning of the regional flag following the handover of Hong Kong.

51. Over the past 16 years, under the regional flag, athletes of the Special Administrative Region have participated in international sporting events and achieved remarkable successes. Also under the regional flag, political and economic officials of the Special Administrative Region have attended international conferences, striving to promote the well-being of the people of the Region.

52. Furthermore, the efforts made jointly and collectively by people of the Special Administrative Region during the past 16 years for the sake of public well-being are recognized and endorsed by the international community. There is no denying that the Special Administrative Region is a major international financial hub. The Financial Development Report of the World Economic Forum in both 2011 and 2012 ranked the Special Administrative Region the world’s first. The Region was rankedthird in the global competitiveness index in 2013. More importantly, the Region was ranked No.13 among the 186 countries/territories around the world in theHuman Development Index published by the United Nations in 2013, with Singapore ranked No.18 and the UK No.26. The Region was ranked No.24 in the same Index in 2007.

53. The court is of the view that, over the past 16 years, the regional flag has acquired obvious significance externally. It symbolizes the efforts and contributions that countless Hong Kong people have made towards the well-being of the public.

54. Internally, over the past 16 years the number of processions and assemblies had risen exponentially from 1,190 in 1997 to 7,529 last year, many of which involved political issues.

55. One cannot ignore the presence of different or even rival camps in processions and assemblies. Desecrating the regional flag is not necessarily agreeable to all those who take part in processions and assemblies.

56. The court is of the view that, in the absence of legislation to protect the regional flag, the act of desecrating the flag may result in conflicts in breach of peace. The criminalization of the desecration of the flag, so that such cases will be dealt with by the police and the court, can effectively reduce the risk of such conflicts.

57. The defence recognizes that when public officers of the Special Administrative Region died in the course of performing their duties, their coffins would be draped with the regional flag. Recently, a senior fireman and a young team member sacrificed their lives to save others. The regional flags were draped over their coffins, symbolizing the respect all Hong Kong people had for them and conveying the message that there were brave souls under the flags.

58. The court is of the view that the regional flag has over the past 16 years acquired a strong symbolic meaning representing the spirit of the people.

59. The court finds that the abovementioned changes in time and internal and external circumstances lend further support to the constitutionality of the legislation which protects the regional flag.”

38.  In this judgment, I do not propose to comment on the validity or otherwise of the Magistrate’s observations, just as I will not comment on the appellants’ views of the current social or political situation. There is indeed no need to do so, being an exercise in which different people will come up with different conclusions. As I have pointed out in paragraph 34 above, as far as public order is concerned, the only consideration relevant to the protection of the regional flag is the fact that, in contrast to the past, Hong Kong is now governed by a new constitutional order which will be sustained by virtue of the Basic Law. Therefore, although the Magistrate had indeed taken too much into consideration, it was not such as to affect the decision in the present case.

The appeal against sentences

Reasons for sentence

39.  Based on the analyses given by Li CJ and Bokhary PJ of the National Flag Ordinance and the Regional Flag Ordinance (see the passages quoted in paragraphs 17 and 18 above), the Magistrate was of the view that the legislative intent of the Ordinances was to protect the neutrality of the flags so that they would not be embroiled in politics, so as to fully and effectively protect the dignity of the national/regional flag.[28] For this reason, he rejected the plea for mitigation put forward by the two appellants on the ground of civil disobedience (a political means).

40.  The Magistrate considered that there were three aggravating factors in the present case: (1) at the time of the incident, D1 and D2 were surrounded by a number of demonstrators, thereby obstructing the police in the execution of their duties; (2) as a result of the aforesaid conduct, there was at one stage pushing and shoving between the parties, and fortunately no one was injured as a result; (3) sparks had actually landed on the hand/arm of a third party in the course of the incident, and the risk of someone getting burnt was no longer theoretical.

41.  In the result, the Magistrate delivered the following judgment on sentence:

“The first defendant

81. The first defendant is now 67 years of age. His wife and 14-year-old son are residing on the Mainland.

82. The defendant has been residing in a unit in a commercial building for the last 10 years. The unit is mainly used for storing items to be used in demonstrations. The defendant is only required to pay electricity charges of approximately $200 each month and is not required to pay any rent.

83. The defendant gave up his job of a vessel technician in 1989 and since then has actively taken part in social movements. He says he works as a decoration worker intermittently, earning $5,000 to $10,000 per month.

84. At the time of the offence, the first defendant had 7 conviction records (the 8^th conviction against him does not fall to be considered for present purposes) in respect of a total of 13 offences, including offences similar to the present one.

85. The courts had previously given the defendant chances by imposing a fine for his act of desecrating the flag. However, he has records of breaching orders for binding over to be of good behaviour and orders for suspended sentences.

