HKSAR v. ZEN JOSEPH AND OTHERS

Press Summary (English)

Press Summary (Chinese)

HCMA 446/2022, [2026] HKCA 1639

On Appeal from [2022] HKMagC 12

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 446 OF 2022

(ON APPEAL FROM WKS NOS 4829 - 4833 OF 2022)

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J U D G M E N T

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Table of Contents

Hon Poon CJHC (giving the Judgment of the Court):

A.  Introduction

1.  In the proceedings below, the prosecution alleged that the 612 Humanitarian Relief Fund (“the Fund”) was a local society within the meaning of the Societies Ordinance (Cap 151) (“SO”) established on 15 June 2019; and that the appellants who were the Fund’s trustees (“A1” to “A5” respectively), and Mr Sze Ching-wee who was the secretary‑general of the Fund’s secretariat (“D6”), were office-bearers. They were charged in that capacity with the offence of failing to apply for registration or exemption from registration of the Fund within one month of its establishment between 16 July 2019 and 31 October 2021, contrary to section 5C(1) of the SO. The Secretary for Justice gave the written consent to prosecution under section 35 of the SO on 13 April 2022. After trial, Principal Magistrate Ada Yim (as she then was) (“the Principal Magistrate”) on 25 November 2022 found them guilty as charged.[1] For sentence, she fined each of them $4,000.

2.  The appellants appeal against conviction only under section 113 of the Magistrates Ordinance (Cap 227) (“MO”). On 1 November 2024, Toh J, upon the respondent’s application, transferred the appeal to the Court of Appeal for determination pursuant to section 118(1)(d) of the MO.

3.  A magistracy appeal against conviction under section 113 of the MO is by way of rehearing: Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70, per Bokhary PJ at [19]. Recently, in HKSAR v Hui Lai Ki (2024) 27 HKCFAR 265, Fok PJ reiterated the principles at [47] thus:

“(1) An appeal under s.113 of the MO is conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the appellate court might admit under its statutory power to do so.

(2) Each party bears its respective burden — the appellant to uphold the appeal and the respondent to uphold the conviction — and the parties, subject to the overriding supervision of the Registrar, or ultimately the appellate Judge, will determine the contents of the appeal bundle bearing in mind the burdens they have to discharge.

(3) The Magistrate’s statement of findings will form part of the appeal bundle.

(4) The grounds of appeal will inform the appellate court of those areas where the appellant will seek to persuade the appellate court to depart from the Magistrate on findings of fact or law when conducting the rehearing.

(5) Error by the Magistrate, especially an error constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(6) The test in determining whether an error by the Magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(7) Absent the appellate court identifying any error by the Magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution the guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.”

4.  As informed by the perfected grounds of appeal, seven main issues raised at trial, and found in favour of the prosecution by the Principal Magistrate, now require our determination.[2]

5.  First, the prosecution case was that the Fund was an “association of persons” falling within the statutory definition of “society” in section 2(1) of the SO. Since the term “association of persons” is not statutorily defined, the issue is: what is the proper construction of “association of persons”? (Issue 1)

6.  Second, it is common ground that the registration scheme of a society in the SO is a restriction on the right to freedom of association under article 18 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“BOR 18”) and article 27 of the Basic Law (“BL 27”). As required by article 39 of the Basic Law (“BL 39”) and BOR 18(2), the restriction is permissible only if it is both prescribed by law and is necessary, among others, in the interests of national security or public safety, and the protection of the rights and freedoms of others.[3]  The appellants challenge the constitutionality of the registration scheme, raising two broad issues:

(1)  Does the requirement to apply for registration or exemption from registration fail to satisfy the “prescribed by law” requirement because:

(a)  the term “society” is devoid of legal certainty?

(b)  the date as to when a society is “established”, which starts the one-month period for applying for registration, is legally uncertain because “society” is incapable of a sufficiently clear definition?

(c)  there are uncertainties in the administration of the registration scheme?

(Issue 2)

(2)  Does the requirement to apply for registration or exemption from registration fail to satisfy the proportionality test as propounded in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372? (Issue 3)

7.  Third, on the facts of the present case:

(1)  Depending on the answer to Issue 1, was the Fund an “association of persons” within the meaning of the SO? (Issue 4)

(2)  If the Fund was a society, when was it established? (Issue 5)

(3)  Was each of the appellants an “office-bearer” of the Fund as statutorily defined in section 2(1) of the SO? (Issue 6)

8.  Finally, section 5C(2) provides for a statutory defence to a charge under subsection (1) if the defendant establishes that he has exercised due diligence to ensure the society complied with section 5 and that the failure occurred for reasons beyond his control. Is the common law defence of “reasonable and genuine belief” available as well? (Issue 7)

B.  Facts

9.  The evidence adduced by the prosecution consisted mainly of two sets of admitted facts admitted pursuant to section 65C of the Criminal Procedure Ordinance (Cap 221) dated 26 and 27 September 2022 respectively,[4] together with the exhibits attached, which were not in dispute.[5]  The prosecution also called five witnesses whose evidence did not add anything in terms of substance.[6]  All the appellants and D6 elected not to give evidence, which is their right. Nor did they call any witness. Certain documents were adduced by the defence which, it would appear, did not materially impact on the prosecution case.

10.  From the evidence adduced below, the following undisputed facts emerged.

B1.  The protagonists

11.  A1 is a bishop emeritus of the Catholic Diocese of Hong Kong. A2 is a practising barrister and former member of the Legislative Council (“LegCo”). A3 is a former associate professor of the Lingnan University. A4 is a former LegCo member. A5 is a professional singer. D6 was a full-time employee of the secretariat of the Fund since 1 July 2019. He was also the sole proprietor of ET Aqua Consultancy (“ET Aqua”), which commenced business on 1 August 2019 providing secretariat services to the Fund.[7]  At all material times, all the appellants and D6 resided in Hong Kong. A1, A3, A5 and D6 had a clear criminal record at the time of the trial.

12.  Alliance for True Democracy Limited (“ATDL”) is a company limited by guarantee, which was incorporated in Hong Kong on 26 July 2013.

B2.  Establishment of the Fund

13.  It is now a matter of public record that since March 2019, the opposition to the amendment bill to the Fugitive Offenders Ordinance (“Amendment Bill”) plunged Hong Kong into serious social unrest, resulting in violent riots and unlawful assemblies across the territory on an unprecedented scale. On 12 June 2019, crowds protested against the scheduled second reading of the Amendment Bill in the LegCo by obstructing roads in Admiralty and Central. When the police mounted dispersal operations, violent clashes ensued and many were arrested.

14.  On 15 June 2019, A2 to A5, Sham Tsz Kit (“Sham”), the convenor of Civil Human Rights Front (“CHRF”), together with others, attended a press conference held by the CHRF.[8]  At the outset of the press conference, they chanted slogans, expressing their view that there was no riot but only “tyranny”; denouncing the “suppression” by the police; demanding the withdrawal of the Amendment Bill which they described as “evil law”; and appealing the public to join the procession and demonstration organized by the CHRF on 16 June 2019. They then took turn to speak. Relevantly:

(1)  A2 announced that a provisional fund called “Anti‑Extradition Protest Trust” would be established with A2 to A5 as provisional trustees to collect public donations. A2 to A4 emphasized that the object of establishing the fund was to provide assistance, including medical and legal assistance, to those who were injured and arrested on 12 June 2019.

(2)  A2 explained that although there were two existing funds of which A4 and some other individuals were trustees respectively, they were limited by their articles and could not be used to support those injured or arrested on 12 June 2019. Hence the need to establish the provisional fund. A2 and A5 acted as the provisional trustees because of their relevant experience in handling funds.

(3)  A2 further said that legal documents and financial arrangements would be prepared in the coming few days. Such steps were necessary to ensure the accountability to the public for their donations made to the fund. A bank account from “公民起動” would be used to “park” the donations received for the fund in the meantime.

(4)  A2, A4 and Sham appealed to the public for making donations to the fund, in particular, when joining the procession and demonstration on 16 June 2019.

(5)  A5 said that a Facebook page had been set up for the fund (“the Fund’s Facebook Page”) and anyone in need could send a private message to the fund. She also provided another email address for the same purpose.

15.  On 19 June 2019, A2 to A4, in their capacity as provisional trustees, posted a message on the Fund’s Facebook Page, stating that a total of HK$12,085,488.71 was raised during the procession.[9]  On the available evidence, it was the first donations received by the Fund. The message continued:

“The Provisional Trustees will meet as soon as possible to discuss and prepare the constitution of the Trust. In the meantime, the Secretariat is contacting those who have been injured or arrested in the anti-extradition protests to offer humanitarian assistance. For anyone who needs assistance, please contact us at any time.

After looking into the case, the Trust will refer the case to the necessary services, including medical/psychological/legal assistance, and the relevant expenses will be aided by the Trust. We will protect privacy of individuals in the course of providing such assistance.”

16.  On 28 June 2019, the appellants, acting as trustees, signed a Trust Deed in relation to the Fund (“the Trust Deed”).[10]  Paragraph 1 of the Trust Deed set out the interpretations of the terms used in the instrument. Paragraph 2 of the Trust Deed stipulated the objects of the trust as:

“2.1 To give financial aid, assistance or provision to any person who was or has been involved in any campaign, protest or advocacy (‘public protest’) against the passing of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (‘2019 Bill’) in the Legislative Council of the Hong Kong SAR including particularly but not limited to payment of:

(a) legal expenses incurred, or to be incurred, in any legal proceedings (both criminal and/or civil), public inquiries, formal complaints or investigations, including all incidental disbursements or expenses in connection with such public protest;

(b) living or medical expenses or financial provision for the needs of such persons in such amount and manner as the Trustees shall think fair and reasonable so as to enable them to resume a normal life; and

(c) a compassionate gift to the immediate family members of any person who dies in a public protest, or any person or individual who suffers physical or mental injuries in a public protest in such amount and manner as the trustees shall think fair.

2.2 To make grants, or subsidies for public campaigns and advocacy for the promotion of human rights and freedom and upholding of the Rule of Law in furtherance of the spirit and objects of the public protest against the passage of the 2019 Bill, including but not limited to:

(a) sponsoring or supporting inquiries, investigations, seminars, symposia, or conferences (whether related to the public protest or other public incidents) held in Hong Kong;

(b) sponsoring persons or groups or delegations to take trips to places outside Hong Kong to attend seminars, conferences, meetings or hearings including particularly those held by international bodies such as United Nations or other human rights treaty organizations; and

(c) payment of legal expenses incurred or to be incurred, arising from or related to the above object.

2.3 To make grants, provision or subsidies to the organizers of any public protest or activities against the passage of legislation or regulation in the Legislative Council of Hong Kong which may jeopardize human rights and the Rule of Law in Hong Kong including payment of legal expenses incurred for or in connection with this object.

2.4 To make donations to any organization that has as its objects the promotion or protection of human rights and upholding of the Rule of Law.”

17.  Clause 3 of the Trust Deed dealt with the administration of the trust in these terms:

“3.1 The Trustees shall hold all the trust moneys pertaining to the Fund in the account or accounts of any licensed banks in Hong Kong and to apply it for the object of this Trust.

3.2 Employment of Agents

(a) The Trustees may employ any such persons (who shall not be the Trustees) to perform such duties as the Trustees consider necessary for the proper administration of this Trust at such reasonable remuneration or on such reasonable terms as the Trustees think fit.

(b) Without prejudice of the generality of the foregoing, the Trustees may appoint in writing a firm of solicitors or accountants, or a non-governmental organization to act as the custodian or nominee for the keeping and operation of the Fund by the bank account of such custodian or nominee.

3.3 Fundraising

The Trustees may raise funds by appealing for and inviting donations and contributions from any persons, associations, societies or corporations by way of cash or otherwise, and accept such donations and contributions or for the Trust provided that the Trustees shall not undertake any permanent trading activities in raising funds for the object of this Trust.

3.4 Borrowing

For the purpose of fundraising or administration of this Trust, the Trustees may borrow money on such reasonable terms as the Trustees may think fit.

3.5 Duty to act jointly or with necessary majority

The Trustees shall make the best endeavour to act jointly. If and in case the Trustees or any of them shall at any time disagree or differ from the others as to the exercise of any of the power or discretion under this Deed or encounter difficulty in acting with unanimous consent, such power or discretion may be exercised by a majority of not less than 4 of the Trustees provided that the majority so exercising such power or discretion shall keep records in writing of the exercise of it (with reasons) and inform the minority of the Trustees not exercising such power and discretion with due expedition.”

18.  By virtue of a supplemental trust deed signed by the applicants on 14 December 2020 (“Supplemental Trust Deed”),[11] Clause 3.5 of the Trust Deed was amended whereby the majority of not less than 4 trustees were replaced by 3; and the Fund provided indemnity to the applicants as trustees by a new Clause 6.2.

19.  On 4 July 2019, the appellants as trustees of the Fund and Joseph Cheng Yu Shek as director of ATDL signed an agreement (“ATDL Agreement”),[12] whereby the appellants appointed ATDL as the custodian for the trust moneys for the Fund (Clause 1); and ATDL agreed to maintain at least one bank account for the keeping of the trust monies and operate the account according to the appellants’ instructions (Clause 2). In the event, ATDL provided its bank account held with HSBC to the Fund (“ATDL Account”).

20.  On 6 July 2019, A1 to A4 and another person held a press conference.[13]  A2 announced that the provisional fund established on 15 June 2019 was formally named as “612 Humanitarian Relief Fund”; and that the four provisional trustees unanimously agreed to invite A1 to join as an additional trustee. She further explained the background to its establishment, its objects, political belief, financial arrangements and scope of work, which was supplemented by A3 and A4. The details included:

(1)  The name of the Fund was adopted to commemorate 12 June 2019, which they regarded as an important day when “young people and ordinary citizens resisted violent suppression and succeeded in stopping the passage of this ‘evil law’”.

(2)  The Fund was not limited to those injured or arrested on 12 June 2019 but extended to all involved in the opposition movement to the Amendment Bill. Moreover, it would also provide funding for raising the political demands behind the movement at the international level.

(3)  Since the Fund did not have a bank account, ATDL was appointed as the custodian of the moneys it received. ATDL’s bank account would be used to receive public donations and deal with its expenses. The Fund would publish regular income and expense reports and appoint an auditor to audit its accounts.

21.  A1 said that he was pleased to accept the invitation of the provisional trustees to join the Fund. He had confidence in them who, he believed, would do a good job. He expressed hope that the public would be encouraged by the Fund; that the Fund would offer assistance to those who stood up but were injured; and that the public would continue to support the Fund.

B3.  Operations of the Fund

B3.1  Trustees’ meetings

22.  Since the establishment of the Fund, the appellants as trustees held a total of 69 (mostly weekly) meetings at various places in Hong Kong until August 2021.[14]  As recorded in the minutes of the meetings, they dealt with four broad categories of matters:

(1)  Reports by the secretariat. They covered reports and follow‑up reports of cases for assistance; financial briefings, manpower and administrative and salary issues of the secretariat, reports of other work undertaken by the secretariat, including contacts with some professional sectors, political parties and organizations, some of which were overseas.[15]

(2)  Applications and approval of cases.[16]  The trustees discussed individual cases, including assistance for those who had left Hong Kong.[17]  The cases covered not only assistance for individuals but also various miscellaneous items,[18] projects,[19] and organizations both locally[20] and overseas.[21]  Some cases involved large sums of money.[22]

(3)  Discussions on a wide range of matters, including administrative issues of the secretariat and the Fund, including setting up of websites and preparation of promotional materials, appointment of auditors, salaries for the staff of the secretariat; the principles of approving applications; which application was to be approved; fees and expenses for legal and other professional services rendered to those in need; various criminal proceedings brought against different individuals in connection with the Anti-Amendment Bill Movement; exchanges with contacts in overseas countries such as Australia;[23] and fund-raising.

(4)  Financial arrangements and matters, including the management of funds in the bank account; the procedure and documents for claiming allowance and expenditure; signing of documents for approved applications.

B3.2  The secretariat and D6

23.  The Fund’s secretariat was responsible for its daily operations. D6 was employed on a full-time basis as the secretary‑general since 1 July 2019,[24] responsible for the administrative and financial work of the secretariat.[25]  At trial, D6’s defence was that he was only an independent contractor engaged by the Fund to provide administrative work to the secretariat and acted in accordance with the trustees’ instructions; and that accordingly, he was not a member of the governing structure of the Fund or an office‑bearer. He otherwise had no serious dispute about his involvement in the operations of the Fund as demonstrated by the documentary evidence. Based on the evidence and for the reasons that she gave, the Principal Magistrate found D6 to be the secretary-general of the secretariat and an office‑bearer of the Fund. Since D6 has not appealed, a brief description of his work and involvement in the secretariat would suffice for present purpose.

24.  D6 on 26 July 2019 registered the web domain “612Fund.HK” for the Fund[26] and on 8 August 2019 registered the telephone number 9845xxxx for the Fund’s use under his personal name.[27]  He was further tasked by the trustees to set up a business to hire employees and remunerate them.[28]  On 22 August 2019, he set up ET Aqua as a sole proprietorship with effect from 1 August 2019 for such purposes.[29]  From August 2019, the Fund engaged ET Aqua to provide services to its secretariat.

