HUNG SHUI FUNG v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

FAMV Nos. 42 and 43 of 2016
and FAMV Nos. 213 and 214 of 2020

[2021] HKCFA 16

FAMV No. 42 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2016 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 219 OF 2014)

___________________________

FAMV No. 43 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2016 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 220 OF 2014)

___________________________

___________________________

(HEARD TOGETHER)

FAMV No. 213 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 213 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 489 OF 2018)

___________________________

FAMV No. 214 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 214 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 490 OF 2018)

___________________________

_______________________________

REASONS FOR DETERMINATION

_______________________________

Mr Justice Fok PJ:

1.  We dismissed these applications for leave to appeal at the conclusion of the hearing, indicating that we would hand down our reasons for doing so at a later date, which we now do.

Procedural history

2.  The first two leave applications (in FAMV 42 & 43/2016) were heard by the Appeal Committee in February 2017 and adjourned.  At that time, the Court of Appeal had reversed J. Poon J’s judgment refusing leave to apply for judicial review and had granted leave to the applicants, on different grounds, to challenge the constitutionality of the statutory scheme for regulating the display of bills and posters on Government land under the Public Health and Municipal Services Ordinance (Cap.132) (“the PHMSO”).[1] We adjourned the leave applications then as being premature, since closely related issues concerning the scheme were to be raised in the judicial review that would be heard and we considered that the proportionality analysis should not be undertaken piecemeal at separate stages.

3.  In the substantive judicial review proceedings that were then heard, G. Lam J granted the applicants, who are adherents of the Falun Gong movement, an order of certiorari to quash the Director of Food and Environmental Hygiene’s decision to remove their bills and posters from various locations, which the applicants call “truth clarification sites”, where they were displayed in static demonstrations by Falun Gong practitioners.[2] The judge did so on the basis that the restriction in s.104A(1)(b) of the PHMSO failed to meet the “prescribed by law” requirement.  Having so decided, he did not consider it necessary to deal with the proportionality argument advanced by the applicants.

4.  On appeal from that judgment, the Court of Appeal reversed the judge and held that the relevant restriction did meet the prescribed by law requirement and dismissed the applicants’ Respondents’ Notices seeking to uphold the judge’s order on the ground that s.104A(1)(b) of the PHMSO was not proportionate.[3]

5.  Having failed to obtain leave to appeal to the Court of Final Appeal from the Court of Appeal,[4] the applicants renewed their original leave applications and issued fresh leave applications.  Before us, they sought leave to appeal in respect of the questions of law originally raised in their notices of application in FAMV 42 & 43/2016 and also on further questions of law in their new notices of application in FAMV 213 & 214/2020.

The questions of law for which leave to appeal was sought

6.  The original questions in the first leave applications (FAMV 42 & 43/2016) were:

(1) The Construction Question:

“Whether it is reasonably arguable that on its true construction the requirement in Section 104A of the Public Health and Municipal Services Ordinance (Cap. 132) for prior approval for display of bills and posters on government land is not applicable to demonstrators’ banners?”

(2) The Proportionality Question:

“Whether it is reasonably arguable that the application to demonstrators’ banners of the requirement in Section 104A of the Public Health and Municipal Services Ordinance (Cap. 132) for prior approval for display of bills and posters on government land is inconsistent with Basic Law Article 27 and Bill of Rights Articles 16 and 17 (‘the protected rights’), in that it fails the proportionality test on the ground that a requirement for prior approval of display of demonstrators’ banners is a disproportionate interference with those protected rights?”

7.  The new questions in the renewed applications for leave to appeal (FAMV 213 & 214/2020) were:

Question 1 (Q1):

“Whether Section 104A of the PHMSO only applies to displays which involve a degree of permanence and habitual regularity?”

Question 2 (Q2):

“What is a demonstration for the purpose of Article 27 of the Basic Law?”

Question 3 (Q3):

“On the assumption that section 104A(1)(b) of the PHMSO is applicable to banners displayed during a demonstration, whether Section 104A so construed is inconsistent with the Protected Rights, and is therefore unconstitutional?”

8.  The applicants clarified in their skeleton submissions for these leave applications that they wished to substitute the new Q3 for the original Proportionality Question. There were therefore four questions for which they sought leave to appeal, namely the original Construction Question and the three new questions Q1, Q2 and Q3.

