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

HCAL 2945/2019

[2019] HKCFI 2884

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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D E C I S I O N

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The Court:

Introduction

1.  In our judgment handed down on 18 November 2019 [2019] HKCFI 2820 (“Judgment”), we have set out our reasons for coming to the conclusions set out therein, but, as stated in §194 of the Judgment, we have deferred the question of relief pending a further hearing.  At our request, the parties submitted their proposed forms of orders on 19 November.  We heard the parties in the evening of 21 November.  The main substantive disputes between the parties are (1) whether there should be an order for temporary validity of the laws in question or temporary suspension of the declarations of unconstitutionality; and (2) the question of costs. 

2.  Having regard to the submissions made on behalf of the respondents, we find it appropriate at the outset to state that nothing in our Judgment condones the commission of crime or violence by any person with or without face covering.  Nor does anything in our Judgment support the illegitimate use of face covering for the purpose of concealing one’s identity while committing unlawful or violent acts.  We associate ourselves with the view expressed by Coleman J recently in Secretary for Justice v Persons unlawfully and wilfully conducting themselves in any of the acts prohibited under paragraph 1(a) and (b) of the Indorsement of Claim [2019] HKCFI 2809 at §12 that such unlawful and criminal activity as Hong Kong has witnessed is not a legitimate form of “protest” in favour of or against any particular viewpoint.

3.  We should also make it clear, lest there be any doubt, that pending the appellate process, there is inherent in our system always an uncertainty whether the lower court’s judgment will be affirmed or reversed.  If a judgment declaring a law to be invalid is reversed on appeal, the effect is that the law has always been valid, and persons who have acted contrary to it during the intervening period may find themselves to have breached that law and to have to bear the consequences.  Our Judgment is not intended to give, and cannot be taken as, any encouragement for any person to use face covering in the situations covered by the PFCR.

4.  As to the form of order, the respondents do not dispute that on the basis of our Judgment, there should in principle be declarations along the following lines:

(1) the Emergency Regulations Ordinance (Cap 241) (“ERO”) is unconstitutional insofar as it empowers the Chief Executive in Council (“CEIC”) to make regulations on an occasion of public danger and, consequentially, the Prohibition on Face Covering Regulation (Cap 241K) (“PFCR”), which was made under the ERO on the public danger ground, is invalid; and

(2) separately, s 3(1)(b), (c) and (d) and s 5 of the PFCR are invalid because they restrict fundamental rights but fail to meet the proportionality test.

5.  The respondents have, however, sought an order that notwithstanding this, (1) the relevant parts of the ERO and PFCR “do remain valid and have legal effect” until the final resolution of the respondents’ appeal against the Judgment or further order of the court (“temporary validity order”); or (2) alternatively, that the declarations be suspended in effect until the final resolution of the respondents’ appeal against the Judgment or further order of the court (“suspension order”).

6.  The respondents undertake that they will pursue their intended appeal expeditiously and, to the extent that such appeal is dealt with on an expedited basis, they submit that any temporary validity order or suspension order would not be for a very long time.

7.  The respondents have not submitted any draft notice of appeal or even grounds of appeal in writing, although Mr Yu has orally outlined a few points intended to be taken.  For present purposes we are prepared to assume there will be an arguable appeal.

8.  We have been informed that, as at 14 November 2019, a total of 632 persons had been arrested for offences under the PFCR (627 persons under s 3, and 5 persons under s 5), though out of whom apparently only 3 persons had been arrested solely for such offences.  61 persons have been charged, all under s 3 of the PFCR.  There has as yet been no conviction.  The respondents have stated that, if a temporary validity order or suspension order is granted, all ongoing proceedings for offences under the PFCR will nevertheless not be further proceeded with until the determination of the intended appeal, without prejudice to the continued prosecution of other offences not under the PFCR in the same proceedings.