25.  Pursuant to the trustees’ resolution at the 12^th meeting on 18 September 2019,[30] ET Aqua on 20 September 2019, 5 December 2019 and 1 April 2020 signed three agreements for the secretariat using the office premises at Eaton House, Kowloon for respectively, 3 months with effect from 1 October 2019, 3 months and 17 days with effect from 9 December 2019, and a monthly rolling basis from 1 May 2020 onwards.[31]  ET Aqua also engaged employees for the secretariat. The fees under these agreements, the expenses in relation to ET Aqua’s employees and the secretariat including petty cash were all paid by the Fund.[32]

26.  D6 attended numerous trustees’ meetings, where he made reports to the trustees on the operations of the secretariat, administrative[33] and financial matters[34] and the interactions with other local and overseas organizations.[35]  On 7 October 2019, A1 to A4, in their capacities as trustees, authorized D6 to approve any expenditures that did not exceed HK$20,000.[36]  D6 finalized drafts of documents for the trustees’ approval before the documents would be disseminated to the public.[37]  He contacted auditors for the draft financial guidelines for the Fund.[38] He also executed the resolutions of the trustees.[39]  He even provided his personal account with Hang Seng Bank for dealings with the Fund’s monies, some of which appeared to be administrative expenses.[40]

27.  In relation to the Fund’s financial affairs and internal operations, there was an unsigned document entitled “The Financial Guidelines of the 612 Humanitarian Relief Fund v0.95 2021021” (“the Financial Guidelines”).[41] As stated in the Introduction to the Financial Guidelines:[42]

“The 612 Humanitarian Relief Fund (the Fund) was formally established on 6 July, 2019. The Fund’s Trustees act in accordance with the Fund’s Trust Deed (Appendices 1a and 1b) and they entered into an agreement (Appendix 2) with the Alliance for True Democracy Limited (ATD) whereby ATD shall provide a bank account (Schedule 1) (hereinafter referred to as ‘the Fund Account’) as custodian of the Fund’s capital and provide cashier services in accordance with the agreement and the instructions of the Fund’s Trustees.

The Fund currently has five Trustees, namely Cardinal Joseph Zen Ze-kiun, Margaret Ng Ngoi-yee, Hui Po-keung, Cyd Ho Sau-lan, and Denise Ho Wan-see, and a Secretariat established to implement the resolutions of the Trustees and to handle the daily administrative and financial work of the Fund. The Secretary-General of the Secretariat is Sze Ching-wee, who is responsible for day-to-day management and reporting to the Fund’s Trustees.

For all disbursements of the Fund’s monies, payment documents must be signed by three or more Trustees of the Fund. The Secretariat shall then notify ATD that the relevant transactions shall be executed. The Fund’s Trustees may also resolve to formulate a code of practice for financial matters, notify ATD of the relevant decision, and authorize the Secretary-General to sign payment documents in accordance with the code of practice. The Secretariat shall then notify ATD that the relevant transactions shall be executed.

Since August 2019, the Fund has engaged Et Aqua Consultancy, a sole proprietorship owned by Sze Ching-wee, to provide secretariat services for the Fund, and the Fund would pay service fees and reimburse expenses based on the service fee invoices submitted by Et Aqua.”

The Financial Guidelines then set out guidelines in connection with the financial affairs of the Fund, including keeping of accounts for donations received; payment procedures; work flow for the operations of the Fund and administrative expenses; loans for cash assistance; and petty cash account.

28.  It is not clear from the evidence if the Financial Guidelines had been formally adopted by the Fund. That said, as will be elaborated below, it is of some evidential value in the overall assessment of Issues 4 and 5.

B3.3  Interactions with the public

29.  The Fund maintained a website (“the Fund’s Website”) which explained to the public its objects, identified the trustees giving their personal and political profile[43] and the scope of its aid. Relevantly, it claimed that it was established on 15 June 2019. It provided a link for making a donation by online means, indicating that donations may be made by bank transfer or by cheque; and the telephone hotline 9845xxxx (registered under D6’s name). Work reports were published,[44] in which the Fund publicized its political beliefs, its establishment and operation, its scope of work, the amount of and the use of donations and the means of contact.[45]  The Fund’s Website also published contacts of other political organizations, such as the CHRF.

30.  The Fund’s Facebook Page posted information similar to that published on the Fund’s Website. It also published posts about the amount of donations received from the public from time to time.

31.  In their capacity as trustees, the appellants on numerous occasions introduced to the public the establishment of the Fund, explained how the Fund operated, promoted the political belief of the Fund and appealed to the public for donations and support of the Anti-Amendment Bill Movement, including:

(1)  the press conferences on 15 June and 6 July 2019;

(2)  A3 and A5 describing the operations of the Fund on Facebook live;[46]

(3)  A2 and A3 describing the operations of the Fund on Facebook live;[47]

(4)  A1 promoting the monthly donation programme of the Fund in a video clip on 21 April 2021.[48]

B3.4  Donations and payments

32.  The Fund solicited donations from the public through the Fund’s Website, Facebook live sessions, open promotions, and fundraising street booths during a public procession on 1 January 2020. At that public procession, A1, A2 and A4 explained to the participants the Fund’s work, political belief and purpose and scope of its assistance.[49] It worked with other political parties, such as the Democratic Party, in soliciting public donations.[50]  Those political parties raised donations for the Fund during public processions held in June, August and December 2019.[51]  The Fund publicly acknowledged and thanked them on the Fund’s Website.[52]  As seen already, funds raising was one of the topics discussed at the trustees’ meetings.[53]

33.  Between June 2019 and October 2021, about 103,000 deposits were made into the ATDL Account, amounting to about HK$270 million; about 7,600 withdrawals, amounting to HK$263 million, were made. As at 6 October 2021, the balance in the ATDL account stood at about HK$7.44 million.

34.  Apart from giving financial aid to protestors and injured persons locally, the Fund also granted subsidies to local and foreign organizations which it identified as sharing the same political objectives. For example:

(1)  In August 2019, the Fund agreed to give HK$218,690 and HK$28,300 to CHRF for equipment used in public processions.[54]

(2)  In October 2019, December 2019 and March 2020 respectively the Fund granted HK$500,000, HK$400,000, and HK$230,000 to Judicial Reform Foundation of Taiwan.[55]

(3)  New Hong Kong Cultural Club in Calgary was granted $200,000 in December 2019.[56]

B4.  Dissolution

35.  On 18 August 2021, A1 to A3 and A5 held a press conference in their capacity as trustees, announcing the dissolution of the Fund.[57]  They explained to the public how the Fund would stop operating in an orderly manner and stated that the secretariat would be dissolved on 31 October 2021, which would also mark “the last day” for the Fund. They also reiterated their beliefs in establishing the Fund and expressed regret that it was forced to cease operations without achieving its aims. On 18 November 2021, the Fund announced that its secretariat had been formally disbanded on 31 October 2021.[58]

B5.  No application for registration, etc

36.  At all material times, the Fund had not been registered as a limited company pursuant to the Companies Ordinance (Cap 622) (or its predecessor the Companies Ordinance (Cap 32)), or the Business Registration Ordinance (Cap 310) (“BRO”); or recognized by the Inland Revenue Department as a charitable institution or trust exempted from tax pursuant to section 88 of the Inland Revenue Ordinance (Cap 112) (“IO”). It was not established for the purpose of participating in a retirement scheme approved under section 87A of the IO. It had never applied for registration or exemption from registration pursuant to the SO.

C.  The SO

37.  A proper consideration of the Issues entails a closer look of the SO, in particular, the registration scheme.

C1.  An outline of its history

38.  The SO has a very long history of over 100 years, which for present purposes may be divided into three phases with reference to its genesis and important changes in its evolution: (1) 1911 to 1949; (2) post‑1949 to 1997; and (3) post‑1997. In the narrative below, we will highlight the more salient points pertaining to the discussion of the Issues.

C1.1  1911 to 1949

39.  This phase saw the very first enactment of the SO in 1911 (“the 1911 SO”[59]), its repeal by the 1920 Ordinance (“the 1920 SO”[60]), and its own repeal in turn by the 1949 Ordinance (“the 1949 SO”).

40.  The 1911 SO replaced its predecessor, the Triad and Unlawful Societies Ordinance (“the 1887 Ordinance”),[61] which had the narrow aim of suppressing the triad and other unlawful societies and punishing their members. It extended the law to effectual control of clubs and societies by pre-emptive regulation, in response to the increasing needs of law and order arising from the changes in social circumstances. As emphasised by the Solicitor General in moving the first reading of the bill, “it is necessary to include all clubs and societies, but in practice a very large number will be permanently exempted from registration.”[62]

41.  Though enacted over a century ago, the 1911 SO contained key provisions which had become a prototypical example of the statutory regime to be found in later versions:

(1)  The term “society” was given an expansive definition to include “any club, company, partnership or association of 10 or more persons, whatever its nature or object”, with certain specified exceptions.[63] The Schedule to the Ordinance set out a list of societies exempted from registration, including social clubs, religious or charitable bodies, trade clubs and societies and merchants’ associations. These provisions in combination gave effect to the legislative intent of subjecting all forms of societies to the statutory regulation regime, unless excepted or exempted.

(2)  Making the regime effective was the requirement for a society to apply for registration or exemption. Every society not registered or exempted was deemed to be an unlawful society resulting in criminal liabilities.[64]  It provided a strong incentive to societies to apply for registration or exemption, thus subjecting them to the regulation intended by the Ordinance.

(3)  The Governor-in-Council had wide powers to order any society to be permitted to be registered; any society to be exempted from registration, and any exempted society to be permitted to be registered.[65]  In particular, the Governor-in-Council might refuse registration if the society was likely to be used for unlawful purposes or for purposes incompatible with the peace or good order of Hong Kong or its actions and proceedings were calculated to excite tumult or disorder in China or to excite persons to crime in China.[66]  This gave effect to the legislative intent of regulating societies for maintenance of peace and order locally; and prevention of societies from being run or used to cause social disorder or disturbance in Mainland China.

(4)  The Registrar of Societies, established for the first time as the controlling authority, should publish in the Gazette annually a list of all existing societies registered or exempted from registration.[67] If he believed that any society had ceased to exist, he might publish a corresponding notice in the Gazette.[68]  These regular updates gave transparency to the regulation regime.

(5)  To augment the statutory regime, the Registrar of Societies might order registered and exempted societies to provide information.[69] The president, secretary and all members of committee of the society had personal obligations to do so, failing which criminal consequences would follow.[70]  This gave effect to the legislative intent of giving the Government full particulars about the societies in order to suppress them where necessary.[71]

(6)  Statutory presumptions were created regarding the proof of the existence of societies to which the Ordinance applied and proof of membership and managing of a society.[72]

(7)  Triad societies were treated on their own. It was declared an unlawful society, subject to the full force of all criminal sanctions under the Ordinance.[73]

42.  However, the Government after less than a decade concluded that the 1911 SO had not accomplished the objects it was expected to accomplish when it was passed and it had included too many societies that required no governmental regulation whatever.[74] It was thus repealed by the 1920 SO, which was largely based on the 1887 Ordinance.

43.  Under the 1920 SO, triad societies and all societies which had unlawful purposes or purposes incompatible with the peace and good order of Hong Kong were declared unlawful.[75] The Governor‑in‑Council had the absolute discretion to declare a society to be unlawful which in his opinion had unlawful purposes or purposes incompatible with the peace and good order of Hong Kong; was being used or was likely to be used for unlawful purposes or purposes incompatible with the peace and good order of Hong Kong; or was by reason of its actions or proceedings calculated to excite tumult or disorder in China or to excite persons to crime in China.[76]  Every society so declared to unlawful was deemed to be an unlawful society as from the publication in the Gazette of the order in council declaring it to be unlawful.[77]  Criminal liabilities contained in the 1920 SO would then follow.

44.  While the 1920 SO replaced the registration regime in the 1911 SO with a simpler system, the legislative aim remained unchanged. The law must effectively maintain the peace and order of Hong Kong and to prevent societies from being used to cause social disorder in Mainland China.

45.  In 1949, the threats to law and order in Hong Kong became serious again, especially because of outside influence, and the 1920 SO  was considered inadequate to meet the security challenges.[78]  During the legislative process, the Government emphasised that “at the present time the maintenance of law and order in the Colony would be assisted by the existence of record of all societies in the Colony and a knowledge of their objects and by enhanced powers of control of societies.”[79]  The 1920 SO, a departure from the 1911 SO, was repealed by the 1949 SO, which reverted the law back to substantially what it was under the 1911 SO. Several points in the 1949 SO are worth‑mentioning:

(1)  The definition of “society” reverted back to the old formula with some slight modification, including “any club, company, partnership, or association of ten or more persons, whatever its nature or object” but did not include those listed specifically.

(2)  The term “office-bearer” of a society was defined for the first time to mean “any person who is the president, or vice president, or secretary or treasurer of such society, or who is a member of the committee or governing body thereof, or who holds in such society any office or position analogous to any of those mentioned above”.[80]

(3)  The 1949 SO gave effect to the legislative intent of addressing threats to law and order imposed by outside influence by empowering the Registrar of Societies to refuse registration of a society if it was affiliated or connected with any organisation or group of a political nature established outside Hong Kong.[81]

(4)  The Registrar of Societies might also refuse registration of a local society if he was satisfied that it was likely to be used for unlawful purposes or any purpose prejudicial to or incompatible with peace, welfare or good order of Hong Kong.[82]

(5)  The presumption that if it was proved that a club, company, partnership or association was in existence, it was deemed to be a society within the meaning of the SO, unless the contrary was proved, was restored.[83]

(6)  Section 26 contained a “sunset” clause, stipulating that the Ordinance shall continue in force until 31 December 1950, provided that it shall be lawful for the Legislative Council by resolution to extend its duration for not more than one year at a time. Such “sunset” clause was also found in section 42 of the 1964 SO.

C1.2  Post-1949 to 1997

46.  Evidently, the 1949 SO had since its enactment served the legislative intent of maintaining law and order well. In moving the first reading of the bill for amending the SO in 1961, the Attorney General remarked that it had proved its worth in combating the activities of undesirable and subversive elements and in particular, triad societies.[84] By the amendment, the definition of “society” was trimmed to its core with the exceptions set out in the Schedule instead of the body of the definition provision.[85]  The definition read:

“‘society’ means any club, company, partnership or association of persons, whatever the nature or objects, to which the provisions of this Ordinance apply”.

The Schedule then listed out eight categories of persons to which the Ordinance did not apply. It might be amended by the Governor‑in‑Council from time to time under section 2(3). As explained by the Attorney General in moving the first reading of the bill, the changes were intended to provide a greater measure of control over the activities of societies and their office-bearers.[86]

47.  In 1970, the “sunset” clause was repealed.

48.  In 1972, the SO was for the first time considered by the Full Court in Yim Wai Tsang v Lee Yuk Har [1973] HKLR 1. The issue there was whether a Chinese money loan association, also known as hwei, was a society within the meaning of the SO. The Full Court (by a majority – Huggins and Leonard JJ, and McMullin J dissenting) held that the SO was drafted in such a way that it applied to all clubs, companies, partnerships or associations of persons unless they were “persons” expressly excluded from its application by the Schedule. The Chinese money loan association was a society and since it had not been registered, it was an unlawful society, rendering the plaintiff’s claim against the defendant under the rules of the association void for illegality. The following points made by the majority in their judgments are pertinent:

(1)  The legislative intent was that the SO applied to all clubs, companies, partnerships and associations of persons which were not listed in the Schedule. In other words, the SO clearly aimed to cast the net of “society” very widely: per Huggins J at pp.6, 13 and per Leonard J at p.20.

(2)  It was neither necessary nor appropriate to lay down a decisive test as to whether an association existed, but there were sundry indications which might be looked for including the existence of a formal constitution and rules, exclusive membership, appointment of officers, the holding of meetings, the payment of a subscription to the combined body and maintenance of premises by the combined body: per Huggins J at p.10 and per Leonard J at pp.20-21. The basic difference between an “association” and a group of “un‑associated” persons was that the members of the former had mutual rights and obligations other than those common to all citizens and the latter did not. Even members of a family or personal friends might associate, even regularly, and yet did not require registration: per Huggins J, ibid. Further, according to the dictionary meaning of “association”, the vital elements were a combination and a common purpose or a common cause: per Huggins J at pp.6-7.

(3)  The SO did not have a provision to say to what “persons” its provisions applied. The presumption (now contained in section 27[87]) was thus necessary. It presumed that a club, company, partnership or association of persons, if proved to be in existence, was a society within the meaning of the SO, unless the contrary was proved: per Huggins J at pp.11-12.

49.  McMullin J, in his dissenting judgment, had this to say at pp.27-28:

“I do not believe that it was intended that every conceivable type of grouping was to be caught by the Ordinance and that thereafter it was to be left to the members of such groups to seek exemption. I do not therefore agree that the only method of proving, under section 27, that a society is not within the Ordinance is to show that it has been expressly exempted. I think that this is one of those comparatively rare instances in which the legislature might be said to have left something like an intentional vagueness in a definition, confiding the practical result to the common sense of the public backed up by the ultimate arbitration of the courts. If it had been intended that the Ordinance was to apply to every kind of association other than those expressly exempted from its provisions, or from any of them, nothing would have been easier than to have said so plainly. The fact that it has pointedly refrained from doing so by this manner of defining the key word leads me to conclude that the draftsman was taking his instructions precisely as far as they went and was providing, what is perhaps not often found in interpretation provisions in any kind of legislation, an implicit zone of uncertainty, not an area of indecision so much as an area for decision.

