KWOK WING HANG AND OTHERS v. CHIEF EXECUTIVE IN COUNCIL AND OTHERS

HCAL 2945/2019

[2019] HKCFI 2476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2945 OF 2019

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REASONS FOR DECISION

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1.  At the end of the urgent hearing on 6 October 2019, I declined to grant interim relief suspending the operation of the Prohibition of Face Covering Regulation (“Regulation”) and gave directions for the further conduct of the intended proceedings. I said I would give brief reasons in writing when the courts’ business resumed on Tuesday. These are the reasons.

2.  The applicants are 24 of the Members of the Legislative Council of Hong Kong.  They intend to file an application for leave to apply for judicial review when the Court Registry opens after the holidays. The intended judicial review is targeted at the Emergency Regulations Ordinance (Cap 241) (“Ordinance”) and the Regulation made thereunder on 4 October 2019 by the Chief Executive in Council.

3.  The applicants also intend to file an inter partes summons for interim relief pending the determination of the judicial review and have proposed directions for the filing of evidence.  Pending the hearing of that summons, they seek, by ex parte summons (on notice), an “interim interim order” in similar terms for the period between now and the hearing of the inter partes summons — namely, an order that the Regulation be suspended and that the Commissioner of Police and his officers be restrained from enforcing the Regulation.

4.  Section 2(1) of the Ordinance provides:

“ On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest.”

5.  The Regulation was made by the Chief Executive in Council on 4 October relying on the public danger ground rather than the emergency ground in s 2(1).  It has come into operation on 5 October.  Its key provisions have already been set out in my decision on the evening of 4 October on an application by two individuals for similar interim relief (see [2019] HKCFI 2471) and will not be repeated here.  Essentially, section 3 prohibits (on punishment by a fine and imprisonment up to 1 year) the use of any facial covering likely to prevent identification while a person is at (a) an unlawful assembly;[1] (b) an unauthorised assembly;[2] (c) a public meeting[3] that takes place under s 7(1) of the Public Order Ordinance (Cap 245);[4] and (d) a public procession[5] that takes place under s 13(1) of the Public Order Ordinance.[6]  Section 4 provides for defences based on lawful authority and reasonable excuse.  Specific instances without limiting the scope of reasonable excuse are set out based on reasons relating to a person’s profession or employment, religion and pre‑existing medical or health reason.  Section 5 empowers a police officer to require a person to remove his or her facial covering used at a public place which the police officer reasonably believes is likely to prevent identification.

6.  Five grounds have been put forward for the intended judicial review.  They are, very broadly, first, that the Ordinance has been impliedly repealed by s 3(2) of the Hong Kong Bill of Rights Ordinance (Cap 383) either entirely or to the extent it is inconsistent with s 5 of that latter Ordinance.  Second, s 2 of the Ordinance is inconsistent with Arts 48, 62(5), 66 and 73 of the Basic Law to the extent it permits the Chief Executive in Council to bypass the Legislative Council and violates the prescribed distribution of power between the Executive Government and the Legislative Council, and because it constitutes an impermissibly general and vague delegation of legislative power.  Third, by reason of the principle of legality, the general words in s 2(1) of the Ordinance are not to be read as allowing the Government to adopt measures that infringe fundamental rights of the individual.  The Regulation is therefore ultra vires — beyond the power conferred on the Chief Executive in Council by the Ordinance.  Fourth, there is no public danger demonstrated that justifies the exercise of power under s 2(1) of the Ordinance.  Fifth, the Regulation itself amounts to a disproportionate restriction of a person’s liberty and privacy, freedom of expression and right of peaceful assembly under Arts 5, 14, 15, 16, 17 of the Bill of Rights and Art 27 of the Basic Law.

7.  Responding to the proposed grounds for judicial review in the short time available, Mr Yu SC, who appeared on behalf of the putative respondents, made the following points. First, any regulation promulgated pursuant to the Ordinance must be compliant with the Basic Law and the Bill of Rights.  There is therefore no question of the Ordinance or the Regulation derogating from the Hong Kong Bill of Rights Ordinance.  Second, delegation of power to the Chief Executive in Council to make subsidiary legislation is in itself not unconstitutional.  It is a question of degree and the objective to be achieved is discernible in s 2 of the Ordinance.  In R v To Lam Sin (1952) 36 HKLR 1, concerning reg 116A of the Emergency (Principal) Regulations 1949 made under the Ordinance, a submission was made that the Ordinance was ultra vires the Legislative Council as being a delegation of power that had wholly or partly effaced itself.  The Full Court rejected the submission because, among other things, regulations made under the Ordinance had to be tabled at the first following meeting of the Legislative Council which could repeal or amend any of them.  Third, the principle of legality does not mean there cannot be a regulation that “restricts” a freedom, but that any restriction must be lawful and proportionate.  Fourth, the suggestion there is only public disorder and no “public danger” turns a blind eye to the widespread violence and mayhem. Fifth, there is prima facie rational connection between the Regulation and the legitimate objectives it is intended to achieve, and the restriction is not on balance disproportionate.