86. In light of the facts of the case, in particular the aggravating factors and the background of the first defendant, the court is of the view that the appropriate sentence should be imprisonment for approximately 6 months.

87. Having committed the offence being subject of the present case, the first defendant committed similar offences on 10 June 2012 and 1 January 2013 (See HKSAR v Koo Sze Yiu HCMA 185/2013). In that case, the first defendant was sentenced on 7 February 2013 to imprisonment pending appeal, and the appeal procedure came to a conclusion on 13 May 2013.

88. The present offence was committed on 1 April 2012. The prosecution preferred the charge against him in March of this year (i.e. after the first defendant had been sentenced to imprisonment). It can be deduced from the defendant’s criminal record that when he attended court in respect of the present case on 3 June, it was shortly after he completed serving his prison sentence.

89. In view of the above, the court cannot rule out the possibility that, had the offences on 1 April 2012, 10 June 2012 and 1 January 2013 been dealt with together, part of the sentence for the present offence might, having regard to the totality principle, have been ordered to run concurrently with those for the 10 June 2012 and 1 January 2013 offences.

90. The court appreciates that in the present case the prosecution had met with considerable difficulty dealing with the video clips obtained from the internet. That said, the fact that the three cases against the first defendant were not dealt with together was in no way caused by any fault on his part.

91. This being the case, the court can consider disposing of the case by way of suspended sentence (see HKSAR v Chiu Peng, Richard [2002] 1 HKC 401).

92. On the above analysis, and in view of the fact that the first defendant has already been detained for two weeks, the court is of the view that the appropriate sentence is 4 months’ imprisonment, suspended for two years.

The second defendant

93. The second defendant is now 19 years old. He worked at a convenience store for six months in 2011 after completing Form 5 education. From April 2012 on, he worked as an assistant in a political organization, earning a monthly salary of $9,500.

94. As at the time of the offence, the second defendant had no criminal record, although he was fined $2,000 in September 2012 for one count of unlawful assembly.

95. All aggravating factors referred to above also apply to the second defendant.

96. The court takes the view that the age of 19 is not so young as to justify treating the second defendant as a person of a tender age of 15 or below.

97. Unlike the first defendant, no special circumstances exist in relation to the second defendant.

98. On the basis of the information before me, this court will dispose of the case against the second defendant by way of a community service order.

Conclusion

99. The first defendant is sentenced to 4 months’ imprisonment, to be suspended for two years.

100. Taking into account the time already spent by the second defendant in custody, the second defendant is ordered to complete 230 hours of community service.”

Discussion

42.  With respect, the Magistrate had in my view misunderstood the Court of Final Appeal judgment. By their remarks, Li CJ and Bokhary PJ intended to point out that the provisions of the National Flag Ordinance and the Regional Flag Ordinance were neutral and imposed a narrow restriction which affected only the mode of expressing a message and not the content of the message and were therefore not unconstitutional. This decision has nothing to do with sentencing considerations. Nor does it provide a reason for rejecting civil disobedience as a mitigating factor.

43.  The UK House of Lords case of R v Jones (Margaret) & Others [2007] 1 AC 136, which is cited by the appellants, sets out the history and value of civil disobedience in the UK.   Lord Hoffmann had this to say:

“89. My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind.”

Nonetheless, the above passage is only a small part of Lord Hoffmann’s judgment. In the rest of the judgment, he rather severely criticized the defendants for turning a court of law into their political platform by breaking the law.  In fact, Lord Hoffmann pointed out that the so-called “civil disobedience” possesses certain characteristics, for example, the actions are restrained without causing excessive damage or inconvenience, and the protesters demonstrate the sincerity of their beliefs by not putting up a defence in court:

“But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.”

44.  This shows that those who have broken the law in pursuit of their beliefs are not necessarily to be given lenient sentences. It all depends on the circumstances of each case.  If the facts of the case and the consequences of the offence are not serious, the defendant should naturally be given clemency; otherwise no leniency should be given. However, this is in fact no different from the ordinary sentencing principles — the defendant’s motive, modus operandi, consequences, and impact on the society are all factors to be considered. Therefore, in my view, little purpose will be served by treating civil disobedience as a distinct mitigating factor. This is my conclusion on this subject.

45.  As to the gravity of the circumstances of the present case, I make the following observations: (1) The video clips show that no accelerant such as kerosene had been poured on either the newspaper that was used as fire starter or the regional flag that was burnt; otherwise, the fire would have flared up at once. (2) There is no evidence that anyone had actually been injured. (3) There is no evidence that the demonstrators who obstructed the police were not acting spontaneously but in concert with D1 and D2.  Of course, it is absolutely dangerous to (try to) set fire to something in a crowded place; worse still if this causes the crowds to kick up a commotion, thereby bringing about other dangers. The point is, for the purpose of accurately determining the gravity of the present case, the abovementioned three features cannot be overlooked.