In every modern state of any sophistication, one will find associative patterns existing between individuals which are definite enough to make it impossible to refuse to them the name of association but too fluid or private or temporary or negligible in their social consequences or of such small public concern in their nature and objects for it to be either sensible or practicable to subject them to elaborate controls or to saddle them with such onerous necessities as the need to submit, for example, an application for registration in the form which is to be found in the schedule to the Societies’ Rules. It is a small point, but it is indicative. To my mind the draftsman framed his definition of ‘society’ in the curious way he did because of the need to exempt from the provisions of the Ordinance, such associations as the legislature cannot have had within its purview at all in providing a framework of control upon the right of association in geneal.”

50.  After going through various indicia at pp.29-34, McMullin J concluded that the hwei was not a society within the meaning of the SO, including the non-conclusive but weighty view, which he shared, that hwei were not associations within the meaning of the SO because its purpose was to regulate group activities and to curb those which were prejudicial to the security of the community.

51.  The SO next came before the court for consideration in 1984. In Ng Pak Man v Fung Ming Kai [1985] 2 HKC 656, the plaintiffs, the defendants and some third parties applied to the Transport Department for a franchise to operate certain routes of public light buses. When disputes arose, litigation ensued. Deputy Judge Leathlean held that the instant association, being unregistered, was an unlawful society and for that reason, dismissed the action. He observed at p.660D-F that Yim Wai Tsang had been adversely criticised and expressed the view that a review of the SO had been long overdue in the context of present-day Hong Kong. The plaintiffs’ appeal was dismissed by the Court of Appeal in CACV 69/1984, unreported, 23 August 1984. McMullin VP at p.6 referred to Yim Wai Tsang and observed that the Full Court was compelled to consider the distinctly unsatisfactory manner in which the legislature had defined “society” in the SO and that each member drew attention to an apparently circularity in the definition; and that in resolving the difficulty, he and Huggins VP had resorted to the presumption in section 27. He confessed that without section 27, he would find that the intention of the legislature “inscrutable”.

52.  Returning to the legislative process, the Schedule was amended in 1988 to remedy an apparent oversight that partnerships of solicitors, accountants and others consisting of more than 20 persons had not been exempted under paragraph 6 of the Schedule. The need to cover all societies for maintenance of law and order was stressed again by the Attorney General in the second reading of the bill:[88]

“As members are no doubt aware the Societies Ordinance is intended to prohibit triad societies and other groups which threaten the peace, welfare or good order of Hong Kong. To this end, all clubs, companies, partnerships and other associations are required to apply for registration or for exemption from registration under the Ordinance unless they are specifically exempted from that requirement under the schedule to the Ordinance.”

53.  The most significant changes introduced at the second phase were the replacement of the registration by a notification and the removal of presumptions on existence of societies in 1992. Those amendments were necessary because of the BOR introduced earlier in the same year. The registration regime was abolished and replaced by a notification regime, which provided that within 1 month after a local society was or deemed to be established, the local society should notify the Societies Officer in writing with the particulars stipulated. Failure to do so would result in criminal liability against every office-bearer.[89]  Finally, the presumptions including the one regarding the existence of societies[90] were repealed.

54.  The Secretary for Security (“S for S”) explained in the second reading of the bill thus:[91]

“The Bill seeks to replace the societies registration systems provided for in the Ordinance by a notification system.

As in any civilized society we wish to preserve the right of individuals to freedom of association. But we also need to protect our citizens from criminal, and in particular triad activities and to acknowledge the Government’s responsibilities for security, public safety and public order as permitted under Article 18 of the [BOR]. Thus we propose to retain limited regulations of bodies and associations.

The Bill requires all societies and associations which are not otherwise approved or regulated to notify the Commissioner of Police of their establishment not later than 14 days after formation. Failure to notify will be an offence. Societies which do not comply with the notification requirement will not, however, be regarded as unlawful automatically. We are confident that this arrangement will be compatible with the [BOR].

The present Ordinance empowers the Commissioner of Police to refuse to register a society on a number of specified grounds, including where a society is connected with an overseas political organization. The Bill proposes to substitute this by a provision whereby [the S for S] may prohibit the operations of a society if he considers it necessary in the interests of security, public safety and public order. This requirement is necessary to deal with criminal and other undesirable societies whose operations are prejudicial to the well-being of Hong Kong. It is, for example, established policy that we do not want Hong Kong to be used by outsiders for their political battles against China. At the same time, we would like to reaffirm that Hong Kong people have freedom of speech and that as long as they remain within the law, we cannot and will not take action against them. These policies will remain unchanged.

The Bill also seeks to amend certain presumptions in the existing Ordinance regarding existence, membership, and management of societies by restricting their application to unlawful societies only. We believe this would be consistent with the [BOR] and yet enable the police to continue with their effective fight against triads.”

In short, the repeal of the registration regime and the presumptions on existence was considered necessary to make the SO compatible with the BOR, the introduction of which represented a significant constitutional development in Hong Kong.

C1.3  Post-1997

55.  On 23 February 1997, the Standing Committee of the National People’s Congress made a decision on “Treatment of the Laws Previously in Force in Hong Kong in accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” in accordance with BL 160[92] (“the Decision”). Among others, it stated that the major amendments introduced to the SO since 17 July 1992 contravened the Basic Law and shall not be adopted as the laws of the HKSAR.[93]  As a result, amendments to the SO were introduced in 1997.[94]

56.  In its report on the amending bill, the Bills Committee noted at §8:

“The Bills Committee has ascertained from the Chief Executive’s Office that the underlying principle as well as the actual provisions of the amending Bill in respect of the registration system are in compliance with the decision of the NPC, the provisions of the Basic Law and the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong, have sought to strike a right balance between civil liberties and social order, and will enable the authority to prevent the establishment of triad societies. It will also enable the public who wish to form a society to undergo an academic exercise with regard to the aims and objectives of such a society in the course of registration, and would cause little inconvenience to the public.”

It went to state at §10:

“After considering the views of these three members and those of the Chief Executive’s Office, as well as considering the relevant provisions in the Bill, the majority of members of the Bills Committee expresses agreement with and support to the registration system as provided for in the Bill, on the grounds that it would ensure social order, would minimize confusion, would be in accordance with the decision of the NPC, and would not cause unnecessary inconvenience to the public.”

57.  By the amendments, the registration scheme was reinstated for all kinds of societies with exceptions if the society is established solely for religious, charitable, social or recreational purposes or as a rural committee or a federation or other association of rural committees.[95]  However, the presumptions on existence of societies, membership and management of societies were not reinstated.

58.  It bears emphasis that the amendments also empowered the executive to deal with a society on the grounds of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others, or, where the society is a political body, its connection with a foreign political organization or a political organization of Taiwan.[96]  The term “national security” is defined to mean “the safeguarding of the territorial integrity and the independence of the People’s Republic of China”. The expressions “public safety” and “the protection of the rights and freedoms of others” are to be interpreted in the same manner as under the ICCPR as applied to Hong Kong.[97] As will be elaborated below, the legislative intent behind these amendments is to ensure that the executive’s treatments of a society align with the restrictions permitted under BOR 18(2).

59.  The SO had undergone numerous format changes and amendments since 1997. There were two substantial amendments. The first one was introduced in 2008 whereby the references to “ordre public” were removed, presumably to address the observations by the Court of Final Appeal in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, at [75] ‑ [78], that the term used at a statutory level, as opposed to the constitutional level, to ground the exercise of executive discretion in restricting a fundamental right did not satisfy the “prescribed by law” requirement and was hence unconstitutional. The second one was made in 2024 which repealed the definition of “national security” in section 2(4).[98]

C1.4  A short conclusion

60.  A short conclusion may be drawn from the long history of the SO. Its introduction and subsequent iterations had all along been guided by the general imperative to address prevailing and emerging security concerns arising from the contemporaneous and changing social circumstances, and since the introduction of the BOR and the establishment of the HKSAR, to also keep pace with the constitutional developments, including the protection of the fundamental right to freedom of association, recognising that the registration scheme is a restriction.

C2.  Statutory regime

61.  This brings us to the statutory regime of the SO laid down in 1997, which has since remained in force until today.

C2.1  Application to all societies

62.  The regime applies to every society, which is defined in section 2(1) to mean:

“any club, company, partnership or association of persons, whatever the nature or objects, to which the provisions of this Ordinance apply”.

There are various specific provisions, including relevantly, section 5(1), which specifically apply to a “local society”, defined as “any society organized and established in Hong Kong or having its headquarters or chief place of business in Hong Kong, and includes any society deemed to be established in Hong Kong by virtue of section 2(2B)[99] or 4[100]”.

63.  Section 2(2) provides an exception by stipulating that “[the] provisions of this Ordinance shall not apply to any person listed in the Schedule”. The Schedule lists out 14 categories of persons to which the SO does not apply.[101] Broadly, the persons listed in the Schedule are (1) companies already registered under or governed by other Ordinances;[102] (2) other bodies already registered under, governed or incorporated by other Ordinances, such as co-operative society, trade union, Chinese temple, credit union, building management corporation, operator of and participants in any chit fund;[103] (3) educational association or incorporated management committee;[104] (4) association of owners or occupiers approved by the Secretary for Home and Youth Affairs;[105] (5) recreational or training association approved by the Director of Social Welfare;[106] and (6) an unincorporated trust of a public character established solely for charitable purposes; or for engaging in a retirement scheme approved under section 87A of the IO (“Item 16”).[107]  The Schedule may be amended by the Chief Executive in Council: section 2(3). Given such power, the Chief Executive in Council may vary the coverage of the statutory regime as the circumstances so warrant.

64.  The Schedule has to be read together with section 2(2B). It provides that the SO applies to a society to which it otherwise would not apply under the Schedule by its being registered under the BRO if the Societies Officer[108] gives written notice to the society that he is of the opinion that the society is not used solely for religious, charitable, social or recreational purposes. Further, the society is taken to be established in Hong Kong on the date on which the notice is given.

65.  Section 2(1) of the SO defines “office-bearer” of a society to be “any person who is the president, or vice-president, or secretary or treasurer of such society … or who is a member of the committee or governing body of such society … or who holds in such society ... any office or position analogous to any of those mentioned above”. An office-bearer of the society assumes various obligations on behalf of the society and when he fails to perform them, he may be exposed to criminal liabilities.

C2.2  The registration scheme

66.  The registration scheme is contained in sections 5 to 5F. Broadly, it involves three key aspects, namely, (1) application by a local society for registration or exemption from registration (section 5); (2) decision by the Societies Officer (sections 5A and 5B); and (3) cancellation of registration or exemption (sections 5D and 5E), augmented by criminal sanctions on the office-bearers for non-compliance (sections 5C and 5F). They are elaborated below.

67.  It is incumbent on every local society to make the application for registration or exemption from registration within one month of its establishment under section 5 (1) and (2) separately thus:

“5. Application for registration or exemption from registration

(1) A local society shall apply in the specified form[109] to the Societies Officer for registration or exemption from registration within 1 month of its establishment or deemed establishment under section 2(2B) or 4. The application must be signed by 3 office-bearers and include details of—

(a) the name of the society;

(b) the objects of the society;

(c) the particulars of the office-bearers of the society; and

(d) the address of the principal place of business of the society and of every place or premises owned or occupied by the society.

(2) A local society shall apply in the specified form to the Societies Officer for registration or exemption from registration of a branch of the society within 1 month of the branch’s establishment or deemed establishment under section 2(2B) or 4. The application must be signed by 3 office-bearers of the society and include details of—

(a) the name of the society;

(b) the name, if any, of the branch and its objects, if they are different from the objects of the society;

(c) the particulars of the office-bearers of the branch; and

(d) the address of the principal place of business of the branch.”

Self-evidently, the particulars enable the Societies Officer to deal with the application as appropriate in accordance with the provision under section 5A.

68.  Under section 5A, the Societies Officer may register a society (sub-section (1)); or exempt a society from registration if he is satisfied that the society is established solely for religious, charitable, social or recreational purposes or as a rural committee or a federation or other association of rural committees (sub-section (2)). Sub-sections (1) and (2) are subject to sub‑section (3), empowering the Societies Officer to refuse the application for registration or exemption from registration by providing:

“(3) The Societies Officer may, after consultation with [the S for S], refuse to register or to exempt from registration a society or a branch—

(a) if he reasonably believes that the refusal is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others (‘Public Interests Grounds’); or

(b) if the society or the branch is a political body that has a connection with a political organization of an external place (‘Political Connection Grounds’).”

As noted, the expressions “public safety” and “the protection of rights and freedoms of others” are interpreted in the same way as under the ICCPR as applied to Hong Kong: section 2(4).

69.  In exercising his power under section 5A(3), the Societies Officer shall follow the provisions on procedural fairness as stipulated. He shall not refuse an application for registration or exemption from registration without first giving the society an opportunity to be heard or to make written representations unless he believes that in the circumstances of the case it would not be practicable to do so: sub-section (4). Moreover, he shall also give written reasons for his refusal to register or to exempt from registration to the society within 14 days of the decision: sub‑section (5).

70.  A society may operate or continue to operate until it is notified that the Societies Officer has refused its application for registration or exemption from registration: section 5A(6).

71.  Under section 5B, if aggrieved by the decision of the Societies Officer to refuse registration or exemption from registration, a society, an office-bearer or a member may appeal to the Chief Executive in Council within 30 days of the date of the notice of decision. The Chief Executive in Council may confirm, vary or reverse the decision. Pending the determination by the Chief Executive in Council, the operation of the decision appealed against is suspended.

72.  Section 5D(1) empowers the Societies Officer to cancel the registration or exemption from registration of a society or a branch, after consultation with the S for S, on the Public Interests Grounds or the Political Connection Grounds. Section 5D(2) and (3) respectively require the Societies Officer to give the society an opportunity to be heard before cancelling the registration or exemption; and to give the society written reasons for his decision within 14 days of the decision. Section 5E deals with appeals against cancellation to the Chief Executive in Council in terms similar to section 5B.

73.  We pause to emphasize two points:

(1)  Applying article 22 of the ICCPR, BOR 18(2) stipulates that there shall be no restrictions on the right to freedom of association unless they are in the interests of, among others, national security or public safety, public order or the protection of the rights and freedoms of others. The Societies Officer’s decisions, whether under sections 5A(3) or 5D(1), with cessation of operation of the society concerned as a potential consequence, are restrictions on the right to freedom of association. The Public Interests Grounds, together with the requirement in section 2(4) that the expressions “public safety” and “the protection of rights and freedoms of others” are interpreted in the same way as under the ICCPR, seeks to ensure that the Societies Officer’s decisions do not fall foul with BOR 18(2), and are hence constitutionally compliant.

(2)  The Political Connection Grounds seek to prevents political influence on societies from foreign countries or Taiwan and the potential risks to peace and order in Hong Kong arising from such influence.

74.  Turning to criminal sanctions, section 5C(1) imposes criminal liability on the office-bearers for failure to comply with section 5(1) or (2) by providing:

“5C. Offences in relation to registration, etc.

(1) If a society fails to comply with section 5(1) or (2), every office-bearer or person professing or claiming to be an office-bearer commits an offence and is liable on summary conviction—

(a) for a first conviction for the offence in relation to a particular society, to a fine at level 3; and

(b) for a second or subsequent conviction for the offence in relation to the same society, to a fine at level 4 and to imprisonment for 3 months and in addition to a fine of $300 for each day during which the offence continues, commencing on the date of the first conviction.”

Section 5C(2) creates a statutory defence in these terms:

“(2) It is a defence to a charge under subsection (1) if the defendant establishes to the satisfaction of the court that he has exercised due diligence to ensure the society complied with section 5 and that the failure occurred for reasons beyond his control.”

It is in the interest of an office-bearer to avoid the criminal sanctions by taking out the application under section 5 on behalf of the society.

75.  Under section 5F(1), a society that is refused registration or exemption or has had its registration or exemption cancelled and the refusal or cancellation has not been appealed against within time or has been confirmed on appeal, shall cease its operation. If it does not, every office‑bearer will assume criminal liability under sub-section (2), subject to the defence in sub-section (3) in terms similar to section 5C(2).

C2.3  Rural committees

76.  Section 6 enables the Secretary for Home and Youth Affairs to deal with rural committees, which does not concern us in these proceedings.

C2.4  Prohibiting societies from operations

77.  Section 8 empowers the Societies Officer under sub‑section (1) to recommend to the S for S to make an order prohibiting the operation or continued operation of a society on the Public Interests Grounds or the Political Connection Grounds, subject to the procedural safeguards stipulated which are similar to those contained in sections 5D(2) and (3). Upon such recommendation, the S for S may by order published in the Gazette prohibit the operations or continued operations of the society: sub‑section (2). Again, the Public Interests Grounds and the Political Connection Grounds seek to achieve the same purposes mentioned at [73]. A society in respect of which a section 8 order is in force, becomes an unlawful society under section 18(1), rendering all the ensuing provisions governing unlawful societies, including criminal sanctions, applicable.