Temporary validity order

9.  An order granting temporary validity to a law which the court has declared unconstitutional must be, by its very nature, exceptional, even if there is jurisdiction to make such an order.  If granted, it would have the effect of, first, permitting the Executive, during the temporary period, to continue to function pursuant to what has been declared unconstitutional and, secondly, shielding the Executive from legal liability for so functioning: Koo Sze Yiu & Another v Chief Executive of the Hong Kong SAR (2006) 9 HKCFAR 441, §33, per Bokhary PJ. 

10.  In Koo Sze Yiu, Sir Anthony Mason NPJ pointed out that Canadian authorities do not distinguish between suspending the operation of a declaration of invalidity and granting a period of temporary validity to an unconstitutional statute.  For this reason,A Cheung J (as Cheung PJ then was) stated in Chan Kin Sum Simon v Secretary for Justice & Another (unrep, HCAL 79, 82, 83/2008; 11 March 2009) at §76 that Canadian authorities in this context must be read with special care.

11.  Whether or not it would ever be right for the courts of Hong Kong to make a temporary validity order has been left open by the Court of Final Appeal and has been said to be a “very large question” involving fundamental doctrinal questions relating to, inter alia, the role of the courts as well as the rule of law and considerations of justice: Koo Sze Yiu, §§32, 61‑62.  There is no precedent for a temporary validity order having been made in Hong Kong, except at first instance and in the Court of Appeal in the case of Koo Sze Yiu, which, however, was eventually set aside by the Court of Final Appeal and substituted by a suspension order.

12.  Subsequently, in A & Others v Director of Immigration (unrep, CACV 314‑371/2017, 18 July 2008) at §8, Tang VP said:

“ It is clear that the court has the power to stay an order and that includes the power to stay a declaration. But it seems to me that a stay would not make the judgment a non-judgment: as if it had never been made. I do not believe it is possible for this court to say that it should not be assumed that our judgment does not represent our view of the law. Of course it may be that the Court of Final Appeal will eventually overturn our decision, but in the meantime, our judgment must have effect as a judgment so far as our statements of the law and their implications are concerned.”

This passage highlights the doctrinal and logical difficulties involved in a temporary validity order to be granted by the very court which has come to the conclusion of unconstitutionality. 

13.  Even if there can be jurisdiction to make a temporary validity order, it seems to us that the circumstances in which the jurisdiction arises or in which it can appropriately be exercised must be rare and truly exceptional.  The overseas examples cited in Koo Sze Yiu in which such order was made are cases where constitutional amendments were held invalid resulting in the invalidity of laws made pursuant thereto, so that there was a dire necessity “to prevent the State and society from dissolution”,[1] where all statutes enacted in the course of some 90 years were held invalid because they were not published in both official languages as required,[2] and where a statutory provision for the detention of persons acquitted of criminal charges by reason of insanity was found unconstitutional, giving rise to the risk of all insane acquittees being released into the community.[3]  

14.  The Court of Final Appeal in Koo Sze Yiu itself considered that a very high level of necessity was required before a temporary validity order could be made, assuming there was jurisdiction to make one.  There, the result of finding unconstitutional the statutory provision authorising covert surveillance of telecommunications was stark.  Hartmann J said at first instance[4] that if the ability of the Government to carry out covert surveillance was outlawed, “the well-being of our civil society will be placed in peril”, creating “an amnesty for conspirators” and that “[n]o lurid examples are necessary to illustrate the dangers that presents”.  Even on that basis, Bokhary PJ said in the Court of Final Appeal at §34: “The scenario in the present case is nothing like a virtual legal vacuum or a virtually blank statute book.  It is by no means as serious as that.  I see nothing to justify temporary validity in the present case”.  Likewise, at §58, Sir Anthony Mason NPJ said he did not regard the case before him as falling within the three categories of circumstances “where the immediate striking down of the law (1) would pose a danger to the public; (2) would threaten the rule of law; or (3) would result in the deprivation of benefits from deserving persons”.

15.  Relying on Schachter v Canada (1992) 93 DLR (4^th) 1, the respondents submit that a temporary validity order or suspension order is justified in the present case because immediately striking down the ERO and PFCR would (1) pose a danger to the public, (2) threaten the rule of law, and (3) result in the deprivation of benefits from deserving persons. 