46.  The final matter for discussion is the sentence for each of the two appellants. As the Magistrate pointed out, prior to the present case D1 had a previous record of 7 convictions in respect of 13 offences, all of which, in my understanding, arose from protests, demonstrations and processions. One of these convictions was for the same offence as that in the present case. It took place in 2002 and the case was disposed of simply by way of a fine. In other words, it was after 10 years that D1 again committed the present offence of desecrating the regional flag, and his previous breaches of bind-over orders and suspended sentences had nothing to do with flag desecration. This being the case, coupled with my view that the facts of the case are not as serious as the Magistrate described it, the sentence of 4 months’ imprisonment (the Magistrate even adopted 6 months as the starting point) is manifestly excessive and should be varied to 2 months. Furthermore, but for the time needed to collect evidence, the present case could have been heard together with the subsequent flag-burning case (see paragraphs 87 to 91 of the Magistrate’s Statement of Findings). Therefore, the sentence should not be suspended for as long as 2 years; the period of suspension can be halved, i.e. reduced to one year.

47.  D2 was aged only 19 at the time of the offence and had a clear record. Before passing sentence, the Magistrate remanded him in custody pending a series of suitability reports including training centre, detention centre, rehabilitation centre, community service and probation reports. He was only released on the following day upon being granted bail by the High Court on an urgent basis. Furthermore, the 230-hour community service is only 10 hours short of the statutory maximum and almost triple the low number of hours (80 hours at most) originally recommended by the probation officer. This is absolutely excessive and wholly disproportionate to the appellant’s background, the nature of the offence and the facts of the case. To bring the matter to an end, the best approach now is to vary the length of community service order to 110 hours, which is the number of hours D2 has already served.

Decision

48.  The appellants’ appeals against convictions are dismissed. Their appeals against sentences are allowed. The sentence for D1 is varied to 2 months’ imprisonment, suspended for one year. The sentence for D2 is varied to 110 hours of community service.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor

[1] Freedom of speech.

[2] The provisions of The International Covenant on Civil and Political Rights (“ICCPR”) as applied to Hong Kong shall remain in force.

[3] The right to hold opinions without interference and the right to freedom of expression.

[4] UN Human Rights Committee, “General Comment No 34, Article 19, Freedoms of Opinion and Expression”, 12 September 2011, CCPR/C/GC/34.

[5] The original text of The First Amendment is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

[6] 491 US 397, end of the Summary.

[7] 491 US 401, the Supreme Court confirmed the observation of the state appellate court.

[8] The Queen v Sin Yau Ming [1992] 1 HKCLR 127; Fok Lai Ying v Governor in Council & Others [1997] HKLRD 810.

[9] See footnote 5.

[10] 491 US 397, Summary.

[11] See footnote 6.  This is a complete version of the first half of the same passage.

[12] (1999) 2 HKCFAR 442 at 456G-H.

[13] Ibid, at 468A-C.

[14] Ibid, at 447E-G.

[15] Summary, 496 US 310.

[16] Ibid, at 456F-G. It should be noted that the Court of Final Appeal was not unaware of the two US cases mentioned above. They were mentioned by Bokhary PJ in his judgment.

[17] A 5:4 majority. The four US Supreme Court Judges (including the Chief Justice) who did not consider the relevant law unconstitutional pointed out that the law only restricted J’s mode of expression, which was one of many modes of expression. The reasoning is extremely similar to that given by the Court of Final Appeal in Ng Kung Siu. Furthermore, as a matter of fact, the judgment in US v Eichman was also only a 5:4 majority judgment.

[18] [2004] 3 NZLR 704 at 716, paragraph 73 of the judgment.

[19] The New Zealand High Court pointed out, as did the Court of Final Appeal in Ng Kung Siu, that quite a number of democratic countries have laws in place to protect the national flag from being desecrated.

[20] Ibid, at 460B-D.

[21] See Henkin (ed), The International Bill of Rights 1981, p.301.

[22] Ibid, at 459I to 460A.

[23] (2007) 37 HKLJ 407, bottom of page 429.

[24] Paragraph 36 of the judgment.

[25] Paragraph 19 of the judgment.

[26] See paragraph 27 above.

[27] Author of the UN Covenant on Civil and Political Rights: CCPR Commentary.

[28] This is my understanding of paragraphs 74 to 76 of the Magistrate’s Statement of Findings.