78.  Upon the publication of the order prohibiting the operation or continued operations of a society in the Gazette, the Societies Officer shall remove it from the list of societies kept under section 11: section 14A(3).

79.  Section 25(1) empowers the S for S to make an order that an office-bearer of a prohibited society under section 8 shall not become an office‑bearer of any other society for 5 years without the consent of the Societies Officer. An aggrieved person may appeal to the Chief Executive in Council under sub-section (3). A person who contravenes an order under sub-section (1) commits an offence and is liable on conviction to the penalties prescribed.

C2.5  Names and particulars

80.  A society must comply with restrictions on names and changes of particulars as stipulated: sections 9 and 10 respectively.

C2.6  List of societies

81.  The Societies Officer keeps a list of all societies which have been registered or exempted from registration under section 11. To update the list, he shall remove a society from the list when it has ceased to exist or dissolved, when it becomes a person listed in the Schedule, or when an order prohibiting its operation or continued operation has been gazetted, under sections 13, 14 and 14A, as the case may be.

82.  In terms of transparency, the public may under section 12(1) inspect the list and further request the Societies Officer to provide for information and documents of a society received by him under section 5(1) and (2), and may under section 12(2) require a copy of the document to be certified by the Societies Officer to be a true copy.

C2.7  Furnishing information by societies

83.  Under section 15, the Societies Officer may require a society to provide such information as he may reasonably require to facilitate his performance of his functions under the SO, including its income, the source of the income and its expenditure. The obligations to provide such information falls on every office-bearer under section 16.

C2.8  Unlawful and triad societies

84.  The SO deals with unlawful and triad societies from section 18 onwards. Triad societies are regarded as unlawful societies: section 18(1). Every society which uses any triad ritual or which adopts or makes use of any triad title or nomenclature is deemed to be a triad society: section 18(3). To combat unlawful societies, there is a host of provisions relating to penalties on office-bearers, etc (section 19); membership and penalties (section 20); persons allowing unlawful society on premises and penalties (section 21); penalties for inciting, etc, a person to become a member of an unlawful society (section 22); penalty for procuring subscription or aid for an unlawful society (section 23); and liability of person convicted of an offence under section 19 or 20 (section 24). Sections 26A to 26N deal with various matters concerning renunciation of triad membership. Section 28 creates various presumptions of existence of triad society, etc.

C2.9  Consent to prosecution

85.  Finally, consent to prosecution by the Secretary for Justice is required under section 35 for all the statutory offences except those in connection with triad and unlawful societies, thus:

“Except in the case of persons charged under the provisions of sections 19, 20, 24 and 25 and of persons arrested under the provisions of section 33, no person shall be charged with an offence under this Ordinance or any rule made thereunder unless the prior consent in writing of the Secretary for Justice has been obtained.”

86.  Having set out the statutory context of the SO, we now come to Issue 1.

D.  Issue 1 – proper construction of “association of persons”

D1.  The Principal Magistrate’s construction

87.  After briefly going through the legislative history of the SO[110] and applying the contextual and purposive approach of statutory construction as propounded by the Court of Final Appeal in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, the Principal Magistrate held that:[111]

(1)  The SO aims at safeguarding national security or public safety, public order and to protect the rights and freedoms of others.

(2)  In light of the context of the SO, the term “society” should be taken in the widest sense. An overly restrictive interpretation would fail to achieve the objects of the SO.

(3)  However, if the society does not involve the public, it is not an association to which the SO applies. People organizing themselves together (for instance, gatherings or family or friends) does not necessarily become an “association/ organization” within the meaning of the SO. Such gatherings do not constitute an “association/organization” which the SO seeks to regulate.

(4)  A2’s argument that there is a difference in meaning between “association” in English and “組織” in Chinese for the definition of “society” is rejected. Applying the principle of ejusdem generis, both terms refer to a group similar to an unincorporated grouping but with a degree of organization, similar to the interpretation of “association” by the Full Court in Yim Wai Tsang v Lee Yuk Har [1973] HKLR 1. Although the two terms are grammatically different, they share the same substantive meaning.

(5)  The other groups/bodies mentioned in the definition of “society”, that is, “clubs, companies or partnerships” have the common features of being established for particular objects, having common purposes/aims/wishes, continuing to operate in accordance with their objects until they can no longer achieve their goals, and not being established provisionally for a single incident/contract.

(6)  In relation to the defence’s argument that there is uncertainty arising from the fact that two persons can form an association of persons but the section 5 requires an application for exemption to be signed by three office-bearers, the SO no longer restricts societies to operate within a certain scale, and today only requires three office-bearers to sign the application form.

88.  Having regard to the above, the Principal Magistrate held that:[112]

“… ‘associations to which the SO applies’ refer to groups or bodies which are established for particular objects and goals, as well as groups and bodies which are: formed by mutual collaboration in order to achieve the particular purposes; continuing to operate in accordance with the objects; involving the public; and/or having connections with political organizations. This may seem a broad coverage, but the SO provides a Schedule setting out a number of bodies to which the SO does not apply. Furthermore, societies established solely for religious, charitable, social or recreational purposes, or as rural committees or federations or other associations of rural committees, can apply for exemption from registration. 組織 registered under the [BRO] are covered by the Schedule and they are societies to which the SO does not apply.”

89.  Turning to Yim Wai Tsang, the Principal Magistrate observed that:[113]

(1)  The abolition of the presumption in section 27 in 1992 only affects the burden of proof and not the Full Court’s analysis and discussion of the term “association”. After the abolition, the burden rests entirely on the prosecution to prove that the society in question, such as the Fund in the present case, is one to which the SO applies.

(2)  In respect of the arguments by A1 and A4 that “association” ought to be similar to an “unincorporated association”, the key elements of the latter such as objects and purposes, identifiable exclusive membership, defined and ascertained members, mutual rights and obligations between its members, formal constitution and rules, appointment or election of officers, are no different from the indicia identified in Yim Wai Tsang. However, those features are not an inflexible checklist but rather indicia to be considered in the overall substantive arrangements of the association in question.

(3)  In short, the approach in Yim Wai Tsang should be adopted, that is, one should make an overall consideration of different indicia with the premises being that the members must have mutual rights and obligations.

90.  In relation to A5’s argument based on the assertion that the Fund was a trust, the Principal Magistrate held that:[114]

“80. As mentioned above, the Court considers that the ‘612 Fund’ is an association/organisation organised and established by multiple people operating as a fund. The Court does not consider that the SO and ‘trust law’ are mutually inconsistent with one another. Pursuant to item 16 of the Schedule to the SO, an unincorporated trust of a public character, if established solely for charitable purposes, is not regulated under the SO. Clearly, the SO has already taken into account associations/organisations operating as a trust. The Court believes that unincorporated trusts of a public character, unless established solely for charitable purposes, are societies to which the SO applies.”

D2.  The parties’ stance

D2.1  The appellants’ positions

91.  Mr Robert Pang SC,[115] for A1 and A4, submits that not every “association of persons”, in the broadest sense of that word, is caught by the SO. Otherwise, it would lead to an inconvenient, unworkable, impracticable, anomalous, and even absurd result which the legislature had not intended to create. In light of the legislative history and purpose of the SO, the term “association of persons” should be construed as bearing a meaning akin to that of an “unincorporated association”, which is well‑established and widely recognized concept across the common law jurisdictions. In the context of the SO, for there to be an “association of persons”, there must exist a sufficiently clearly formulated core, that is, a number of fundamental and essential elements, including:

(1)  the society should have objects and purposes, a business address, and 3 office-bearers;

(2)  there must be identifiable exclusive membership, as well as defined and ascertained members;

(3)  there must be mutual rights and obligations among its members; the bond of union among them should be contractual;

(4)  there must be a constitution and rules which provide for, at the very least, (a) qualifications for membership of the society and the terms of admission of members; (b) control of the combined body and its members; (c) the mutual rights and obligations among the members; and

(5)  there should be appointment or election of officers and holding of meetings.

92.  Mr Pang further complains that the Principal Magistrate erred in arriving at her construction because:

(1)  Her finding that “society” should be understood in the broadest terms ignores well established principles of statutory construction including the presumptions against doubtful penalization; absurdity; inconvenient, unworkable, impracticable, anomalous or illogical result; and avoiding a disproportionate counter-mischief. Her approach is also inconsistent with the requirement when restriction on freedom of association is engaged.

(2)  She wrongly applied the ejusdem generis rule because the genus exemplified by the expression of “club, company, partnership” is delineated not simply by the characteristics identified by her but by the existence of the core characteristics enunciated in the preceding paragraph.

(3)  Her reliance on the majority judgment in Yim Wai Tsang is misplaced because that case did not construe “society” in the criminal context. Moreover, the majority heavily relied on the presumption on the existence of a society in the then section 27, which had been abolished since 1992. She further erred in holding that the abolition of that presumption only affected the burden of proof instead of being relevant to the construction exercise.

(4)  She accorded excessive consideration to the list of exempted persons in the Schedule. In particular, she placed undue emphasis on Item 16 of the Schedule. The express exclusion of a specific species of trust does not necessarily mean that all trusts within that species are therefore societies for the purpose of the SO.

93.  Mr Ambrose Ho, SC,[116] for A2, criticizes the Principal Magistrate for failing to give due consideration to the original English text of the SO but instead relying exclusively on the Chinese text which came into existence only after 1996, contrary to HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191, per Cheung CJ at [58] ‑ [63]. By failing to appreciate the material differences between the original English expression “association of persons” and the Chinese text “一人以上的組織”, she wrongly concluded that they bear the same meaning.[117]

94.  Next, Mr Ho contends that the Principal Magistrate erred in her approach to statutory interpretation by:

(1)  inserting “public concern” to qualify the meaning of “association of persons”, and arbitrarily drawing an artificial distinction between the association of family and friends as opposed to other instances of “association” as “societies” to which the SO applies, thereby impermissibly exceeding the court’s role of interpretation and straying into legislation, contrary to Yung Chi Keung v Protection of Wages on Insolvency Board (2016) 19 HKCFAR 469; and

(2)  holding that the definition of “society” should be given the widest interpretation, although it is a restriction on the fundamental right to freedom of association.

95.  Moreover, Mr Ho submits that the Principal Magistrate erred in relying on Yim Wai Tsang because it is no longer good law after the subsequent legislative amendments to the SO, in particular the repeal in 1992 of the presumption as to existence in section 27, and the development of constitutional jurisprudence. He relies heavily on McMullin J’s remarks in Yim Wai Tsang, quoted at [49] above, and argues that as recognized by both Huggins and McMullin VPP, there is circularity in the definition of society.[118] It is supposed to define what society is to be included. However, it simply says it is a society “to which the provisions of this Ordinance apply”. The deeming provision under the old section 27 was necessary to indicate the meaning of the phrase “to which the provisions of this Ordinance apply”. With the repeal of section 27, the legislative intention as to the scope of the definition of society had become “inscrutable”, as observed by McMullin VP in Ng Pak Man (CA). There is nothing left to indicate the scope of that very broad, nebulous phrase of “association of persons”. The repeal also renders the so-called inclusionary rule, that is, the SO catches all societies if proved to be in existence unless expressly excepted, impossible as a matter of construction. Accordingly, without the presumption, Yim Wai Tsang is no longer an authority on the meaning of “association of persons”.

96.  Lastly, Mr Ho argues that the Principal Magistrate erred in ignoring the relevance of the law of trusts and in holding that Item 16 of the Schedule had the effect of including all unincorporated trusts as “societies” to which the SO applies unless they are solely for charitable purposes.

97.  Ms Gladys Li, SC,[119] for A3, and Mr Osmond Lam,[120] for A5 raise similar complaints against the Principal Magistrate’s construction of “association of persons” as Mr Pang and Mr Ho do, with variances in emphasis but not in substance. For this reason, we will not set out their contentions separately, save and except this point. Mr Lam submits that the term “association of persons” and “society” should be construed or remedially interpreted as “applicable only to local societies with sufficient degree of formality and organization (that are neither triad societies nor unlawful societies) which engage in activities that derive financial and/or other material benefits for all or part of its members”.

D2.2  The respondent’s position

98.  Mr Anthony Chau, Deputy Director of Public Prosecutions,[121] for the respondent, supports the Principal Magistrate’s construction. He submits that:

(1)  Applying the purposive and contextual approach to the terms “society” and “association of persons”, the SO has to be considered as a whole and regard has to be given to the natural and ordinary meaning of the terms together with the purpose of the SO to effectively supervise the operation of societies in Hong Kong; the wider context of the legislative history of the registration regime under the SO; the relevant case law, in particular Yim Wai Tsang and subsequent cases which applied it; and other relevant provisions including the Schedule as a clear indicator that those clubs, companies, partnerships or associations of persons which are similar in terms of nature and/or purposes but not covered by the Schedule, are intended by the legislature to be societies to which the SO applies.

(2)  The Principal Magistrate correctly applied the ejusdem generis rule.

(3)  There is no legal basis to support A1 and A4’s submission that an “association of persons” must require a sufficiently clearly formulated core comprising of a number of specified elements/conditions, contrary to Yim Wai Tsang. Likewise, A5’s construction which adds the prerequisite of engaging in activities which derive financial and/or material benefits for all or some of its members must be rejected as well.

D3.  General principles of statutory interpretation

99.  It is well established that the court applies a contextual and purposive approach to construction of legislation, including a penal statute. In brief:

(1)  The court construes the statutory language having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning.

(2)  This does not mean that the court has a free rein in the exercise. The court is to ascertain the intention of the legislature as expressed in the language actually used. It cannot give a provision a meaning which the statutory language, understood in the light of its context and purpose, cannot bear.

(3)  Context and purpose are considered when interpreting the words used from the start and not merely at some later stage when ambiguity may be thought to arise.

(4)  Context is to be taken in the widest sense and includes the other provisions of the statute and the existing state of the law.

(5)  The purpose of a statutory provision may be evident from the provision itself; or where the legislation in question implements the recommendations of a report such as one produced by the Law Reform Commission, the report; the explanatory memorandum of the bill; a statement made by the responsible official of the Government in the Legislative Council; or the legislative history of the statute.

See generally, HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, per Li CJ at [11] ‑ [14]; Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196, Ma CJ at [29]; Chan Ka Lam v The Country and Marine Parks Authority (2020) 23 HKCFAR 414, per Ma CJ and Cheung PJ  (as he then was) at [26] ‑ [27]; and HKSAR v Chan Chun Kit per Cheung CJ at [10] ‑ [11].

100.  As already observed, it is common ground that requiring a society to be registered under the SO is a restriction on the fundamental right to freedom of association with potential criminal consequences. A proper construction of “association of persons” defines the breadth of “society”, thus delineating the scope of the registration scheme and drawing the boundary on how far and extensive the restriction goes. In construing such a provision, the court is guided by the general principles that fundamental rights should not be interfered with except with clear authority (Bennion, Bailey and Norbury on Statutory Interpretation, 8^th Edition, sections 27.5 at p.855); and that restrictions on fundamental rights must be narrowly interpreted: HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, per Chan Acting CJ at [32]. It means that the court must adopt a construction which is clear and strives to avoid a construction which penalizes a person when the legislature’s intention to do so is doubtful: T v Commissioner of Police (2014) 17 HKCFAR 593, per Ma CJ at [196]. This reflects the general interpretation canon that the court must guard against giving a word too wide a construction than what is necessary to achieve the legislative intent: Ho Choi Wan v Hong Kong Housing Authority (2005) 8 HKCFAR 628, per Lord Millet NPJ at [109] ‑ [111].

101.  Further, as Mr Pang and Mr Chau agree, and rightly so, the ejusdem generis principle applies. Under this principle, when interpretating a statutory provision containing a list of specific items followed by more general items, the latter will not be interpreted in an overly broad or wide sense but will be confined to the same type or class of the former: see Bennion, Section 23.2, at pp.678 ‑ 679. Recently, in HKSAR v Chan Chun Kit, Cheung CJ at [14] observed:

“(1) The ejusdem generis rule is a general rule of construction. When it is applicable, it gives rise to a presumption. It is an aid to construction, and can be dis-applied by a contrary intention.

(2) The rule only operates when there is a common genus to which the items on the list belong. By definition, it has no application when there is only one item. When there is more than one item, it can only apply if a common element or genus can be identified.

(3) The application of the rule does not depend on any particular formulation of the words. Whilst, usually, it applies when specific items are followed by a general description, that is not necessary or essential. The use of the word ‘other’ in the residuary phrase is common, but not critical. What is essential is a list of items belonging to a common genus.

(4) The wording and sentence structure of the provision are nonetheless important in that the rule does not apply if there is no such list, or, where there is more than one list, the items in question belong to different, separate lists.”

102.  For present purposes, we would emphasize that:

(1)  For the ejusdem generis rule to apply, there must be a sufficient indication of a category that can be properly be described as a class or genus, even though not specified as such in the statute. Put very shortly, it is necessary to be able to formulate the genus; otherwise, the rule does not apply.

(2)  The nature of the genus is gathered by implication from the express words which suggest it. In addition to the immediately surrounding words, other parts of the context may give assistance in finding the genus.

(3)  The genus must be narrower than the general words it is said to regulate. Where a phrase beginning with particular items is followed by wider residuary words, the effect of the principle is to curtail the literal meaning of the residuary words so as to confine it to the genus identified.

