HKSAR v. CHEUNG KWAI CHOI (張貴財), CHOW NOK HANG (周諾恆)

FAMC Nos. 54 & 60 of 2018

[2019] HKCFA 13

FAMC No. 54 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 54 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 617 OF 2015)

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FAMC No. 60 of 2018

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 60 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 438 OF 2015)

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REASONS FOR DETERMINATION

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Chief Justice Ma (for the Appeal Committee) :

1.  On 4 June 2015, Cheung Kwai Choi (Cheung) and Chow Nok Hang (Chow) were convicted[1] of the offence of contravening an administrative instruction issued under s 8(3) of the Legislative Council (Powers and Privileges) Ordinance (the LCPPO),[2] and fines were imposed on them.

2.  On 14 August 2015, Yip Po Lam (Yip) and Wong Kan Yuen (Wong) were (together with another defendant who is not involved in the present application) convicted[3] of the same offence and sentenced to terms of imprisonment of two weeks and three weeks respectively.

3.  All four appealed and by consent the appeals in both cases were dealt with together since similar issues arose.[4] The appeals were dismissed by Albert Wong J.[5]

4.  Relevant provisions of the LCPPO :-

 (1)  Section 8 provides :-

“8. Regulation of admittance to precincts of the Chamber

(1) Subject to this section, sittings of the Council shall be open to the public. …

 (3) The President may from time to time, for the purpose of maintaining the security of the precincts of the Chamber, ensuring the proper behaviour and decorum of persons therein and for other administrative purposes, issue such administrative instructions as he may deem necessary or expedient for regulating the admittance of persons (other than members or officers of the Council) to, and the conduct of such persons within, the Chamber and the precincts of the Chamber.”

 (2)  “Chamber” and “precincts of the Chamber” are defined in s 2 as follows :-

“Chamber (會議廳) means the Chamber in which the proceedings of the Council are conducted, and any galleries and places therein provided for members of the public and representatives of the press, television and radio, and includes any lobbies, offices or precincts used exclusively in connexion with the proceedings of the Council; …

precincts of the Chamber (會議廳範圍) means the Chamber and offices of the Council and any adjacent galleries and places provided for the use or accommodation of members of the public and representatives of the press, television and radio, and subject to any exceptions made by the President under subsection (2) includes, during the whole of any day the Council or a committee is sitting, the entire building in which the Chamber is situated and any forecourt, yard, garden, enclosure or open space adjoining or appertaining to such building and used or provided for the purposes of the Council;”

 (3)  Section 20(b) is the offence creating provision under which the applicants were charged :-

“20. Offences by persons entering or remaining in precincts of Chamber

Any person, other than a member or officer of the Council, who — …

(b) contravenes any administrative instructions issued under section 8(3), or any direction given thereunder, regulating the admittance of persons to or the conduct of persons within the Chamber or the precincts of the Chamber,

 commits an offence and is liable to a fine of $2,000 and to imprisonment for 3 months.”

5.  Administrative Instructions for Regulating Admittance and Conduct of Persons were issued by the President under s 8(3) of the Ordinance (the Administrative Instructions).[6] Section 11 of the Administrative Instructions (AI s 11) states :-

“11. Requirement for orderly behaviour

 Persons entering or within the precincts of the Chamber shall behave in an orderly manner and comply with any direction given by any officer of the Council for the purpose of keeping order.”

The applicants were charged with contravening this Instruction by not behaving in an orderly manner.

6.  The facts relevant to the applicants in relation to the offences with which they were charged are contained in detail in the Statements of Findings of the Magistrates and in the judgment of Wong J.  Essentially :-

(1) The convictions stemmed from two separate incidents, on 6 June 2014 and 13 June 2014, both taking place at the Legislative Council Complex when the Finance Committee of the Legislative Council (the FC) was sitting.

(2)  On 6 June 2014, the FC was holding a meeting at which the funding application in relation to the North East New Territories Development Proposal (the NENT Proposal) was being discussed.  This was apparently a controversial topic. Yip, without either permission or a visitor’s pass, together with others entered the lobby of the Legislative Council complex[7] at about 7:21 pm and remained there for five hours.  She delivered two speeches and despite being asked to leave, refused to do so.  Although her conduct was peaceful, the effect of her speeches was to encourage others to continue their actions in remaining at the lobby and also blocking the doors allowing access into and exit from that area.  Wong was amongst those who blocked the doors, and resisted attempts by the police and security staff to take action in relation to the doors.  Their actions were said to be obstructive.