16.  First, it is said that striking down the laws in question would pose a danger to the public.  The respondents submit that since 4 October 2019, the acts of violence and vandalism perpetrated by masked protesters or rioters have escalated and have reached a shocking level, especially in the week of 11 November.  There have been attacks on Hong Kong’s road and railway networks, wanton vandalism of government buildings, infrastructure, shopping malls, banks and selected restaurants and shops.  The details are set out in the respondents’ affirmation but need not be repeated here for they are matters of which everyone in Hong Kong will be all too painfully aware. 

17.  These reckless and irresponsible attacks had been carried out by persons wearing facial covering before our Judgment was handed down, and have continued unabated since.  There is no evidence that the frequency of these unlawful or violent acts, or the degree of violence used by the so-called “protesters”, have increased or escalated since the handing down of the Judgment.  There is undoubtedly serious danger to the public posed by these activities but, as Mr Yu accepts, those perpetrators are “diehard” radicals who defy the law with or without the PFCR.   While there are likely to be multiple causes or factors at play for the recent escalation of violence in Hong Kong, it has not been shown on the evidence before the court that postponing the coming into operation of the declarations of invalidity pursuant to our Judgment would be likely to bring about any substantial relief to the public danger currently faced by Hong Kong. 

18.  Mr Yu for the respondents has impressed upon us the dire situation of Hong Kong.  We take full cognisance of it, but we are not concerned here with any question of striking down the laws against murder, wounding, arson, riots and criminal damage or striking down the Police Force Ordinance, which might be thought to trigger the doctrine of necessity. 

19.  It is said that the striking down of the PFCR would encourage protesters to take part in violent protests with less fear in support of the actions of the more radical ones including those who have occupied the premises of tertiary educational institutions.   This is an argument that we considered in our Judgment, and we accepted that the measures under the PFCR were rationally connected to the legitimate aims of (i) deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, and (ii) facilitation of law enforcement, investigation and prosecution, pursued by the Government.  However, at §164 of the Judgment, we concluded that the evidence before us was far from clear that the PFCR had achieved to any substantial degree the intended aims. 

20.  Secondly, counsel for the respondents submit that striking down the ERO and PFCR would threaten the rule of law, because the unintended but inevitable and unfortunate message sent to those prone to use violence would be the court’s sanction of the use of face covering in public order events and that the court “is condoning the commission of crime”.[5]  We do not accept this contention.  As we have stated at the outset, nothing can be further from this court’s views stated in the Judgment than condoning the commission of crime.  Further, we are unable to accept the notion that a judgment should be suspended or a law held invalid should be given temporary validity merely because failing to do so would, or may, be wrongly perceived in certain quarters as a message or signal to the public unintended by the judgment.

21.  Thirdly, the respondents say that striking down the laws will deprive Hong Kong residents who deserve protection against these outbreaks of violence and vandalism of the measures of protection which the Government sought to provide.  However, as we have explained above, the danger to the public is posed by radicals who commit acts of violence and vandalism.  In the context of the present case, we consider that this third point is, in substance, the same as the first point but viewed from a different angle.

22.  In all, we do not think that the kind of circumstances exist in the present case that would justify the grant of a temporary validity order even assuming (without deciding) that we have the power to do so.

Suspension order

23.  Short of a temporary validity order, there is undoubted jurisdiction for the court to suspend a declaration of unconstitutionality or postpone its coming into operation.[6]  Its effect is that if the Government continues to function pursuant to the impugned measure, it would not be openly acting against a court’s declaration — something which the Government is, very properly if we may say so, anxious to avoid: Vallejos Evangeline Banao aka Vallejos Evangeline B. v Commissioner of Registration & Anor (unrep, HCAL 124/2010, 28 October 2011), §§11‑13. 

24.  But a suspension order does not provide a shield to legal liability; it does not endow acts undertaken in the period of postponement with any greater validity than they would have if the declaration of invalidity were made immediately: Koo Sze Yiu, §§35, 50, 58.  It is also not a source of authority for the Government to continue to act in pursuance of the laws declared by the court to be invalid, although this may mistakenly be understood to be its effect by some members of the public.