See generally, Bennion, sections 23.3 ‑ 23.5, at pp.681 ‑ 685.

103.  Applying these principles, we now turn to the construction exercise at hand.

D4.  Construing the term

104.  We begin with the purposes of the SO.

105.  Throughout its long history and pursuant to the general legislative imperative as described at [60] above, the SO consistently serves the primary purpose of maintaining law and order in Hong Kong in the contemporaneous and ever-changing social circumstances firstly, by subjecting all societies to which it applies to regulation; and secondly by suppressing triad societies and any other unlawful society which has, since 1997, been limited to a society against which a section 8 order is in force.

106.  Further, since the introduction of the provisions in 1997 empowering the executive to refuse to register or exempt from registration a society; to cancel the registration or exemption from registration of a society; and to prohibit the operation or continued operation of a society on the Public Interests Grounds or the Political Connection Grounds, the SO also seeks to pursue two specific purposes of regulating societies in Hong Kong:

(1)  in relation to the Public Interests Grounds, to safeguard national security and public safety, public order, and the rights and freedoms of others, which are permissible restrictions of the right to freedom of association under BOR 18(2).

(2)  in relation to the Political Connection Grounds, to prevent influence from foreign political organizations or political organizations from Taiwan.

107.  All the above purposes are of utmost importance. A proper construction of “association of persons” must give full effect to them. It lends support to a wide construction of the term but, bearing in mind the potential restrictions on the right to freedom of association as explained at [100] above, the construction must not be wider than what is necessary for achieving the purposes. With respect to the Principal Magistrate, her view that “society” should be understood in the widest sense in order to safeguard national security, etc, seems to have ignored those principles of statutory interpretation for a provision which restricts fundamental rights, which support a narrower construction. Moreover, the construction must be clear enough to satisfy the “prescribed by law” requirement, which we will consider under Issue 2.

108.  We next come to the actual language used for the definition of “society”. To recap, a society means “any club, company, partnership or association of persons, whatever the nature or objects, to which the provisions of this Ordinance apply”. One obvious point may be noted immediately.

109.  The legislative intent underscoring the phrase “whatever the nature or objects” is clearly that irrespective of its nature or object, “any club, company, partnership or association of persons … to which the provisions of the Ordinance apply” is a society within the meaning of the statutory definition. It follows that the Principal Magistrate erred in inserting the words of “public concern”, “involvement with the public” and “connections with political organizations” to qualify the meaning of “association of persons”. Such qualification would also mean that the phrase “whatever the nature or objects” applies to a “club, company or partnership” only but not an “association of persons”. That is an inherent inconsistency which the legislature could not have intended. Mr Lam’s construction of the term “association of persons” and “society” suffers from the same difficulties and must be rejected.

110.  The key to construction is applying the ejusdem generis rule to the phrase “any club, company, partnership or association of persons”. The common features of a club, company and partnership may be identified thus:

(1)  A club is formed by a group of persons for a common purpose.[122]  The purpose may be social, educational, recreational, charitable, religious or even for profit making. Its affairs are governed by a constitution or by-laws, which, among other things, states its name, defines the rights and obligations of the members, sets out the decision-making mechanism, usually by meetings, deals with financial and other internal management matters, appoints officer(s) responsible for its administration. It operates from club premises for its members’ benefit. Subject to agreement, a club may continue to exist and operate despite any change in membership.

(2)  A company is an association of a number of people with some common objects.[123]  The objects are usually business or for profit making but may include other non-profit ones. It is a legal entity brought into existence by incorporation under statute. It is governed by its memorandum and articles of association, which set out in detail, among other things, its names, objects, shareholdings, meetings, directors and other officers and their responsibilities, shareholders’ rights and obligations. As a legal person, a company may hold properties and enter into contracts on its own. It has a place of business. It continues regardless of any change in shareholders.

(3)  A partnership is the relationship which subsists between persons carrying on a business in common with a view to profit.[124]  It is usually governed by a partnership agreement, which regulates the relations between the partners, providing for its name, duration of the partnership, the capital needed, financial and other managerial matters, duties and obligations of the partners, distribution of profits and sharing of loss, expulsion and dissolution. It has a place of business.

111.  The genus that may be derived from the most common characteristics shared by a “club, company and partnership” is an entity:

(1)  formed by a group of identified persons;

(2)  for stated common purposes, objects or interests;

(3)  ordinarily under a given name;

(4)  governed by a constitution or a set of rules binding on its members, which provides for matters essential to its operations, such as, membership, decision-making mechanism like holding of meetings, financial and other administrative affairs, appointment of personnel responsible for its management;

(5)  managed by the responsible personnel;

(6)  having a place of business, either as envisaged in its constitution or as a matter of fact; and

(7)  with members having mutual rights and obligations.

An entity which has the above characteristics necessarily has certain formalities, structure and substance. Members forming it must have also anticipated at the time that it will have some degree of permanence in its future operations, and so it does in reality. These factors are also relevant in determining if an entity is an “association of persons”.

112.  Applying the ejusdem generis rule, an entity must have the above characteristics to be an “association of persons” in order to sit congruously with a “club, company or partnership” in the same statutory definition.

113.  Other provisions of the SO clearly envisage that a society has a specific name,[125] stated objects,[126] identified office-bearers responsible for its management and affairs,[127] and a designated place of business.[128]  These provisions well support the above construction of “association of persons” when they are all read together as a coherent whole.

114.  With respect to the Principal Magistrate, her application of the ejusdem generis rule and analysis of the genus involved in a “club, company or partnership” seems to be incomplete. Her insertion of those qualifying words to “association of persons” is not supportable by any of the relevant interpretative considerations, quite apart from its inconsistency with the legislative intent of the phrase “whatever the nature or objects”.

115.  We are unable to accept Mr Pang’s submission that “association of persons” should be construed as bearing a meaning akin to an “unincorporated association” either. Had the legislature intended such a restrictive meaning, it could have easily used “unincorporated association” as opposed to the wider term of “association of persons”. Further, while an unincorporated association falls within the proper construction of an “association of persons”, it leaves out any other entity which possesses the requisite characteristics as an “association of persons”. That would defeat the legislative purposes of the SO which can be achieved only if all “associations of persons” are caught.

116.  It is convenient at this juncture to deal with the appellants’ criticisms directed against the Principal Magistrate’s reliance on Yim Wai Tsang. To do that, it is important to understand how the majority of the Full Court approached the matter. Upon a closer analysis and leaving aside the Court’s observations about the difficulties associated with statutory drafting, that approach involved firstly the application of the indicia test in determining the meaning of an “association of persons”. (McMullin J also adopted the indicia test although he came to a different conclusion.)  What followed next was the application of the presumption in section 27 in determining if an “association of persons”, found to be in existence already, was a society within the meaning of the SO. (McMullin J also referred to the utility of the presumption in understanding the legislative intent for the meaning of “society”.)  Thus, the repeal of the presumption in section 27, which only concerned the second step, did not detract from the prior interpretation undertaken by the Court for the term “association of persons”, in particular, the adoption of the indicia test.

117.  The Full Court’s adoption of the indicia test is entirely consistent with the application of the ejusdem generis rule for the construction exercise. It is also a useful fact-finding tool to determine if the entity in question is an “association of persons” in the overall circumstances of the case. Understood in this way, Yim Wai Tsang remains good law.

118.  Before the repeal of section 27, the presumption would have the practical effect of deeming a “club, company, partnership or association of persons”, once proved to be in existence, to be one “to which the provisions of this Ordinance apply” so as to qualify it as a “society” falling within the statutory definition. After the repeal of section 27, the court cannot resort to any such presumption. We note McMullin VP’s observation that without the presumption the legislative intent was “inscrutable”. However, that is not the end of the matter. For the court may and is indeed bound to ascertain the meaning to be borne by the phrase “to which the provisions of this Ordinance apply” by way of statutory interpretation. The court has to grapple with the law as it presently stands.

119.  For the above reasons, we reject all the contrary submissions advanced by the appellants on Yim Wai Tsang. In our view, the Principal Magistrate did not err in adopting the indicia test in Yim Wai Tsang. That was quite legitimate and the appellants’ criticisms are unfounded.

120.  Turning to the interpretation of the phrase “to which the provisions of this Ordinance apply”, according to the statutory formula, a “club, company, partnership or association of persons” is a “society” only if it is one “to which the provisions of this Ordinance apply”. Plainly, the legislative intent is that the SO does not regard “any club, company, partnership or association of persons” per se as a “society”. It is a “society” if and only if the SO applies to it. It is not if the SO does not. This leads to the Schedule which lists out, non‑exhaustively,[129] the persons to which the SO does not apply by virtue of section 2(2).

121.  By excepting the persons listed in the Schedule, the legislature must have regarded them as falling within the definition of “any club, company, partnership or association of persons” to which the SO would otherwise apply. Were it not the case, the SO would not be applicable to them in the first place. The need to except them simply would not have arisen and putting them in the Schedule would have been superfluous, which is something the legislature would not have done. This view is also supported by section 2(2B).

122.  There are some commonalities explaining why those persons listed are excepted such as the fact that they are already registered under or governed by other statutory regimes, or established for solely religious, charitable, social or recreational purposes. However, the list falls short of providing a principled approach to construction for “association of persons”. In particular, while the legislature may have regarded an unincorporated trust falling within Item 16 as an “association of persons”,[130] it does not necessarily follow that as a matter of construction, an unincorporated trust of any kind for whatever purpose is such an entity. In this regard, the Principal Magistrate erred when she ruled that Item 16 had the effect of including all unincorporated trusts as “societies” unless they are solely for charitable purposes.

123.  Reading the phrase “to which the provisions of this Ordinance apply” with section 2(2) and the Schedule as a coherent whole, it refers to every “club, company, partnership or association of persons” not falling within the excepted persons listed in the Schedule. Since the SO applies to such an entity, it is a “society” as defined in section 2(1).

124.  For completeness, we need to deal with two remaining points raised by counsel very shortly:

(1)  Mr Ho submits that the Principal Magistrate erred in relying solely on the Chinese text “一人以上的組織” without reference to the English text “association of persons” in the construction exercise. Whether she erred is in our view academic because we are able to arrive at the proper construction, which is different from hers, without reference to the Chinese text.

(2)  Both Mr Pang and Mr Ho cite various overseas authorities in support of their submissions. They essentially concern the meaning of “association of persons” or a similar term in wholly different foreign statutory contexts. We agree with Mr Chau that they simply do not assist the court in the construction exercise. Reliance on them is wholly misplaced.

D5.  Conclusion

125.  By limiting an “association of persons” to the genus of a “club, company or partnership”, the construction set out above is sufficiently but not overly wide in seeking to achieve the legislative purposes of the SO. Whatever its nature or objects, and as long as the SO applies to such an “association of persons” in that it does not fall within any of the excepted persons listed in the Schedule, it falls within the statutory definition of a “society”. Further, as will be elaborated below, this construction clearly defines the scope of the term and satisfies the “prescribed by law” requirement.

E.  Issue 2 – prescribed by law

126.  The appellants criticize the Principal Magistrate for failing to address the Issue. Their criticism is not entirely without merit because it does appear that she had not expressly dealt with the “prescribed by law” requirement or the parties’ arguments, other than observing that the offence provisions in section 5C are “very clear” and that “there was no issue of constitutionality”.[131] She seemed to have concluded that the “prescribed by law” requirement was satisfied without articulating the reasons why.

E1.  General principles

127.  BL 39(2) provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. BOR 18(2) lays down a similar requirement for any restriction on the right to freedom of association. This imports the norm of legal certainty. There is a wealth of authorities on the general principles, which are well-established: see Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381; Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386; Winnie Lo v HKSAR (2012) 15 HKCFAR 16. In Mo Yuk Ping, Mason NPJ summarized the principles thus:

“[61] A criminal offence must be so clearly defined in law that it is accessible and formulated with sufficient precision to enable the citizen to foresee, if need be with appropriate advice, whether his course of conduct is lawful or unlawful. It is, however, accepted that absolute certainty is unattainable and would entail excessive rigidity. Hence it is recognised that a prescription by law inevitably may involve some degree of vagueness in the prescription which may require clarification by the courts.

[62] The concept of legal certainty recognizes that in a common law system, the common law, declared as it is by the judges, involves an incremental element of judicial lawmaking, whether by way of moulding the law to meet new circumstances and conditions or to correct errors of principle or doctrinal error. In any event, with the common law, as with the interpretation of statute law, it is inevitable that questions continue to arise which require clarification by judicial decision. That is one reason why absolute certainty is unattainable and why some degree of vagueness is inherent in the formulation of laws, especially laws expressed in general terms.

[63] It is also to be expected that, in the case of a general offence expressed in broad and abstract terms, that the degree of vagueness will be perhaps greater than that to be expected in the case of a specific offence directed to a particular situation or particular situations.”

128.  In Winnie Lo, Ribeiro PJ, after referring to the above summary, added:

“[75] The central requirement is therefore that the offence must have a sufficiently clearly formulated core to enable a person, with advice if necessary, to regulate his or her conduct so as to avoid liability for that offence. At the same time, the principles recognise the need for both flexibility and development.

[76] A crime may be of such a nature that its definition has to be broad and flexible enough to embrace many different ways of committing that offence. Such was the case, for instance, with the offences of conspiracy to defraud, considered in Mo Yuk Ping and misconduct in public office, examined in Shum Kwok Sher. Offences so defined are not legally uncertain.

[77] And, as noted in the summary above, in a common law system, the courts develop the law over time, clarifying it and modifying it to meet new circumstances and conditions. As Sir Anthony Mason NPJ made clear, such a process of development is not constitutionally objectionable provided that it does not result in judicially extending the boundaries of criminal liability ...”

129.  As observed by this Court in HKSAR v Tam Tak Chi [2024] 2 HKLRD 565,[132] at [114], similar considerations of accessibility and foreseeability on the one hand, and flexibility and development on the other, and the important role of the court in clarifying the law by way of statutory interpretation lie very much at the heart of the principles, citing the judgment of the European Court of Human Rights in Sanchez v France, App No 45581/15, 15 May 2023.

E2.  Applying the principles

130.  In connection with the registration scheme under the SO, the appellants contend that legal uncertainty because the definition of “society” is devoid of certainty. Further, because of that uncertainty, the date as to when a society is “established” within the meaning of section 5(1) is also uncertain. Finally, there are said to be various uncertainties in the administration of the registration scheme. We will consider these objections in turn.

E2.1  The definition of “society”

131.  The appellants’ submissions are mainly directed to the term “association of persons”. By relying on the Full Court’s criticisms in Yim Wai Tsang about the difficulty in construing the definition of “society”, and the calls for reviews, Mr Ho submits that the adoption of the indicia test in Yim Wai Tsang is not sufficient to satisfy the requirement of legal certainty, especially after the repeal of the presumption in the old section 27. The term “association of persons” still has a nebulous and unascertainable ambit. Ms Li’s submissions are similar in substance.

132.  We have set out above what we consider to be the proper construction of the term “association of persons”. The characteristics enumerated by us for determining if an entity is an “association of persons” are clear. A person who wishes to form or operate an entity has no difficulty, with advice if necessary, to come an informed conclusion whether it is an “association of persons” falling within the statutory definition of “society”.

133.  Further, as explained, the adoption of the indicia test in Yim Wai Tsang remains good law. It helps identify the relevant factors in determining if an entity is an “association of persons” properly construed. Any insufficiency of the indicia test in its application to the facts of a particular case does not in any way affect the legal certainty of the proper construction of “association of persons”. After the removal of the presumption in the old section 27, the court determines the meaning of the term “to which the provisions of this Ordinance apply” by statutory interpretation. Its repeal does not render the definition of “society” legally unclear as contended.

E2.2  When a society is established

134.  To recap, section 5(1) requires a society to apply for registration or exemption from registration within one month of its establishment.

135.  Ms Li argues that there is no statutory definition of “establishment” of a society. Since the time for making the application under section 5(1) starts to run within one month of a society’s establishment, that date must be sufficiently defined to satisfy the requirement of certainty. However, given the vagueness of the meaning of “association of persons”, it is impossible to determine when it is established. Moreover, referring to different dates in the present case, namely, 15 June 2029 when the announcement of setting up of the Fund was made; 28 June 2019 when the Trust Deed came into existence and A1 to A5 signed it; and 6 July 2019 when A1 to A4 held a press conference announcing the official naming of the Fund, Ms Li complains that absent any definition of what is meant by “establishment” in section 5(1), it appears that any peg is sufficient to hang the office-bearers. That fails to meet the “prescribed by law” requirement.

136.  With respect, we are unable to accept Ms Li’s arguments:

(1)  Ms Li seems to have suggested that the word “establish” must be statutorily defined because when the one-month period for registering starts to run is an element of offence. If that is her submission, we have no hesitation in rejecting it. For there is no general requirement that every element of an offence must be statutorily defined. Very often, the legislature will simply leave the matter to the court as a matter of statutory interpretation, which cannot possibly ground any complaint of legal uncertainty. That is exactly the case here.

(2)  Ms Li’s reliance on the purported vagueness of the “association of persons” is similarly premised on the Principal Magistrate’s construction of the term. However, as demonstrated, there is no certainty in its meaning when properly construed.