(3)  On 13 June 2014, the FC continued to hold a meeting in respect of the NENT Proposal.  While the meeting was being held, at the car park of the Legislative Council Complex,[8] Cheung with the assistance of Chow hung four banners (measuring 8 m x 2 m) from the canopy of that area, ignoring warnings from security staff.  This was regarded by both the Judge and the Magistrate as posing dangers to themselves as well as others.

7.  The four applicants sought leave to appeal to the Court of Final Appeal.[9] After hearing counsel for the applicants, we dismissed the applications for leave to appeal, stating that we would hand down our Reasons for Determination at a later stage.

8.  According to the Form B applications for leave to appeal, leave was originally sought on five matters. At the hearing before us, one issue was abandoned, leaving four issues in respect of which leave to appeal were sought :-

 (1)  Yip[10] raised an issue regarding the jurisdiction to grant bail in relation to appeals to the Court of Final Appeal.  After Wong J had dismissed her appeal, an application for bail was made pending her application for certification.[11] The Judge refused on the basis that for the purposes of s 34 of the HKCFAO, there was not at that stage any pending appeal to the CFA.  Mr Lee SC accepted that this issue was academic for his client but nonetheless sought leave on the basis that it was an important issue which ought to be resolved.  (Issue 1).

(2) All four applicants submitted that AI s 11 was unconstitutional.  Rights under Article 27 of the Basic Law and Articles 16 and 17 of the Bill of Rights being engaged, it was contended that AI s 11 constituted a disproportionate restriction of their rights. Wong J certified the following question as being one of great and general importance :-

“Whether the offence under section 20(b) of Legislative Council (Power[s] and Privileges) Ordinance, Cap. 382 for contravening section 11 of the Administrative Instructions for Regulating Admittance and Conduct of Persons, Cap. 382A constitutes a disproportionate restriction on the Applicant’s rights to freedom of speech, assembly and demonstration under Article 27 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights.” (Issue 2).

 (3)  It was submitted on behalf of the applicants that in order to secure a conviction on the basis of a failure “to behave in an orderly manner” for the purposes of AI s 11, it had to be shown that the relevant behavior actually disrupted or disturbed either Legislative Council proceedings or the right of the public in observing such proceedings.  As there was no evidence of any disruption or disturbance in these respects, the offence was not made out.  This issue involved construing AI s 11.  (Issue 3).

 (4)  Another point of construction arose regarding AI s 11.  It was argued that any offence under that provision involved the proof of two elements : not only must it be proved that the applicants “failed to behave in an orderly manner”, it also had to be shown that there was a failure to “comply with any direction given by any officer of the [Legislative] Council for the purpose of keeping order”.  (Issue 4).

9.  We agreed with the respondent[12] that none of these issues raised arguable grounds of appeal.

10.  Issue 1 :-

(1) Section 34(1) of the HKCFAO[13] confines the jurisdiction to grant bail to an applicant who is appealing or applying for leave to appeal or who is in custody pending the determination of an appeal.  Until the relevant person has taken the first step to appeal, which involves applying for leave to appeal (as to which see s 33 of the Ordinance and Rule 4 of the Hong Kong Court of Final Appeal Rules[14]), the jurisdiction to grant bail under s 34(1) does not arise.

(2) If it is sought to appeal to the Court of Final Appeal and to apply for bail as soon as possible, it is obviously incumbent on the applicant and his or her legal advisers to act expeditiously in applying for leave to appeal.  It is not necessary to seek certification before applying for leave to appeal.

(3)  We also agreed that this issue was in any event academic in the circumstances of the case.

11.  Issue 2 :-

 (1)  The applicants contended that if it was sufficient under AI s 11 merely to prove that there was a failure “to behave in an orderly manner” without more,[15] then this provision was unconstitutional in failing to satisfy the proportionality test, in particular the 3^rd and 4^th limbs of that test.  The 4 limbs of the proportionality test were articulated in Hysan Development Co Ltd v Town Planning Board.[16]

 (2)  We are content to assume for present purposes that the rights set out in Article 27 of the Basic Law and Articles 16 and 17 of the Bill of Rights were engaged so that the proportionality test is properly applicable.  This has been the common assumption throughout the proceedings and in the lower courts.  No argument has been raised casting doubt on whether the applicants, in contending that their rights carried with them also a right not to behave in an orderly manner, could be said to have properly engaged protected rights.