25.  In Koo Sze Yiu, the Court of Final Appeal suspended the declarations of unconstitutionality in respect of s 33 of the Telecommunications Ordinance (Cap 106), which authorised the Chief Executive to order the interception or disclosure to the Government of telecommunications, and the Law Enforcement (Covered Surveillance Procedure) Order, which laid down a set of procedures governing how covert surveillance was to be conducted.  It seems that the effect envisaged in that case was that the Government would continue to rely upon s 33 and the executive order in question to carry on covert surveillance even though these provisions had been held unconstitutional, without the risk of being in contempt of court or criticised for having flouted a court’s order, but without any shield from legal liability.

26.  In a similar vein, in Chan Kin Sum Simon v Secretary for Justice & Another (unrep, HCAL 79, 82, 83/2008; 11 March 2009) at §64, A Cheung J explained the effect of a suspension order as follows:

“ … in continuing to do what it used to do in accordance with the statutory provisions that have been successfully challenged, the relevant Government official will not be acting in contravention of an operative declaration and risk committing a contempt of court for so acting, which would have been the case if there had been no suspension. However, it does not mean that the Government and the official concerned will not be acting contrary to law. For regardless of whether there is an operative declaration, the Court’s judgment in which it is held that the offending provisions are unconstitutional constitutes, by definition, part of the common law of Hong Kong. The ratio decidendi of the decision of the Court constitutes part of the case law of Hong Kong. To continue acting as before, the Government and its official would be acting contrary to the common law of Hong Kong as decided by the Court. So regardless of whether there is any operative declaration, by acting contrary to the common law as held by the Court, the Government and its official would be acting contrary to law and incurring legal liability as a result. The temporary suspension of the declaration of unconstitutionality only prevents the Government from acting in contravention of a declaration in operation and removes the risk of the Government official’s action amounting to a contempt of court, which is an even more serious matter than acting contrary to the law (including common law) of Hong Kong.”

27.  The applicants submit that it is of paramount importance to the rule of law that the constitution is respected and that to sanction the Government to continue to act on a law found to be invalid risks damage to the rule of law and constitutionalism.  As the Court of Final Appeal emphasised in Koo Sze Yiu, however, it is sometimes for the purpose of preserving the rule of law that suspension of declaration of invalidity may be called for; so the grant of a suspension order in an appropriate case does not in our view damage the rule of law. 

28.  But what the applicants’ submission does highlight is that even suspension orders (as opposed to temporary validity orders) have been regarded as an example of exceptional measures called for by exceptional circumstances (Koo Sze Yiu, §28), and must therefore be reserved for cases in which a necessity has arisen.  The test is essentially one of necessity, and involves a balancing exercise (see Chan Kin Sum Simon, §79), though the level of necessity for making a suspension order is “substantially lower” than that required before the court will make a temporary validity order, assuming there is jurisdiction to make one: Koo Sze Yiu, §60. 

29.  It will be noted that the PFCR creates offences and its enforcement will involve arrests.  It seems to us a very strong thing to say that even though a regulation creating an offence has been held invalid, the Government should be allowed to continue to make arrests and charge the arrestees with offences based on it.  As recognised in Koo Sze Yiu at §38, an impact on freedom of the person is even more serious than the freedom and privacy of communication engaged in that case. 

30.  Furthermore, a suspension order granted by us would not invest in the PFCR any greater validity than it has under our Judgment.  In this regard the present case is closer to the situation in A & Others v Director of Immigration than to that in Koo Sze Yiu.  In A & Others v Director of Immigration, supra, it was found that the power of detention under s 32 of the Immigration Ordinance (Cap 115) was contrary to the Bill of Rights and therefore unlawful.  On the application of the Director for a suspension or stay order, Tang VP pointed out at §§4, 8 & 9 of the Court of Appeal’s decision that a suspension order with regard to the declarations of unconstitutionality would not suspend the judgment itself, and in the event of an application by any of the detainees for a writ of habeas corpus, a first instance judge would be bound by their decision to grant it. 