(3)  The starting point for interpreting the word “establish” is its ordinary meaning in the context of the SO. So construed, it simply means the coming into existence of the society in question. It does not involve any legal uncertainty as contended.

(4)  As to when an “association of persons” comes into existence, it is essentially a question of fact based on the available evidence. The fact-finding exercise, however difficult it might be, does not render the word “establish” legally uncertain. Ms Li’s complaints that on the facts of the present case it is not clear as to when the Fund was established does not give rise to any legal uncertainty in relation to the word “establish”.

(5)  If the court finds that an entity was an “association of persons”, that it came into existence on a certain date and that the SO applied to it, it was a society as defined and was established on that date. The one-month period to apply for registration or exemption from registration under section 5(1) would begin to run.

137.  For completeness, in the particular scenario where section 2(2B) applies, the society was taken to have been established on the date on which the Societies Officer gave the requisite written notice. No uncertainty would have arisen either as a matter of law or fact.

E2.3  Uncertainties in administration

138.  Section 5(1) requires the application to be made in “the specified form”,[133] which the Societies Officer may specify under section 7.

139.  Ms Li takes two main points:

(1)  The particulars contained in the specified form do not assist in informing the public as to what “association of persons” require to be registered,[134] and no information is given on what is the date of establishment sufficient to explain when it is considered time begins to run under section 5(1). Specifically, Note 4 in the specified form titled “date of establishment of society” stipulates that the society is established if any persons in Hong Kong solicits money on its behalf, which is a copy of the text of section 4 of the SO.[135]  A regular Hong Kong citizen does not know whether to register his/her society if it starts to collect money, because of the contradictory indications in SO and the specified form.

(2)  There are no guidelines or safeguards as to how the Societies Officer may exercise the power under section 7. Neither “the Notes for Applicants” nor the FAQ on the Police’s website “About Registration of a Society” elucidates the registration scheme. The FAQ even states that any organization may register as a society – rather than describing it as a mandatory requirement under the SO. Both the Notes and the FAQ are not dated and are capable or being changed at any time.

140.  Ms Li therefore argues that following Chee Fei Ming v Director of Food and Environment Hygiene [2020] 1 HKLRD 373, there is a lack of “sufficient clarity as to the scope of power and manner of its exercise and whether the law provides adequate effective safeguards against abuse” regarding the registration scheme, rendering the mandatory requirement for an “association of persons” to apply for registration within one month of its establishment as failing to meet the “prescribed by law” requirement. With respect, we disagree.

141.  It is trite that the court adopts a holistic approach to “law”, taking into account not only the statutory provision itself, but also the common law, in assessing whether the “foreseeability” in the “prescribed by law” requirement is satisfied, as well as the published policy and guidelines which delineate the boundaries of the administrative discretion, including the effectiveness of judicial intervention: Chee Fei Ming, per Lam VP (as he then was) at [27], [39], [44] ‑ [45], [47] ‑ [48], and [50]. Thus, the specified form, the FAQ and the dedicated webpage should not be considered in isolation. Rather, they must be considered in the entire statutory context of the SO, including the proper construction of “association of persons”, and the particulars prescribed by section 5(1) concerning the application. When this is done, an applicant has no difficulty in determining if the entity concerned falls within the meaning of an “association of persons”, and if so, answering the particulars in the specified form, which seek to elaborate on those in section 5(1), in support of the application under the registration scheme.

142.  Further, the exercise by the Societies Officer of the statutory power to issue the specified form under section 7 and to deal with an application for registration or exemption from registration under the registration scheme, must be firmly rooted in the legislative objects of the SO. They provide sufficient guidelines for the exercise of the power and if necessary for the court to control the exercise of the power to prevent abuse. The absence of any published guidelines or policy does not per se lead to any legal uncertainty. Any suggestion that the Societies Officer has abused his power in making the specified form, which is not supported by any evidence, must be rejected. Specifically, there is no merit in the complaint that the FAQ states that any organization may register as a society rather than describing it as a mandatory requirement under the SO. An entity must apply for registration or exemption from registration if it is a society within the meaning of the SO. It is up to the entity to decide if an application is required. Hence the word “may” is used.

E3.  Conclusion

143.  In consequence, we hold that both the term “society” and the registration scheme of the SO satisfy the “prescribed by law” requirement. The Principal Magistrate’s conclusion in this regard, though not reasoned, is correct.

F.  Issue 3 – proportionality

144.  The right to freedom of association essentially concerns the rights of individual to found an association with like-minded people to pursue common interests, or to join an existing association. It covers not only the formation of the association but also its activities. Where it is engaged in a constitutional challenge, the limitation on the right must satisfy the proportionality test. It involves a four-step analysis:

(1)  the restriction must pursue a legitimate aim;

(2)  the restriction must also be rationally connected to that legitimate aim;

(3)  the restriction must also be no more than necessary to accomplish that legitimate aim; and

(4)  whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individuals, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual.

See Hysan Development Co Ltd v Town Planning Board, per Ribeiro PJ at [52] ‑ [53], [134] ‑ [135].

F1.  Step 1 – legitimate aim

145.  In dealing with the constitutionality issues,[136] the Principal Magistrate did not discuss each of the four steps individually as one would normally do. She observed that the offence provisions in section 5C are “very clear” and that there was no issue of constitutionality.[137] Further, she found that the registration scheme in the SO satisfied the proportionality test. In particular, the requirement for an “association of persons” to register does not impose an excessively heavy burden such that the requirement becomes a real and substantial obstacle.[138]

146.  That said, it is clear that she had found that the registration scheme pursues safeguarding national security, or public safety, public order and protecting the rights and freedoms of others as a legitimate aim. For brevity, we will refer to it as “the Aim”.

147.  Ms Li argues that the Principal Magistrate erred because she had omitted several key points in the legislative history:

(1)  In moving the first reading of the bill for the 1911 SO, the Registrar-General explained that it was intended to control three classes of societies, namely, working men’s clubs, district societies in which the members belonged to the same districts in China, and clubs frequented by young men having revolutionary tendencies or closely connected with the revolutionaries.[139]

(2)  When the registration scheme was removed in the 1920 SO, the Attorney-General remarked in the legislative process that it was overbroad and might be counterproductive in driving unlawful societies underground.[140]

(3)  When the registration scheme was reinstated in 1949, the 1949 SO contained the “sunset” clause, indicating that it was effectively emergency legislation, requiring good reason to perpetuate it.

(4)  Even when the “sunset” clause was removed in 1970, the Attorney General emphasized that the principal reason for enacting the SO was the need to provide adequate powers to deal with triad societies and other groups of an undesirable nature.[141] The Attorney-General had since repeatedly said that the SO did not aim at controlling reputable or legitimate societies.[142]

Ms Li concludes by contending that in light of the legislative history of the SO, the registration scheme requiring all societies to apply for registration or exemption from registration does not serve the Aim.

148.  We have already set out the primary purposes of the SO at [105] and [106] above. Suppressing triad and other unlawful societies is but one of its purposes. Significantly, the Aim has become one such purpose since the introduction of the Public Interests Ground in sections 5A(3)(a), 5D(1)(a) and 8(1). Ms Li’s complaint reveals a blinkered approach to the SO’s legislative history. When those points relied on by her are considered against the history in entirety, they do not detract one bit from any of the primary purposes of the SO:

(1)  When his speech in moving the first reading of the 1911 SO is considered in its entire context, the Registrar-General plainly referred to working men’s clubs, district societies and clubs frequented by young men having revolutionary tendencies or connections as examples of the societies which the Ordinance sought to control. He was not restricting its scope to them exclusively. He in fact emphasized the need to control all clubs and societies by pre-emptive regulation, although he readily acknowledged that in practice a very large number would be exempted.[143]

(2)  The Attorney-General’s view expressed in 1920 that the registration scheme was overbroad and might be counterproductive was based on the then prevailing societal circumstances and practical experience. As noted at [44], while the 1920 SO replaced it with the notification system, its legislative aim to effectively maintain the peace and order in Hong Kong remained unchanged. Moreover, the law could not and did not remain static. When circumstances changed, as it did in 1949, the view held in 1920 did not prevent the legislature from reinstating the registration scheme. Plainly, the legislature considered that the registration scheme would better serve the primary purposes of the SO than notification. Indeed, the Attorney-General emphasized that there should now be in existence a record of all societies in Hong Kong and a knowledge of their objects combined with enhanced powers to control societies.[144]

(3)  Even accepting, without deciding, that by adopting the “sunset” clause, the legislature considered an annual review was necessary because the SO was an intrusion into the right to freedom of association, the clause could not have the effect of reducing the primary purposes of the SO to control of triad and other unlawful societies only.

(4)  When the Attorney-General reiterated the need to control triad and other unlawful societies by the SO in 1970 and thereafter, it did not mean that somehow safeguarding national security and public safety, public order and protecting the rights and freedoms of others had been displaced or had become otiose.

149.  As a fallback, Ms Li contends that the Aim is too expansive. However, given its nature and object, it must be couched in broad terms. More importantly, its meaning is informed by section 2(4). To recap, section 2(4) at the time of the charge defined “safeguarding national security” to mean “safeguarding of the territorial integrity and the independence of the People’s Republic of China”.[145]  The breadth of the term is well-defined. It further requires the expressions “public safety” and “the protection of rights and freedoms of others” to be interpreted in the same way as under the ICCPR as applied to Hong Kong. That imports the jurisprudence on the meaning of those expressions, preventing any arbitrary or sweeping interpretation.

150.  In our view, as an essential part of the statutory regime, the registration scheme pursues the very same primary purposes of the SO, including the Aim. Replicating the restrictions on the right to freedom of association as are permissible under BOR 18(2), the Aim is entirely legitimate. Further, to effectively serve the Aim, the registration scheme must cover all societies. Leaving some out would substantially defeat the Aim, not to mention the conceptual and practical difficulties in drawing the line.

F2.  Step 2 – rationality

151.  The question is whether there is a rational connection between the registration scheme and the Aim.

152.  In finding that there is such rationality, the Principal Magistrate went through the requirements under the registration scheme and held that the information required under the registration scheme is only for the government to achieve the purpose of supervising the establishment of societies; that the one-month limit is sufficient for the societies to handle the application; that the scope of a section 5C(1) offence is narrow with a statutory defence; that the sentence is not unduly heavy; and that the SO does not provide for an approval scheme because a society does not need to obtain permission before establishment and operation. She held that the requirements are consistent with the Aim.

153.  In contending that the Principal Magistrate erred, Ms Li takes three main points.

154.  First, there is no rationality in requiring all societies, whatever their nature or objects, to apply for registration or exemption from registration having regard to the legitimate aim of safeguarding national security and public safety, public order and protecting the rights and freedoms of others. The net has been cast too wide.

155.  Second, the Societies Officer has potent powers in the SO independent of the registration scheme:

(1)  The power to recommend to the S for S to prohibit the operations of a society under section 8. That was in fact used in relation to the “Hong Kong National Party”, a body advocating independence of Hong Kong, in 2018. On the other hand, the registration scheme, as noted in 1920, may drive societies engaging in criminal activities underground.

(2)  The power to demand information to be furnished by a society under sections 15 and 16, which is not predicated on it being registered.

(3)  The power to enter any place or premises which the Societies Officer has reason to believe is used by any society as a place of meeting of business, where he reasonably believes it necessary to perform his functions under section 31, which is again not predicated on the said society being registered.

156.  Third, even if a requirement for registration could facilitate national security, public safety, public order and the rights and freedoms of others, an enforcement and offence-creating provision under section 5C(1) is not rationally connected thereto. She cited Kudrevicius v Lithuania (2016) 62 EHRR 34 in support, where it was observed at [150] that, in the context of freedom of assembly, the enforcement of rules governing public assemblies cannot become an end in itself.

157.  For present discussion, five aspects of the registration scheme are relevant. First, it applies to all societies. Second, under section 5, a society must provide the information stipulated in support of the application. Third, it must take out the application within one month of its establishment. Fourth, section 5A empowers the authority to refuse the society’s application on the Public Interests Ground. It has to cease operations after receiving the notice of refusal. There are also other related powers under sections 8, 15, 16, 31 and 32. Fifth, the offence and penalty provisions in section 5C. They are considered in turn below.

F2.1  Application

158.  To effectively achieve the Aim, the registration scheme must apply to all societies. If it were to apply to some but not others, a lacuna would be created, thereby seriously undermining, if not defeating the Aim altogether. We doubt if the registration scheme would really drive societies engaged in criminal activities underground. By their very nature, they would operate underground anyway with or without the registration scheme.

F2.2  Provision of information

159.  As a basic and undisputable proposition, the authority needs some essential information about a society to determine if the Public Interests Ground is or is likely to be engaged by its formation or activities. It is impracticable if not virtually impossible for the authority to act in the absence of such information. Self-evidently, it is the society who is in the best position to provide the information. To be truly effective, a legal duty is imposed on the society to do so under section 5.

160.  Section 5 requires the society to furnish four classes of information, which is supplemented by the specified application form for registration or exemption from registration.[146]

161.  The first class of information is the name of the society or the name of the branch, if different.

162.  The name represents the society’s identity. It prevents a society from using a name that is identical or closely resembling that of another society, thereby avoiding confusion. It also normally gives some good indications as to the purported or true character or purpose of a society, which is relevant to the consideration of whether the Public Interests Ground is or is likely to be engaged. The same is true for the name of the branch, if different from the society’s.

163.  The second class of information is the objects of a society and the objects of the branch, if different.

164.  The objects set out the goals, purposes or aims of the society. They explain why the society is formed, what it seeks to pursue, how its goals are to be attained, and outline what activities are to be carried out. All these matters are central to the consideration of whether the Public Interests Ground is or is likely to be engaged. The same applies to the objects of the branch, if different.

165.  The third class of information is the particulars of the office-bearers of the society or the branch.

166.  As stipulated in the specified form, such particulars identify each of the office-bearers with name, gender, nationality, HKID number or other valid identity document number, contact number and local address. They ensure that the office‑bearers are not some fictitious figures but are real and traceable persons who may be held accountable for breaches of the provisions in the SO. Who the office-bearers are would obviously impact on how the society or the branch is to be operated, which is in turn material to the consideration of whether the Public Interests Ground is or is likely to be engaged.

167.  The fourth class of information is the address of the principal place of business of the society or the branch and of every place or premises owned or occupied by the society. As supplemented by the application form, proof of address by a utility bill, a bank statement or a letter from the Government within the last 3 months is required. If the society is using premises occupied by any person other than an office-bearer, a consent letter from the lawful occupier of the premises is required. A post office box is not acceptable as a place or business but may be considered as a correspondence address.

168.  The information about the address helps determine if the society is a local society, thus ensuring that it falls within the registration scheme. It also verifies the physical presence of the society or the branch where its business or activities are conducted. The information on the address will enable the authority to take steps, if necessary, under sections 31 and 32 in connection with the Public Interests Ground.

169.  Depending on the circumstances, the information provided initially may prompt the authority to require for more information about the society or the branch in connection with the Public Interests Ground under section 15. The information, kept as a record, may also help the authority to monitor any change in the operations of a society or its branch that may engage the Public Interests Grounds.

170.  Thus analyzed, the provision of the information prescribed by section 5 is rationally connected to the Aim.

F2.3  Time limit

171.  Another basic and undisputable proposition is that time is of the essence in dealing with a society or its branch on the Public Interests Ground. A society or branch which engages the Ground must be refused registration or exemption from registration and cease operation as soon as the circumstances permit, which is facilitated by the one-month limit for taking out a section 5 application. The time limit is rationally connected to the Aim.

F2.4  Power to refuse an application and other related powers

172.  The authority’s power to refuse a section 5 application on the Public Interests Ground, leading to cessation of the society’s operations, is a direct application of the Aim. The rationality between the two is self‑evident.

173.  Sections 8, 15, 16, 31 and 32 apply to all societies, whether registered or not. However, contrary to Ms Li’s submissions, while those powers may be exercised independent of the registration scheme, taking the statutory regime of the SO as a whole, they are intended to and do work in tandem with the registration scheme, including the furtherance of the Aim when the Public Interests Grounds is or is likely to be engaged.

F2.5  Offence and penalty provisions

174.  Section 5C underpins the registration regime by incentivizing office-bearers to take out a section 5 application on behalf of the society, failing which they may face criminal liability personally. Without the section, no legal consequences would follow from any breach of section 5, thus diminishing the utility of the registration scheme including the furtherance of the Aim. It is plainly rationally connected to the Aim. Section 5 is not an end in itself and Ms Li’s reliance on Kudrevicius v Lithuania is entirely misplaced.

F2.6  Conclusion

175.  For the above reasons, we hold that the registration scheme is rationally connected with the Aim.

F3.  Step 3 – no more than necessary

176.  Ms Li takes a preliminary point. She argues that the prosecution failed to adduce the specified application form at the time of the offence either in evidence or otherwise. How onerous the requirements therein may be therefore remain unknown. The prosecution was in no position to submit, and the Principal Magistrate was in no position to hold, that the requirements, and thus the registration scheme, were no more than necessary.

177.  In response, Mr Chau submits that the prosecution had not adduced the specified form at trial because it was admitted by the defence that no application under section 5 had been taken out by the Fund. The specified form was hence not vital to the prosecution case. Further, section 5 clearly stipulates the details required for the application. In any event, the information and documents required under the current version of the specified form and the version at the time of the offence are essentially the same.