 (3)  As far as legitimate aim or purpose is concerned, this is clear from s 8(3) of the LCPPO : administrative instructions can be issued for the purpose of maintaining security, ensuring the proper behaviour and decorum of persons in the precincts of the Chamber and other administrative purposes.

 (4)  Further, in HKSAR v Fong Kwok Shan Christine,[17] the Court of Final Appeal considered AI s 11 in detail, dealing specifically with the issue whether that provision satisfied the “prescribed by law” requirement of Article 39 of the Basic Law and Article 16 of the Bill of Rights.[18] In dealing with the proper construction of the provision, the following was said in relation to its purpose :-[19]

“82. In the present situation, the clear purpose of AI s. 11 is to set a standard of orderly behaviour on the part of visitors congruent with LegCo’s institutional and social importance. Its context shows that it is part of a statutory framework aimed at creating a secure and dignified environment in the LegCo complex conducive to the legislature carrying out its constitutional functions at its sittings without disruption or disturbance, while permitting members of the public to observe the proceedings within the Chamber as an open legislative process. The section’s context is provided by its mother Ordinance, the LCPPO, and the other sections of the Administrative Instructions.”

 (5)  There is no doubt that AI s 11 has as its objective these purposes and is rationally connected to them.

 (6)  As to whether it satisfies the no more than necessary test (the 3^rd stage in the proportionality analysis), it was contended that AI s 11 went beyond what was necessary in terms of both the type of behaviour targeted as well as location.  We disagree; we have no doubt it does satisfy this test.  It is important to bear in mind that AI s 11 does not totally bar persons exercising their rights of expression or free speech : it is applicable only within “the precincts of the Chamber” and even then only prevents persons from behaving in a disorderly manner in the context of the concern of keeping order.  Whether or not in any given case a person can be said to be misbehaving in this way will depend on the circumstances and it should be left to the trial judge to determine having regard to the time, place and circumstances of the conduct in question.[20] Given the purposes of AI s 11 as earlier set out, this requirement of behaving in an orderly manner – and only when Legislative Council proceedings are ongoing[21] and in those areas of the Legislative Council complex where persons with legitimate cause or business could be expected to be present during this time – cannot be said to be a disproportionate response.  This is so whichever of the two tests is adopted.[22]

 (7)  The 4^th element in the proportionality exercise is also satisfied.  This is for the same reasons as discussed above.  The encroachment on the rights of the applicants are relatively limited whereas the purposes of AI s 11 are clear in defining the societal benefits of the measure.

 (8)  Notwithstanding that the Judge had certified this issue to involve a question of great and general importance, on analysis, this issue is not reasonably arguable.  The facts of the present case demonstrate clearly in our view just why AI s 11 is needed for the purposes as earlier stated.

12.  Issue 3 :-

 (1)  In our view, the construction urged on us by Mr Tam (but relied on by all the applicants) is not reasonably arguable.

 (2)  It is notable at the outset here that the limitations which, it was submitted, should be read into the provision are simply not there.

 (3)  Further, the submissions proceed on a misunderstanding of what was set out in the passage from Fong Kwok Shan Christine.[23] Ribeiro PJ was not there setting out the elements of what was required to be proved in relation to AI s 11 at all : he was merely referring to the relevant context and purpose in relation to that provision.  The references to the legislature carrying out its constitutional functions without disruption or disturbance and permitting the public to observe proceedings were made to show the context of AI s 11 within its statutory framework.  Its purpose (apart from what is stated in s 8(3) of the LCPPO) was to set a standard of orderly behaviour “congruent with LegCo’s institutional and social importance”.  The effect of AI s 11 imposing a requirement that persons must behave in an orderly manner is consistent with both the statutory context in which it is found and its purpose.

13.  Issue 4 :-

 (1)  When one looks at the context and purpose of the provision, it is extremely difficult to see why it should be necessary to show both a failure to behave in an orderly manner and a failure to comply with directions.  One can quite easily think of situations in which either failure would undermine the purposes of that provision.  It is wrong to elide the two situations and this was precisely what the Court of Final Appeal held in Fong Kwok Shan Christine.[24]

 (2)  Reference was made to s 20(b) of the LCPPO to support the applicant’s submissions. With respect, we fail to see this.  On the contrary, that provision supports the opposite view : an offence is committed if there is any contravention of any administrative instructions issued under s 8(3) or any directions given “thereunder”.

14.  For these reasons, the applications for leave to appeal were dismissed.