31.  Our Judgment is not, of course, binding on another Court of First Instance judge, but it can nonetheless be anticipated to be relied upon by persons arrested or to be arrested in the event any arrests are made based on the PFCR, leading to even more uncertainty and chaos. 

32.  As Tang VP said in A & Others v Director of Immigration and A Cheung J said in Chan Kin Sum Simon, a suspension order does not suspend the effect of the judgment as if it had never been delivered.

33.  We have, among other things, held that s 3(1)(b), (c) and (d) and s 5 of the PFCR fail to satisfy the proportionality test because they amount to a more serious restriction of the fundamental freedom of peaceful assembly, freedom of speech, right to privacy, freedom of the person, and right to liberty, than is reasonably necessary for the purpose of advancing the legitimate societal aims pursued.  Even if a suspension order is granted, there would be nothing to prevent a person from relying on the Judgment in any context (although we have at the beginning of this decision drawn attention to the risks involved).  There could be endless arguments between such a person and the Government as to the legal implications of the actions the person has taken in light of the Judgment and the actions taken by the Government in light of the suspension order.

34.  The factual situation is therefore quite different from Koo Sze Yiu where the infringement of rights (freedom and privacy of communication) was to be done covertly.  As A Cheung J explained in Chan Kin Sum Simon at §67:

“… In a covert surveillance situation, almost by definition, the victim of covert surveillance would probably have been unaware of the unlawful covert surveillance at the time it took place. There would be, in such a case, no question of the victim seeking immediate relief against the Government, such as applying to court for an injunction to stop the surveillance. If, as is to be expected in most cases, the covert surveillance was only discovered after the event, all the victim could realistically do would be to sue the Government for damages. …”

35.  In contrast, given that the PFCR is to be enforced by direct confrontation including arrests, a suspension order would seem more likely to fuel further battles than facilitate effective functioning of the law and government.

36.  As to the ERO, the respondents submit that it is necessary to suspend the declaration of unconstitutionality of the ERO in relation to the public danger ground because this would deprive the Government of the ability to introduce further measures under the ERO.  It is also submitted that while this court has pointed out that the term “public danger” is undefined, there is in these proceedings no dispute that there is public danger in Hong Kong; that, as is common ground, any measure introduced under the ERO that creates an inroad into fundamental rights will have to serve a legitimate aim with rational connection and strike a fair balance as being no more restrictive than reasonably necessary; and that any measure introduced will also go through the procedure of negative vetting, notwithstanding the uncertainties over the precise legal status of that procedure mentioned in §§69‑73 of our Judgment.  We are however not persuaded by this reason because even with a suspension order, the status of any new measures introduced under the ERO on the public danger ground will necessarily be in doubt because of the considerations mentioned in the passages in A & Others v Director of Immigration and Chan Kin Sum Simon set out above.  This is an inherent uncertainty arising in our system pending an appeal from a court’s judgment to a higher court: Vallejos Evangeline Banao, §§15‑17.  To grant a suspension order in relation to ERO would be likely to create more confusion and legal uncertainty than is inherent in the system.

Conclusion

37.  For these reasons, we decline to make any temporary validity order or suspension order.

38.  Nevertheless, we recognise that our Judgment is only a judgment at first instance, and will soon be subject to an appeal to the Court of Appeal.  In view of the great public importance of the issues raised in this case, and the highly exceptional circumstances that Hong Kong is currently facing, we consider it right that we should grant a short interim suspension order so that the respondents may have an opportunity to apply to the Court of Appeal, if so advised, for such interim relief as may be appropriate.  Accordingly, we shall grant an interim temporary suspension order to postpone the coming into operation of the declarations of invalidity for a period of 7 days up to the end of 29 November 2019, with liberty to apply.

Costs

39.  There is no dispute that costs should generally follow the event.  The debate has been whether the applicants should be awarded their full costs given that a number of the grounds they advanced have failed, and the number of counsel to be certified.