178.  In our view, the absence of the specified form at the time of the offence at trial is a little unsatisfactory but not fatal. The starting point is the statutory provisions of the registration scheme, which set out the requirements for the application. There is nothing wrong for the Principal Magistrate to proceed on that basis even if the specified form had not been adduced. On appeal, nothing in the evidence remotely suggests that the specified form at the time of the offence went outside the parameters laid down by the provisions or requires any additional substantial information; or that it is in any way materially different from the current version. Ms Li herself has relied on the current version. In the circumstances, we can see no objection to referring to it in our discussion as appropriate.

179.  We now turn to examine the registration scheme more closely to see how and to what extent it affects the right to freedom of association.

F3.1  Breadth of the registration scheme

180.  We first look at the breadth of the registration scheme.

181.  The registration scheme applies to all local societies falling within the SO. Ms Li submits that it is not “no more than necessary” because of the sheer scope of its mandatory application, covering all societies whatever their nature or objects, size or however long the temporal duration of their existence.

182.  We do not consider the breadth of the scheme per se is conclusive or determinative. If the scheme, on the whole, does not constitute a disproportionate interference, the scope of its application, however wide, cannot ground a constitutional challenge. If it does constitute a disproportionate interference, then however narrow its scope, a society falling within the scheme can mount the constitutional challenge. It means that whatever the breadth of its scope, the court must examine the other features of the scheme to determine if it constitutes such an interference.[147]

F3.2  Procedure and requirements for a section 5 application

183.  Second, in relation to the procedure and requirements for a section 5 application, the question is whether they are so burdensome as to amount to a substantial restriction on the right.

184.  The procedure for taking out the application is simple and straightforward. The office-bearers only need to fill in and return the specified form with the supporting documents. As seen in Part F2.1, the information and documents required are simple and readily available. The office-bearers should have no real difficulty in gathering them within one month of the establishment of the society. Contrary to Ms Li’s arguments, they do not constitute any serious forms of interference.

185.  Ms Li argues that where a society does not, within one month of its establishment, possess 3 office-bearers, a name, and a principal place of business such that it can register under section 5, there are only two logical outcomes. It is either not a society to which the SO is intended to apply, or it is forced to take such a shape and be subjected to additional onerous requirements in order not to fall foul of the section 5C(1) offence. In which case, it is a factor held to be showing disproportionate interference with freedom of association: Zhechev v Bulgaria, ECtHR No 57045/00, 21 June 2007, at [56]. We disagree.

186.  The SO does not impose any legal obligation on any individual who wishes to form an association to take any particular form or shape. It is up to the founders to decide on its name, whether it should have a place of business, and how many office-bearer(s) it should have. Whatever the decision on those matters is, the registration scheme applies only if it is on evidence a society falling within the statutory definition as properly construed. For completeness, although section 5 stipulates that the application form must be signed by 3 office-bearers, we do not consider it as a legal requirement that the society must have that number of office‑bearers. If on the evidence an entity falls within the statutory definition as properly construed, it is a society irrespective of the number of its office‑bearers. Where the number is less than 3, applying a purposive construction to section 5(1), the application form must still be signed by the office-bearer(s). For it would defeat the purpose of section 5 if a society with less than 3 office-bearers would be relieved of the duty to take out the application.

187.  Moreover, there are procedural safeguards and appeal mechanisms built into the registration scheme to ensure that it is properly administered: sections 5A(3) to (5) and 5B, 5D(2) and (3) and 5E.[148] The exercise of the powers under the registration scheme is also subject to the court’s supervisory powers in judicial review.

F3.3  Not a pre-approval scheme

188.  Third, section 5 does not operate as a pre-approval scheme whereby a society cannot be formed or commence its operations until approval is given. Specifically, as observed, the registration scheme is not predicated on any requirement that the society must take a certain form or shape. The founders are at liberty to choose whatever form or shape the society may take. A society may be formed and operate until a notice of refusal is received under section 5A(6), which is to be read together with section 5F(1).

F3.4  Result of a refusal

189.  Fourth, a refusal of a section 5 application does not automatically result in immediate cessation of the society’s operations. Sections 5A(6) and 5F(1) apply. It also does not automatically render the society an unlawful society, which is subject to much more serious criminal sanctions.

F3.5  Consequences of failure to take out the application

190.  Fifth, subject to section 8, a failure to take out a section 5 application by a society does not affect its operations or the activities of its members, which may simply continue. The only legal consequences lie with the office-bearers who may face criminal sanctions under section 5C(1). The members are not so exposed.

191.  Section 5C(1) created a regulatory offence, as opposed to a serious criminal offence, targeting the office-bearers only. As persons who are responsible for running the society’s business or affairs, the office‑bearers should make sure that the society complies with the important legal duty to take out a section 5 application. Making them accountable for the breach by criminal sanction is entirely reasonable.

192.  Further, section 35 requires the written consent of the Secretary for Justice for a prosecution of a section 5C offence. It provides an additional safeguard in that the Secretary for Justice has to take into account the public interest in considering if he should give the consent.

193.  Section 5C(2) balances the burden of the offence by providing for the statutory defence of due diligence. What is required to be established under the defence is not overly onerous.

194.  Even if an office-bearer is liable, the penalty is relatively light, which is commensurate with the regulatory nature of the offence.

F3.6  Other related provisions

195.  Ms Li submits that societies that register under the registration scheme are subject to highly intrusive powers such as to inform the Societies Officer of any changes in particulars (section 10); publication of a list open to public inspection (section 11), while any information or document they provide to the Societies Officer may be provided to any person (section 12). We disagree:

(1)  The particulars required under section 10(1) are changes in names, objects, office-bearers or principal place of business or closure of a branch. They are essentially the same information required for a section 5 application. Requiring an update of such changes does not amount to any highly intrusive interference. It ensures that the record kept by the Societies Officer is accurate and updated, which is entirely reasonable and necessary for him to carry out his functions under the SO.

(2)  Sections 11 and 12 provide transparency of the registration scheme in general, which is conducive to good governance. Further, the list and information essentially refer to the same particulars provided by a society under a section 5 application. Given their limited contents, even if available to the public, they do not constitute an excessive intrusion into the freedom of association.

196.  Harking back to sections 8, 15 to 16 and 31, Ms Li then submits that there are other significantly less intrusive and equally effective measures in the SO, effectively rendering the registration scheme otiose and self-serving. We reject this submission for the reasons stated at [173]. It bears re-emphasising that those powers do not displace the registration scheme or detract from its utility one bit.

F3.7  Notification system – an equally effective system?

197.  The Principal Magistrate referred to a voluntary registration scheme, which we take it to mean a notification scheme similar to what was previously in place before 1997, and observed that “sole reliance on it is insufficient to safeguard national security, public safety and public order” and that the Government has the duty to “supervise through a statutory registration scheme”.[149]

198.  Ms Li criticizes the Principal Magistrate’s view as a bare assertion, ignoring the law, scope and context of the registration scheme, and all the powers available under the National Security Law, and all other legislation powers and provisions aimed at safeguarding public safety, public health and public order too numerous to list. We again disagree because:

(1)  Ms Li seems to be suggesting that in light of the other laws, the registration scheme is unnecessary. However, the registration scheme is part of the laws of Hong Kong in furthering the Aim in its own way. The other laws do not render it otiose or irrelevant.

(2)  Ms Li also seems to be suggesting that a voluntary notification scheme, supported by the other laws, would be equally effective. It is not clear from Ms Li’s submissions how the other laws would make it as effective as the registration scheme. More importantly, the authority needs the essential information relating to a society to be furnished within a reasonable time after its establishment to perform its functions under the SO, including the furtherance of the Aim. To be truly voluntary, the notification scheme, even supported by the other laws, would have to leave the provision of information relating to the office‑bearers as they see fit. Self-evidently, it would be far less effective than the registration scheme.

199.  For the above reasons, we find that the registration scheme, on the whole, is no more than necessary to accomplish the Aim.

F4.  Step 4 – reasonable balance

200.  Self-evidently, the societal benefits arising from the Aim are enormous. Nothing in the evidence suggests that any individual including the appellants would be subject to an unacceptably harsh burden by the restrictions imposed by the registration scheme on their exercise of the right to freedom of association. Ms Li has not made any contrary submissions either.

201.  We find that a reasonable balance as required by the proportionality test is satisfied.

F5.  Conclusion

202.  In conclusion, we hold that the registration scheme satisfies the proportionality test. The Principal Magistrate came to the correct conclusion although with only brief reasons.

G.  Issue 4 – was the Fund a society?

G1.    It was not a validly constituted trust

203.  The Principal Magistrate held that:[150]

(1)  In light of how the Fund was established and operated, and the appellants’ involvements, it was an unincorporated trust of a public character that was not established solely for charitable purposes. It also touched upon matters of public concern. It was therefore a local society but nobody had applied for registration or exemption from registration on its behalf.

(2)  Specifically, the defence’s argument that, by reference to trust law, the Fund was but a sum of money and the appellants, as trustees, did not have mutual rights and obligations, was rejected. Trust law and the SO are not mutually exclusive. By including an unincorporated trust of a public character as an exempted person in the Schedule, the SO has already taken into account associations operating as a trust. As such, unincorporated trusts of a public character, unless established solely for charitable purposes, are societies to which the SO applies.

204.  At trial, the appellants advanced their defence on the basis that the Fund was a validly constituted trust since its inception. That was also how they anchored their written submissions on appeal. Their main argument was that the Principal Magistrate erred because the Fund was but a sum of money held on trust by the appellants. As trustees, the appellants did not have any mutual rights and obligations among themselves inter se: Liquidator of Wing Fai Construction Co Ltd v Yip Kwong Robert [2018] 1 HKC 472, per Godfrey Lam J (as he then was) at [189]. Even applying the indicia test in Yim Wai Tsang as the Principal Magistrate did, that essential characteristic of an “association of persons” was missing. So, the Fund could not be an “association of persons”, let alone a “society”.

205.  However, the proposition that the Fund was a validly constituted trust since its inception is wrong as a matter of law. At the outset of the hearing, we pointed out to the parties that on a proper reading of the Trust Deed, the Fund that it purported to set up was a purpose trust.[151]  The only kind of valid purpose trust recognized by the law is a charitable trust, that is, a trust for relief of poverty; advancement of education; advancement of religion; and other purposes beneficial to the community: Snell’s Equity, 35^th Edition, §21.05; Halsbury’s Laws of Hong Kong, 2^nd Edition, Vol. 50, at [400.009]. But the Fund was not one of those, which means that it was never a validly constituted trust. After consideration, the parties agreed with our view. Moreover, as the Trust Deed had not named anybody as the settlor, the Fund must also fail as a valid trust on that additional ground.

206.  The appellants submit that the Fund, as an invalid trust ab initio, became a resulting trust: Lewin on Trusts, 12^th Edition, §9-004, which proposition the respondent does not dispute. In our view, whether it was a resulting trust or not does not matter. The crucial fact is that the Trust Deed purported but failed to create any valid trust from the very beginning.

207.  In the circumstances, the Principal Magistrate’s finding that the Fund was an unincorporated trust is wrong.[152] However, it is not the end of the matter. The question remains: according to the proper construction of the term as we found above and on the available evidence, was the Fund an “association of persons”?

G2.  Its essential characteristics

208.  Applying that construction and on the undisputed evidence:

(1)  The Fund was formed by a group of identified persons, namely the appellants, for the common purposes and objects as stated in the Trust Deed, under the name of the Fund.

(2)  Its business and affairs were governed by the Trust Deed and the Supplemental Trust Deed, according to which the appellants managed the Fund and operated its business and affairs. The trust instruments are binding on the appellants who had signed, sealed, and delivered the same. Although it is not entirely clear if it had been adopted, the way in which the appellants conducted the financial affairs of the Fund, as seen from the minutes of meetings, was consistent with the Financial Guidelines.

(3)  As provided in Clause 3.2 of the Trust Deed, the appellants might employ such persons to perform such duties as they considered necessary for the proper administration of the trust. It transpired that D6 was employed as the secretary‑general since 1 July 2019 and ET Aqua was from August 2019 engaged to provide services as secretariat. A broad governance structure emerged whereby the appellants made decisions and gave instructions regarding its affairs, including, importantly, how donations were to be distributed. D6 and the secretariat took care of the Fund’s daily management and operations and implemented the appellants’ instructions.

(4)  The appellants held regular meetings at different places in Hong Kong since July 2019 to discuss and decide on the business and affairs of the Fund. They were places from which they operated the Fund’s business.

(5)  The Fund’s operations had certain formalities, substance and permanence. The appellants as trustees entered into the ATDL Agreement on 4 July 2019, a legally binding contract, to enable the Fund to receive and distribute public donations through the ATDL Account. Under Clause 4 of the Trust Deed, they must keep accounts and statements concerning the receipts and distributions of the donations. They might also appoint auditors, which they did. The provisions of the Trustee Ordinance (Cap 29) concerning retirement of existing trustees and appointment of new trustees were expressly incorporated into the Trust Deed: Clause 7. Through the Fund’s Facebook Page and the Fund’s Website, the Fund maintained a virtual presence and updated the public about its work from time to time. It also actively interacted with the public through the appellants.

G3.  The appellants’ mutual rights and obligations

209.  What is hotly contested by the parties is the remaining question whether the appellants had any mutual rights and obligations inter se.

210.  Mr Chau submits that the mutual rights and obligations between the appellants first arose out of their express duty under Clause 3.5 of the Trust Deed to act jointly and with unanimous consent. However, Clause 3.5 must be read subject to the general principle that trustees do not have any mutual rights and obligations among them inter se. When it is so read, Mr Ho is correct in submitting that it best gives rise to a shared as opposed to mutual duty to act accordingly.

211.  Mr Chau then submits that appellants as trustees are under a common law duty to keep watch on each other and ensure that each of them, as co-trustees, abided by the terms of the Trust Deed, citing in support Styles v Guy (1849) 1 Mac & G 422; Booth v Booth (1838) 1 Beav 125; Lincoln v Wright 4 Beav 427; and Muklow v Fuller (1821) Jac 198.

212.  For present purposes, it is sufficient to just examine Styles v Guy more closely. There, two of three executors, with the knowledge that there were unsettled accounts subsisting at the testator’s death between the testator and their co-executor in respect of which they had reason to believe that the latter was considerably indebted to the estate, took no effectual steps to compel him to account and pay or secure the balance due for several years after the testator’s death, at the end of which he became bankrupt. The solvent executors, being unable to prove that an attempt to recover the money at an earlier period would have been fruitless, were ordered to make good the loss to the estate at the suit of the daughter of the testator, as having been occasioned by their wilful neglect and default.

213.  Mr Chau prays in aid of the holding by the court held that it is the duty of executors, no less than of trustees, to keep a check upon each other’s conduct, and an executor is equally chargeable with neglect in allowing a part of the estate to remain outstanding in an improper state of investment, whether the party in whose hands is so outstanding be a co‑executor or a stranger. However, that holding must be understood against the facts, which clearly show that the executors owed that duty to the estate, and not the co-executor. In any event, as submitted by Mr Ho, the duty mentioned concerns executors in the specific context of wills, with little relevance to the present case. The same points are equally true for the other cases relied on by Mr Chau.

214.  Mr Ho initially submitted that the fact that the Fund was a failed trust does not affect the position because no mutuality was intended by the appellants at the very outset. Upon further questioning by the Court, he accepted that conceptually, it is possible for the trustees, under a valid or even an invalid trust, to have mutual rights and obligations in addition to the relationship qua trustees, depending on the terms of their agreement and the trust. But he maintains that in the present case, the Trust Deed did not create any such mutuality among the appellants. This brings us to a closer examination of the evidence.

215.  On the undisputed evidence, we find that the appellants had all along intended to use the Fund as a vehicle to appeal for, collect and apply public donations for the purpose of supporting the anti‑Amendment Bill movement. Such was the clear message A2 to A5 made to the public at the press conference on 15 June 2019.[153]  A1 also viewed the Fund as such a vehicle when he on 6 July 2019 explained why he accepted the other appellants’ invitation to join the Fund as trustees.[154]  By then, the potential beneficiaries of the Fund had been extended to include other political bodies or causes as stipulated in Clause 2.2 of the Trust Deed. Setting up the Fund as a trust would be necessary to ensure accountability, as explained by A2, and would evidently give formality to the arrangement, help instill public confidence and enhance appeals for donations. However, the Trust Deed and the Supplemental Trust Deed did not detract from the core nature and function of the Fund as such a vehicle. Contrary to the appellants’ contention, and as rightly found by the Principal Magistrate, the Fund is more than “a mere sum of moneys held by the appellants on trust”.

216.  The Trust Deed did not name any settlor, the only person who could appoint the trustees. Instead, the appellants were all self-appointed. As an irresistible inference, we find that they entered into it because they had agreed to join and operate the Fund as the vehicle as aforesaid; and to conduct themselves in running the Fund as such a vehicle in accordance with the provisions of the Trust Deed (“the Underlying Agreement”). The Underlying Agreement led to the execution of the Trust Deed.

217.  Thus, there existed mutual rights and obligations among the appellants under the Underlying Agreement, obliging them to conduct themselves in operating the Fund as the vehicle in accordance with the Trust Deed and for that matter, the Supplemental Trust Deed. That was something additional to their relationship qua trustees under the two Trust Deeds, even if a trust had been validly constituted.