8.  The Ordinance has been in force since its enactment in 1922 and has never been expressly repealed.  The Regulation is a piece of subsidiary legislation that, at least on the face of it, falls within the power conferred by the Ordinance.  Established legal principles require generally that an applicant seeking an interim order to suspend the operation of a law pending judicial review has to show not merely that there are serious issues for determination in the judicial review, but that there is a strong prima facie case that the law is invalid: see Re Leung Chung Hang Sixtus & Another [2018] HKCFI 1869 §13 per Chow J; Cheung Tak Wing v Communications Authority & Another [2015] 5 HKC 70 at §§26-27 per Au J; R v Secretary of State for Trade and Industry, ex parte Trades Union Congress [2001] 1 CMLR 8 at §§24-26 per Buxton LJ.  This is not to say there may not be exceptions, and Lord Goff in R v Secretary of State for Transport, ex parte Factortame Ltd & others (No 2) [1991] 1 AC 603 at 674C mentioned the possibility (which he described as “no doubt remote”) that a party may “suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just and convenient to restrain its enforcement” even though he has not discharged the heavy burden of showing a strong prima facie case that the law is invalid.  But none of the applicants in the present case has suggested there is such potential harm on his or her part.

9.  Applications for interim relief often present difficulties for the court, because it is asked to act before reaching a substantive decision, and often without even knowing what the full arguments on the substantive merits of the matter may be.  Few cases illustrate the difficulties more starkly than this one: the Regulation was made on Friday; the applicants’ papers were supplied to the putative respondents and the court on Saturday evening; what the court is being asked to do, at this Sunday morning hearing, before the putative respondents have an opportunity to file any evidence or full argument, is to grant an interim order suspending the operation of the Regulation whose undisputed purpose (though the applicants dispute its likely effectiveness) is to restore public order and reduce acts of violence.

10.  What I have heard so far indicates that the arguments and the analyses required will be complex and the questions raised are of importance, and that it would be difficult and rash to form a considered view on the merits now.  While I acknowledge that serious arguments have been advanced, I do not feel able to conclude at this stage that there is a strong prima facie case of the invalidity of the laws in question.  Practical justice suggests to my mind that it is better to focus on the judicial review itself and on having it resolved early, than to engage in successive litigation for “interim interim” relief and then interim relief based upon fragmentary evidence and understanding.  Counsel for the parties also supported an early substantive hearing, which ought to be possible towards the end of the month.  On this footing the interim period is unlikely to be a very long one. 

11.  The applicants submitted that the Regulation imposed a restriction on the rights of those who wished to take part in lawful demonstrations wearing facial covering, and that the situation in Hong Kong was “still largely contained” and should at worst be regarded as “public disorder”. 

12.  On the other hand, Mr Yu emphasised the dire situation in Hong Kong.  He submitted that Hong Kong has been experiencing the worst mayhem since the riots in 1967, the Government has a duty to take measures to restore peace and order, and the restriction imposed by the Regulation in the interim has to be balanced against the harm to the community as a whole if the measure is halted.  He also emphasised that every time a masked individual breaks the law and gets away, the rule of law is being undermined, especially in the eyes of the general public.

13.  The applicants submitted that those who had been violent would continue to wear masks despite the Regulation, and that the Regulation is not a wise or politic measure.  The court has to concern itself with legality rather than matters of policy or politics.  It seems to me that a court of law should not proceed on the basis that the Regulation will not be complied with at all.  There may be some who will break it, but it is not possible to say at any rate at this stage as a matter of fact that it will not contribute to its intended objective even in part.  Mr Yu submitted, which seems prima facie plausible, that there is an “emboldening effect”, sometimes subconsciously, when a person is wearing a mask in a public assembly, so that the person might do something he or she would not normally do, and so that the Regulation could have a preventive effect on people resorting to violence. 

14.  Leaving aside whether it is to be characterised as public disorder as the applicants submitted rather than public danger, it can be seen that the level of violence had been escalating even prior to the Regulation, with certain people, invariably masked, seriously damaging public and private property, committing arson, throwing petrol bombs and corrosive liquids, and beating up people on the streets, such as had occurred in various districts on 29 September and 1 October.  Needless to say, in these circumstances the protection of the safety of the public is a very important factor to take into account.

15.  The applicants suggest that because lawful meetings could quickly turn into unauthorised or unlawful assemblies (as recent experience has shown), it is all the more necessary for participants in lawful assemblies to wear masks in case the assemblies become unlawful.  It seems to me there is some force in Mr Yu’s riposte that in such a case such participants should distance themselves from the unlawful or riotous assemblies as soon as possible rather than to continue to participate and seek refuge behind a mask.

16.  Meanwhile, as pointed out by the putative respondents, the process of negative vetting of the Regulation by the Legislative Council may begin as soon as 16 October, when its 2019/20 ordinary session begins, as gazetted on 4 October.  Although Ms Li SC submitted that by virtue of s 2(3) of the Ordinance only the Chief Executive in Council may repeal the Regulation, Mr Yu disagreed, and the court is given to understand that, if during the negative vetting procedure, the Legislative Council resolves to repeal or amend the Regulation, such resolution will be given effect.  In R v To Lam Sin, supra, the court also said (at p 14) that the Legislative Council could repeal or amend any of the regulations made under the Ordinance.  All of this means that scrutiny of the Regulation by the legislature can begin in only 10 days’ time (from 6 October).

17.  Furthermore, as Lord Goff stated in ex parte Factortame (No 2) at p 673D, the fact that the Government is enforcing what is on its face the law of the land is itself an important matter to be weighed in the balance.  I consider that taking into account all the circumstances, the court should not step in at this stage by suspending the Regulation in the interim.

18.  It was for these reasons that I directed that there should be an early “rolled‑up” hearing of the application for leave for judicial review and (if leave be granted) the judicial review itself, and declined to grant the interim relief sought pending that hearing.