9.  Distilled to their essence, the crux of the issues before the courts below were:

(1) The Construction Issue, viz. whether the scheme in Part IX of the PHMSO applies to the Falun Gong banners displayed at their static demonstrations; and

(2) The Proportionality Issue, viz. whether s.104A(1)(b) unlawfully restricts the applicants’ protected rights, namely their freedoms of speech, of assembly and of demonstration (under Article 27 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights)?

The Construction Issue

10.  Before G. Lam J, the applicants raised the question of the scope of s.104A(1)(b) as a matter of construction.[5] His Lordship noted that, in the CA 1^st judgment, the Court of Appeal held (at [39]-[47]) that s.104A(1)(b) only applied to banners displayed “with a degree of permanence and habitual regularity”.  Accordingly, regardless of whether the banner was displayed as part of a demonstration, permission for the display of such a banner would be required under the statutory scheme.  G. Lam J did not entertain the applicants’ submission because it was not open to them in the CFI (see [51]) but recorded that they “reserved their right to contend in a higher court, that s.104A, on its proper construction, does not apply to demonstrators’ banners save for unattended banners” (see [43]).

11.  Even if not open to the applicants in the Court of Appeal, the construction issue was reserved by them as a point they wished to pursue in the Court of Final Appeal (by way of the Construction Question).  As the Appeal Committee observed in FAMV 42 & 43/2016, that question was “of considerable public importance”,[6] since one can only decide the Proportionality Issue in relation to s.104A(1)(b) when one has decided that, as a matter of construction, the scheme applies to the applicants’ banners.  If not, there is no requirement for permission to display the banners, or a basis to remove them, and so no infringement of any protected right requiring a proportionality exercise to be undertaken to determine its lawfulness.  Notwithstanding its importance, however, the applicants nevertheless had to persuade us that their construction of s.104A(1)(b) is reasonably arguable in order to justify the grant of leave.

12.  As to that, it is important to focus on the real issue between the parties regarding the scope of s.104A(1)(b).  The applicants wish to contend that the scheme should not apply to their attended banners at their demonstration sites.  They also wish to contend that a demonstration is not caught by the statutory scheme. 

13.  For their part, the respondents accept that “displayed” in s.104A only catches bills or posters displayed with “a degree of permanence and habitual regularity”, but regardless of whether they are attended, or whether they are part of a demonstration.  In other words, the respondents do not seek to apply the scheme to temporary banners displayed as part of a demonstration (whether mobile or static) which “does not occupy the same spot with a degree of permanence and habitual regularity” (CA 1^st judgment at [42]).

14.  We were not persuaded that it is reasonably arguable that the applicants’ construction is the correct construction of s.104A(1)(b).  The Court of Appeal’s construction of that provision requiring the bill or poster to be displayed “with a degree of permanence and habitual regularity” is a sensible purposive reading of the provision to address the environmental nuisance caused by such bills or posters in place for more than a temporary or passing demonstration.  The daily display of Falun Gong banners in the same locations, even if removed at night, would undoubtedly fall within the mischief to which the statutory scheme is directed.  We therefore concluded that, even if attended and part of a demonstration, the Falun Gong banners displayed at their demonstration sites are plainly bills or posters displayed on Government land within the meaning of s.104A(1)(b).

15.  As a matter of language, there is no necessity for the bill or poster to be attached or adhered to the land in order to be caught by the scheme: see the Court of Final Appeal’s decision in HKSAR v Tse Man Fei (2016) 19 HKCFAR 492.  In that case, it was held that “to come within s.104A(1), the act of displaying, albeit not requiring attachment or adherence of the bill or poster to the land, has to concern the physical set up or putting up of the bill or poster” (at [48]). There, the question was the criminal liability of a sales representative standing selling a product next to a cardboard structure with four advertising posters on it.  We noted that s.104A was amended in 1980 to substitute the more limited provision in s.8(b) of the Summary Offences Ordinance (Cap.228).  As we held, “[d]oing so extended the reach of the offence to those bills or posters that were put up (displayed) but were not actually attached or adhered (affixed) on private or Government land” (at [43]).  In other words, the bill or poster can be loose and need not be affixed to be displayed.  As such, subject to the display “having a degree of permanence and habitual regularity”, it could also apply to a bill or poster that is part of a demonstration.