218.  The parties now accept that the Fund had never created any valid trust ab initio. However, they have not made any submissions on how that would impact on the appellants’ relationship qua purported trustees. In our view, whatever their relationship qua purported trustees might be, the Underlying Agreement remained intact and continued to govern the appellants inter se. They were still subject to the mutual rights and obligations that existed thereunder.

219.  There remain Mr Lam’s submissions. He first complains that the Principal Magistrate failed to show who the members of the Fund were. However, on the available evidence, the Fund plainly had five members, that is, the appellants. He next contends that the appellants never derived financial or material benefit for themselves, nor did the Fund engage in any activity which derived such benefits for them. That argument is based on his construction of “association of persons”, which we have already rejected. It must also fall away.

G4.  Conclusion

220.  In conclusion, we find that the Fund satisfied all the characteristics of an “association of persons” as properly construed. Since it was never an excepted person listed in the Schedule, the provisions of the SO applied to it. It was thus a society within the meaning of the SO. Further, as it was established and organized in Hong Kong, it was a local society. Although her reasons differ from ours, the same ultimate finding reached by the Principal Magistrate was correct.

H.  Issue 5 – when was the Fund as a society established?

H1.  The Principal Magistrate’s finding – 15 June 2019

221.  The Principal Magistrate found that the Fund as a society was established at the latest by 15 June 2019 and continued to operate until 31 October 2021. She arrived at that finding by reason of what took place on 15 June 2019.[155]  On that day, A2 to A5 held the press conference to introduce the provisional fund, and the Fund’s Facebook Page with designated email address were made available for the public to approach the Fund. It was also confirmed on the Fund’s Facebook Page that the Fund was established on 15 June 2019.[156]

222.  Mr Lam submits that as an element of offence, “establishment” imports a requirement of having a sufficient degree of permanence both in temporal and substantial sense over and on top of the requirement that “a society is to be shown”, and must be proved by the prosecution beyond reasonable doubt. However, the Principal Magistrate had failed to engage this argument and erred as a result. We reject Mr Lam’s argument as it is based on his erroneous construction of “establishment”. As noted, on a proper construction, it simply means when a society came into existence.[157]

223.  That said, we consider that the Principal Magistrate erred in her finding as to the date when the Fund as a society was established.

H2.  Our finding – 28 June 2019

224.  What A2 to A5 did at the press conference on 15 June 2019 was to make known to the public their plan to establish the Fund in the days to come, to introduce some proposed details and to earnestly appeal for public support. Making the Fund’s Facebook Page available to the public with the designated email was another preparatory step. Receiving public donations raised during the public procession on 19 June 2019 gave the Fund the necessary “seed moneys”, that is, property capable of being subjected to a trust, for setting it up as a trust later. On 19 June 2019, A2 to A4 confirmed on the Fund’s Facebook Page that they would meet as soon as possible to discuss and prepare the constitution of the trust. They must have regarded the constitution as instrumental to the setting up of the Fund. The overall evidence overwhelmingly suggests that the Fund as a society had not come into existence yet. A2 to A4’s message posted on the Fund’s Facebook Page that the Fund was established on 15 June 2019 did not sit well with the other evidence. Objectively, it could not be correct.

225.  As found by us, pursuant to the Underlying Agreement, the appellants executed the Trust Deed on 28 June 2019. Crucially, the Trust Deed created the Fund; formally named it as the “612 Humanitarian Relief Fund”; set out the appellants’ powers and duties; laid down the rules for administration of the Fund. As envisaged in Clause 3.2, the Fund would have a broad governing structure with the appellants as administrators and decision-makers and the persons to be employed to deal with daily management including implementing the appellants’ decisions and instructions. The appellants obviously would have to meet to conduct the Fund’s business at a certain place, which means that Trust Deed clearly envisaged that it would have a place of business. Further, the Trust Deed contemplated that the appellants would conduct its business with certain degree of formality, substance and permanence, such as employment of agents (Clause 3.2); requiring them to act jointly or with necessary majority (Clause 3.5); requiring them to keep books and engage auditors (Clause 4); providing them with indemnity (Clause 6). The evidence shows that the appellants did subsequently operate the Fund pursuant to the Trust Deed.

226.  In these circumstances, we find that the Fund processed all the essential characteristics of an “association of persons” when the Trust Deed was executed on 28 June 2019. As a society, it came into existence there and then, which triggered the one-month period to make the application under section 5(1).

I.  Issue 6 – were the appellants office-bearers?

I1.  The Principal Magistrate’s reasons

227.  The Principal Magistrate held that on a proper construction, “office-bearer” is one of the persons who is a part of the society, being a member but who, compared with other regular members, holds an additional position in leadership, administration, finance, or governing body, and is one who understands best how the society operates.[158]  On the evidence, she found that the appellants had the same duties and were jointly responsible for governing the Fund in accordance with the Trust Deed. They were important decision-makers in carrying out the operations of the Fund, with positions analogous to presidents and vice‑presidents. They were thus members and office‑bearers of the Fund. In particular, A2 participated to the greatest extent as the person-in-charge, occupying a position analogous to the president of the Fund.[159]

I2.  The appellants’ criticisms

228.  Mr Pang submits that the evidence does not support the Fund having any office-bearer within the statutory definition. There is no committee or governing body. The appellants as trustees simply decided how the donations received on trust were to be used, in accordance with the Trust Deed. He cites Dick v Commissioner of Inland Revenue [1999] 2 NZLR 756, at p.759 in support.

229.  Mr Pang next criticizes the Principal Magistrate’s construction of “office-bearer” on two broad grounds:

(1)  It is not supported by the statutory language. For example, there is no basis to include the element of “the members who understands best how the society operates” in the meaning of the definition. The principle of legality requires a distinction between regular members and office-bearers such that a person could understand whether and when they would become an office-bearer, and not knowingly or accidentally become an office-bearer.

(2)  It is contrary to common sense. There could well be office‑bearers in a society who, being newly appointed into office, would understand much less about its operation as compared with regular members. On the other hand, some members who are clearly not office-bearers may understand every aspect of how a society operates.

A better approach, so Mr Pang submits, is to look at the existence of various offices and whether a member has been appointed into such office, as opposed to being regular members.

230.  Turning to the facts, Mr Pang submits that the Principal Magistrate’s findings on office-bearers do not sit well with her findings on the existence of the Fund as a society:

(1)  She found that the Fund as a society was established by 15 June 2019 because A2 to A5 had organized themselves together to discuss how to raise funds. If that was the case, none of them could have held any “additional position” under her test, and could not have been office-bearers. It is unclear as a matter of logic, when and how they became “office‑bearers”.

(2)  As regards A1, the Principal Magistrate found that his agreement with the other appellants’ beliefs and goals and the conduct of affairs of the Fund to be regulated by the Trust Deed made him a member. It is difficult to understand how the same act could be construed as an agreement to be appointed into an office.

(3)  According to her findings, the Fund as a society would consist of only office-bearers but without any regular members; and any person who became a trustee would automatically also become an office-bearer. Such analysis would appear to be counter-intuitive.

231.  Mr Ho submits that the Principal Magistrate relied on the fact that the appellants are important decision-makers in carrying out operations of the Fund and in particular on the fact that A2 was its principal speaker. However, these facts are irrelevant. The only role A2 had ever assumed in relation to the Fund was her role as a trustee. It is trite that trustees could not be regarded as association of persons: Dick, ibid. A fortiori, they could not be regarded as a member of the committee or governing body under section 2(1) of the SO.

I3.  Our views

I3.1  What the term “office-bearer” entails

232.  The statutory definition in section 2(1) divides an “office‑bearer of a society” into three categories, namely:

(1)  any person who is the president, or vice-president, or secretary or treasurer of such society or any branch thereof;

(2)  any person who is a member of the committee or governing body of such society or any branch thereof; or

(3)  any person who holds in such society or any branch thereof any office or position analogous to any of those mentioned above.

233.  All the offices or positions mentioned are necessary for the administration or management of a society. Subject to the actual circumstances, the offices, the committee or the governing body are designated or created by the society’s constitution, which sets out the qualification, the appointment procedure, the duration of the term, the functions attached and other matters incidental to the performance of the functions. The offices, the committee and the governing body carry with them a degree of permanence to which successive people may be appointed. Where the society’s constitution does not designate or create any such office, committee or governing body, it becomes a question of fact whether any analogous office or position exists; and whether the individual concerned holds such an office or position.

234.  An office-bearer is usually a member of the society. But it is entirely possible that he is a non-member. For example, a society may engage a qualified accountant, who is a non-member, to be its treasurer; or a professional, also a non-member, to be its secretary. Ordinarily, an office-bearer is familiar with the affairs or the operations of the society. But, again, it is entirely possible that he does not have such familiarity when appointed to or assumed the office or position, and is expected to learn while on the job, as it were, like the accountant or the secretary mentioned in the examples we just gave.

I3.2  The appellants

235.  In the present case, the evidence shows overwhelmingly that each of the appellants was an office-bearer of the Fund as a society.

236.  Pursuant to the Underlying Agreement, the appellants came together for the purpose of running the Fund as the vehicle to appeal for, collect and distribute public donations for the objectives mentioned in the Trust Deed. They agreed to and did administer and operate the Fund together as stipulated.

237.  Under the broad governing structure as envisaged in the Trust Deed, the appellants would conduct and manage the Fund’s business and affairs like a management committee or governing body, making decisions and gave instructions regarding its operations, including, importantly, how the donations were to be distributed. The persons appointed under Clause 3.2 to be responsible for the Fund’s daily management, would carry out their instructions. That was what actually took place later. To adopt the language used in the statutory definition, each of the appellants held a position analogous to a member of “the committee or governing body” of the Fund as a society.

238.  The subsequent conduct of the appellants after the execution of the Deed also supports the above view. They entered into the ATDL Agreement to use the ATDL Account for receiving and distributing public donations. Such an important agreement is ordinarily made by those whose occupied important managerial position in a society. They also actively promoted the Fund.[160] Such conduct is also consistent with their managerial position in it as a society. In particular, as found by the Principal Magistrate, A2 assumed the active role akin to the spokesperson of the Fund, which supports her finding that she acted like the person‑in‑charge.

239.  The main point taken by Mr Pang and Mr Ho is that the appellants were mere trustees. As such, they could not be regarded as office-bearers. However, at this stage, we have already found that the Fund was a society, and the appellants agreed to and did operate the Fund as the vehicle mentioned. In so conducting the affairs of the Fund, they were its office-bearers as a society, quite apart from their role qua trustees. Further, contrary to Mr Pang’s argument, there is nothing inherently implausible or objectionable for all the members of a society to be its office-bearers at the same time, such as the Fund here. It is ultimately a matter of evidence.

I4.  Conclusion

240.  In conclusion, while we disagree with the Principal Magistrate’s reasons insofar as they are inconsistent with ours, we agree with her finding that each of the appellants was an office-bearer of the Fund as a society. All the contrary submissions advanced by counsel are rejected.

J.  Issue 7 – Is the common law defence of honest belief available?

241.  This issue is raised by A5 only. It concerns the mental requirement of a section 5C(1) offence as a matter of statutory construction.

J1.  On construction

242.  In Kulemesin v HKSAR (2013) 16 HKCFAR 195, Riberio PJ at [83] modified the five alternatives on the construction of statutory offences regarding the mental requirements first propounded in Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142, and reformulated them as follows:

“(a) First, that the mens rea presumption persists and the prosecution must prove knowledge, intention or recklessness as to every element of the offence (the First Alternative);

(b) Second, that the prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief (the Second Alternative);

(c) Third, that the presumption has been displaced so that the prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, he would not be guilty of the offence (the Third Alternative);

(d) Fourth, that the presumption has been displaced and that the accused is confined to relying on the statutory defences expressly provided for, the existence of such defences being inconsistent with the second and third alternatives mentioned above (the Fourth Alternative); and

(e) Fifth, that the presumption is displaced and the offence is one of absolute liability so that the prosecution succeeds if the prohibited act or omission is proved against the accused, regardless of his state of mind regarding the relevant elements of the offence in question (the Fifth Alternative).”

243.  Applying Kulemesin and Hin Lin Yee, and referring to HKSAR v Hong Kong Broadband Network Limited [2018] 2 HKLRD 1028, the Principal Magistrate held that on a proper construction, a section 5C(1) offence is one of absolute liability, subject to the statutory defence as provided for in section 5C(2). The common law defence of “honest and reasonable belief” does not apply. In other words, the Fourth Alternative applies. In any event, A5’s belief that she did not establish an association with others and did not know that registration was required, was objectively unreasonable.[161]

244.  Mr Lam does not dispute that section 5C(1) offence is one of absolute liability and that the presumption of mens rea has been displaced. In our view, he is right in doing so. As submitted by Mr Chau, in light of the legislative intent of the SO, the language used in section 5C(1), the regulatory nature of the offence and the relatively low degree of social obloquy, the mens rea requirement is displaced by necessary implication.

245.  On construction, Mr Lam further argues, as he did below, that the Second Alternative should apply. He complains that the Principal Magistrate erred because there is no inconsistency between the common law defence and the statutory defence. The statutory defence only operates in narrow and rare circumstances where one must satisfy all three requirements: (1) the office-bearer recognized that he was operating a society; (2) he had exercised due diligence to ensure compliance; and (3) the failure of compliance occurred for reasons beyond his control. The existence of such specialized defence is clearly not inconsistent with having a defence based on the belief that one has not created anything that resembles a society under the SO. In that scenario, the defendant would not have known that he has a duty to conduct due diligence on how to make compliance. Thus, the statutory defence and the common law defence cater to two alternative situations and two entirely different species of defendants. The language of sections 5(1) and 5C(1) is open to such construction accommodating the Second Alternative.

246.  We are unable to accept Mr Lam’s submission that the statutory defence is made out only if the office-bearer recognized that he was operating the society. There is no such requirement in section 5C(1). The criminal liability is imposed on the office-bearer by virtue of his status only. It is in no way dependent on his conduct or involvement in the operation of the society or his recognition that he was operating the society. There is accordingly no basis to suggest that there are two species of defendants justifying two different treatments in terms of defence.

247.  Moreover, when the purported common law defence advocated by Mr Lam is subject to a closer analysis, it becomes obvious that it cannot possibly stand. That defence first involves the plea that the accused had the honest and reasonable belief that he did not establish a society with others. However, for the purpose of section 5C(1), the prosecution only needs to prove that a local society had been established; that no application under section 5 had been taken out within one month of its establishment; and that the accused was at the material time an office‑bearer of the society. Whether he had established the society is simply irrelevant. So is his belief that he had not done so.

248.  The purported defence next involves the plea that the accused did not know that registration was required. It is in substance a plea of ignorance of the law. But it is trite that it is never a defence to a legal duty: HKSAR v Ho Loy (2016) 19 HKCFAR 110, per Fok PJ at [56].

249.  Finally, when section 5C(2) requires an accused to prove that he has exercised due diligence to ensure compliance by the society, it clearly contemplates that he had taken some positive steps in that regard. That requires something more than his mere honest and reasonable belief. And the sufficiency of the steps taken by him is to be viewed objectively. His subjective belief is irrelevant. It follows that those defences based on “mistaken but honest beliefs” mentioned in the Second and Third Alternatives are inconsistent with section 5C(2). So on a proper construction, the accused is confined to the statutory defence expressly provided for. The Fourth Alternative applies, as rightly found by the Principal Magistrate.

J2.  On evidence

250.  Even if the purported common law defence were available, the Principal Magistrate found that on evidence A5’s belief that she did not establish an association with others and therefore did not know that registration was required, was objectively unreasonable because of her role and involvement in the Fund.[162]

251.  Mr Lam argues that the Principal Magistrate erred because it can be reasonably accepted that a combination of persons in the format of the Fund is quite far from being a standard and typical example of what an ordinary person might think of as a society.

252.  However, as submitted by Mr Chau, since A5 did not give evidence, there is no evidential basis for her alleged belief. More importantly, when the evidence is viewed objectively in the round, no one in A5’s position could have reasonably and objectively believed that it was not a society that required registration under the SO.

J3.  Conclusion

253.  The Principal Magistrate is plainly right on this Issue. The purported common law defence is not available as a matter of statutory interpretation and must in any event fail on evidence.

K.  Disposition

254.  Having resolved all the Issues, we are satisfied that the prosecution has proved beyond reasonable doubt each element of the charge:

(1)  the Fund was a society within the meaning of the SO;

(2)  it was also a local society within the meaning of the SO as it was organized and established in Hong Kong;

(3)  it was established on 28 June 2019;

(4)  it had not applied for registration or exemption from registration under section 5(1) of the SO within one month from its establishment or at all;

(5)  each of the appellants had, since its establishment and at all material times of the charges, been an office-bearer of the Fund as a society; and

(6)  even if, contrary to our holding, the purported common law defence based on reasonable and honest belief advocated by A5 were available, it failed on the evidence.

255.  In consequence, we are satisfied that the prosecution has proved the charge against each of the appellants beyond reasonable doubt. The same verdict arrived at by the Principal Magistrate is correct and safe despite the errors she made in reasoning.

256.  The appellants’ appeals against conviction are all dismissed.