MTR CORPORATION LTD v. KWOK WING KIN

HCMA 410/2018

[2020] HKCFI 185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLETE JURISDICTION

Certificate of Application to the Court of Final Appeal for Leave to Appeal

MAGISTRACY APPEAL NO 410 OF 2018

(ON APPEAL FROM FLS 12224 OF 2016)

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REASONS FOR DECISION

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1.  The applicant was charged under sections 21(1) and 43 of the Mass Transit Railway By-laws[1] (“MTR Bylaws”) in that he, while on the railway premises at the MTR Kowloon Tong Station, failed to comply with a reasonable direction and request of an MTR official, namely, to stop using a loudspeaker for broadcasting and to leave the station.  He was found not guilty by a Magistrate[2].  The MTR Corporation Limited (“the respondent”), acting as prosecution in these proceedings, appealed by way of case stated against the decision of the Magistrate.  I allowed the appeal, reversed the decision of the Magistrate and ordered that a verdict of guilty be entered in place of the acquittal of the applicant.  The case was remitted to the Magistrates’ Court for sentence.

2.  Pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance[3] (“the Ordinance”), the applicant by way of a Notice of Motion dated 14 November 2019 asked for the following three questions to be certified as points of law of great and general importance involved in the decision:

“Question 1:

In considering whether a direction that restricts fundamental rights is a reasonable direction under s.21(1) of the MTR by-laws, should the test be the same as the proportionality test?

Question 2:

Whether a zero-tolerance policy towards demonstration adopted and enforced pursuant to s.21(1) of the MTR By-laws is inconsistent with the right to freedom of demonstration, freedom of speech and/or expression (‘the Protected Rights’) guaranteed by Article 27 of the Basic Law, Article 16 and Article 17 of the Bill of Rights, and hence unconstitutional?

Question 3 (as amended on the day of hearing):

In an appeal by way of case stated on the ground that the magistrate failed to consider relevant factual consideration and thus erred in law, where those alleged relevant considerations were not raised at trial nor supported by evidence, to what extent the magistrate’s decision can be found perverse through judicial notice or common knowledge during the case stated?”

3.  According to the written submission of the applicant, the applicant has also on 20 November 2019 filed with the Court of Final Appeal a notice to appeal based on both limbs of the prescribed grounds.[4]

4.  Parties have made detailed submissions, both in writing and orally, which I have taken into account.  Having considered the submissions, I refused to certify any of the three questions and said I would provide reasons in writing.  These are the reasons:

(1) As regards Question 1, it was consensus of parties that in deciding whether a Direction in question is reasonable, as basic rights are engaged, the three tests adopted in deciding constitutional issue are applicable.  The case was indeed decided on this basis.  It was clearly stated in the judgment of the appeal (“the judgment”) that “… the Directions to be reasonable must be for a legitimate aim, rationally connected to the legitimate aim, and no more than reasonably necessary to achieve the aim … .”[5] There was no issue as to the first requirement.  As regards the second requirement, whilst at the appeal there was query from the applicant, I found that the Directions were rationally connected to the legitimate aim.[6]  The most important question to resolve in the appeal was in relation to the proportionality test.  Much of the submission was devoted to this issue.  The appeal was decided by applying the proportionality test on the facts as revealed in the case.  In the circumstances, Question 1 is not a point of law of great and general importance which the Court of Final Appeal has to decide.  The applicant criticised my remark that there can be a spectrum of reasonable directions[7].  In my judgment, this remark is not inconsistent with the application and assessment of the proportionality test.  If the contention is that there has been an erroneous assessment on proportionality, and / or erroneous decision on rational connection, these matters do not fall within this application.

(2) Question 2 concerns the so called “zero tolerance policy”[8]. The issue of whether the policy is unconstitutional was not expressly raised at the appeal.  The “zero tolerance” policy was considered in the judgment, not in the constitutional context, but as part of the proportionality analysis.  It has been expressly stated in the judgment that the court was “not in a position to take a firm view on the policy as it was not the focus of the case”[9]  It was also stated that “… what the witness said he had taken into account in his decision, including the ‘zero tolerance policy’, are only factors to be taken into account. Whether a direction he made was reasonable is to be assessed objectively taking into account the whole of the circumstances as shown by evidence and any relevant circumstances which are commonly known”.[10] Having considered the whole of the circumstances mentioned in the judgment, my conclusion was that “the Directions were no more than necessary in the circumstances to achieve the legitimate aim and a reasonable balance had been struck between the need for the Corporation[11] to discharge its statutory duty (and the related benefit to the society) on the one hand and the restriction on the Protected Rights on the other”[12] and a reasonable balance had been struck[13].  The issue that the “zero tolerance policy” is unconstitutional was not a point of law involved in the decision.

(3) As regards Question 3, I do not consider there is a point of law of great and general importance for the Court of Final Appeal to decide as in my view the answer is case and / or facts specific.  The ultimate question asked in the Case Stated was “did [the Magistrate] correctly hold that the Directions were not proved to be reasonable in acquitting the [applicant] on such basis?”  It was alleged by the appellant that the magistrate failed to consider relevant consideration.  What I have taken into account were, in my judgment, matters which the magistrate should have taken into account in his consideration as to whether the direction is reasonable, in the light of the evidence adduced before him and the circumstances which is within common knowledge.[14]

If after evaluation of proportionality it is found that the finding of the magistrate that the direction is not reasonable is one “which no reasonable magistrate, applying his mind to the proper considerations and giving himself the proper directions could have come to, this would be regarded as an error of law”[15], the appeal should be allowed.

5.  Counsel for the respondent, Mr Ng, pointed out that in making this application the applicant failed to meet the time requirement.  Section 33(1) of the Hong Kong Court of Final Appeal Ordinance provides that “an application … for leave to appeal shall be made within 28 days from the date of the decision of … the Court of First Instance”.  In Tang Siu Man v HKSAR[16],it was held that the 28 days runs from the date the decision of the appeal was made.  It is set out in Practice Direction 2.2 that “applications for a certificate … that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought”.[17] I agree that the applicant failed to meet the time requirement in making this application and no good cause has been advanced to account for the failure, but this is not the reason for refusing to issue the certificate.

6.  The respondent applied for costs in relation to this application.  Ms Wong, for the applicant, indicated that there was no submission in reply to this application.  Having considered the relevant circumstances, I made a cost order that the applicant is to pay the respondent the cost in relation to this application, amount to be taxed if not agreed.