16.  Nor is there any necessity for the bill or poster to be attended for it to be caught by the scheme.  The mere fact that it is attended does not remove the display of the bill or poster from the ambit of the statutory scheme, given its purpose of the avoidance of environmental nuisance: see Tse Man Fei at [38]-[40]. Attended banners can be just as much an environmental nuisance as unattended banners.  The posters that were the subject of the prosecution in Tse Man Fei were attended in that the sales representative was carrying out his sales promotion activities next to the posters in question.  If he had been responsible for their display, within the meaning of s.104A(1)(b) as construed by the Court, there is no reason why he could not have been prosecuted simply because the posters he was displaying were attended.

17.  For these reasons, leave to appeal to raise the Construction Question (in FAMV 42 & 43/2016) and Q1 (in FAMV 213 & 214/2020) were refused.

18.  Similarly, we refused leave to appeal to raise Q2 (in FAMV 213 & 214/2020), concerning the meaning of a “demonstration” for the purposes of BL27.  The question as framed is too wide and, in any event, does not arise on the proposed appeal. There is nothing in the Court of Appeal’s judgment to suggest that demonstrators’ banners “in the sense of banners accompanying a time-limited demonstration such as a march or meeting”[7] were intended to be covered by s.104A(1)(b).  Nor does that judgment suggest that “[t]he display of banners accompanying persons during a time-limited demonstration”[8] may not be subject to protection under BL27.  As addressed above, the fact that a banner is attended is no reason to treat it as being “in a different category from unattended banners, bills, posters or graffiti for the purpose of the statutory scheme in PHMSO Section 104A-104E”.[9]

The Proportionality Issue

19.  Once it is acknowledged that s.104A(1)(b) does not apply to banners accompanying a time-limited demonstration such as a march or meeting, much of the scope for argument on the proportionality issue falls away.

20.  As a starting point, it cannot be reasonably arguable that the mere fact that permission is required to display a bill or poster on Government land necessarily constitutes an unlawful restriction of protected rights.  Such a proposition would be unduly wide.  There are many instances in the law in which the doing of an act requires permission to be obtained in advance, failing which doing the act will constitute a criminal offence.  The requirement in s.72(2)(a)(ii) of the Education Ordinance (Cap.279), with which the Appeal Committee’s recent determination in HKSAR v Cheung Kam-fai[10] is concerned, provides an example.

21.  The applicants’ substitution of Q3 for the original Proportionality Question appears to demonstrate an acceptance that the contention that the mere requirement of permission to display a bill or poster on Government land is unconstitutional is not reasonably arguable.

22.  Q3 as now advanced must be understood to be raised in the context of this case in which the judicial review arose because of the Director’s decisions to direct the removal of the applicants’ banners under the power conferred in s.104C of the PHMSO.  This is not a case where a constitutional challenge has arisen from an actual application for permission to display their banners which has been refused.  If it were, then it is conceivable a reasonably arguable case on proportionality could be mounted on the assumption that there would be evidence as to the decision-making process involved which would give rise to a properly formulated argument.

23.  The importance of the decision-making process arises from the fact that leave to apply for judicial review was granted to the applicants on the ground that s.104A(1)(b) did not satisfy the proportionality test “by reason of the criterion based on content-screening”.[11] In the Form 86 notices, the applicants contended that s.104A(1)(b) conferred an unfettered discretion on the Director to grant or refuse permission and that such a general discretion could not be cured by policy guidelines.  But this contention was refuted by evidence filed on behalf of the Director and, in the absence of an actual application for permission by the applicants, G. Lam J did not consider the evidence sufficient to enable him to address the Proportionality Issue.[12]

24.  The basis on which the constitutional challenge continues to be pursued by the applicants before us is premised on the Director being entirely at liberty to impose conditions for the grant of permission, including the screening of the content of bills or posters.  This premise was not accepted by the Court of Appeal.[13] Nor do we accept it.  Given the statutory purpose of the scheme in the PHMSO, the limited interference with the protected rights involved (on the construction of s.104A(1)(b) analysed above), and the various legal safeguards that necessarily apply to the manner which the Director may exercise his statutory discretion to approve or disapprove a display of a bill or poster, we were not satisfied that it is reasonably arguable the Court of Appeal’s judgment as to the legal certainty of s.104A(1)(b) or its proportionality is wrong.

25.  For these reasons, we dismissed the applications for leave to appeal with costs.