40.  In our judgment, given the applicants have raised certain wholly discrete grounds supporting somewhat different declarations which had taken up time and failed, it is just that they should not be awarded the full amount of their costs.  In all the circumstances we consider it fair that the respondents should have to pay 80% of the applicants’ costs in each case.

41.  The respondents accept the applicants in HCAL 2945 and 2949 should have a certificate for 3 counsel and 2 counsel respectively.  In our view, that is the appropriate order and we reject the applicants’ requests for any higher certificate.

Disposition

42.  For the above reasons, and for the reasons in our Judgment, there will be the following orders:

HCAL 2945/2019

(1) The Applicants be granted leave to amend the Form 86 dated 5 October 2019 as per the draft provided to the Court on 28 October 2019.

(2) The Applicants be granted leave to file the 2^nd Affidavit of Kwok Wing Hang dated 23 October 2019.

(3) The Putative Respondents be granted leave to file the Affidavit of Dr Tsui Pui Wang Ephraem dated 23 October 2019.

(4) The Applicants be granted leave to apply for judicial review on the grounds as set out in the Form 86 as amended.

(5) There be a declaration that

(a) the Emergency Regulations Ordinance (Cap 241) (“ERO”), insofar as it empowers the Chief Executive‑in‑Council to make regulations on any occasion of public danger, is incompatible with the Basic Law; and

(b) consequentially, the Prohibition on Face Covering Regulation (Cap 241K) (“PFCR”) made pursuant to the ERO on an occasion of public danger is accordingly invalid and of no effect.

(6) There be a declaration that Section 3(1)(b), (c) and (d) of the PFCR is inconsistent with Article 27 of the Basic Law and Articles 14, 16 and 17 of the Hong Kong Bill of Rights, and is therefore null, void and of no effect.

(7) There be a declaration that Section 5 of the PFCR is inconsistent with rights under Article 28 of the Basic Law and Article 5 of the Hong Kong Bill of Rights, and is therefore null, void and of no effect.

(8) The declarations in paragraphs (5), (6) and (7) above be suspended so as to postpone their coming into operation until the end of 29 November 2019 or further order of the court.

(9) The Applicants shall be entitled to 80% of the costs of the application for leave to apply for judicial review and the application for judicial review, including all costs previously reserved, with certificate for 3 counsel.

(10) There be liberty to apply.

HCAL 2949/2019

(1) The Applicant be granted leave to amend the Form 86 dated 8 October 2019 as per the Notice of Amendment dated 24 October 2019.

(2) The Applicants be granted leave to file the 2^nd Affidavit of Leung Kwok Hung dated 29 October 2019.

(3) The Putative Respondents be granted leave to file the Affidavit of Dr Tsui Pui Wang Ephraem dated 23 October 2019.

(4) The Applicant be granted leave to apply for judicial review on Grounds 2 and 4 as set out in the Form 86 as amended.

(5) There be a declaration that Section 5 of the PFCR is inconsistent with Article 28 of the Basic Law and Article 5 of the Hong Kong Bill of Rights, and is therefore null, void and of no effect.

(6) The declaration in paragraph (5) above be suspended so as to postpone its coming into operation until the end of 29 November 2019 or further order of the court.

(7) The Applicant shall be entitled to 80% of the costs of the application for leave to apply for judicial review and the application for judicial review, including all costs previously reserved, with certificate for 2 counsel.

(8) There be liberty to apply.

 

[1] Federation of Pakistan v Tamizuddin Khan, PLR 1956 WP 306 and Special Reference No. 1 of 1955, PLR 1956 WP 598.

[2] Re Manitoba Language Rights [1985] 1 SCR 721.

[3] R v Swain [1991] 1 SCR 933.

[4] HCAL 107/2005; 9 February 2006, §§158-159.

[5] Respondents’ skeleton submissions, §26.

[6] Sir Anthony Mason NPJ in that case seems to have preferred the formula of postponement of the making of the declaration: see §§59-60.