CHEUNG TAK WING v. DIRECTOR OF ADMINISTRATION

CACV 577/2018

[2020] HKCA 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 577 OF 2018

(ON APPEAL FROM HCAL 136/2014)

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JUDGMENT

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The Court:

1.  This is an appeal by the Director of Administration (“the Director”) against the judgment of Au J (as he then was) dated 19 November 2018, by which he granted the applicant’s application for judicial review, declared that the scheme set up and implemented by the Director requiring applications to be made for use of the East Wing Forecourt of the Central Government Offices at Tim Mei Avenue (which the applicant referred to as the “Civic Square”) for public meetings and processions (“the Permission Scheme”) was unconstitutional for being inconsistent with Article 27 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights, quashed the Director’s decision dated 17 September 2014 to refuse the applicant’s application for permission to use the Forecourt for the holding of a public meeting under the Permission Scheme, and ordered the Director to pay the costs of the application, to be taxed if not agreed, with certificate for two counsel, with the applicant’s own costs being taxed in accordance with legal aid regulations.

2.  Having heard the appeal on 14 and 15 August 2019, we reserved judgment.  The judgment that we now give is the judgment of the Court, to which all of its members have contributed.

A.     Background Facts

3.  The summary of the largely uncontroversial background facts which follows is based on the comprehensive summary contained in the judgment below.

A.1    The Central Government Offices and the Forecourt

4.  Since about late 2011, the Central Government Offices (“CGO”), Chief Executive Office (“CEO”), Legislative Council Complex (“LCC”) have occupied a site in Admiralty district that is bounded by Tim Wa Avenue to the west, Tim Mei Avenue to the east, Lung Wui Road to the north and Harcourt Road to the south.  The site was allocated to the Director under a Permanent Land Allocation.

5.  The CGO consists of two wings, namely the East Wing and the West Wing.  It is, as its name suggests, the main office complex of the HKSAR Government, where many of the key departments of the Government are housed, and many of the Government’s key functions performed.

6.  The forecourt with which these proceedings are concerned is located immediately outside the East Wing, on its eastern side, between the East Wing and Tim Mei Avenue.  It is designed as an integral part of the CGO, and the Director has management responsibility in respect of it.  Although it has been referred to by the applicant, and in the judge’s order, as the Civic Square, we shall refer to it in this judgment (as the judge did in his judgment under appeal) as “the Forecourt”, that being how it is described in various plans, and in the documentation relating to the Permission Scheme.

7.  The physical layout of the Forecourt is as follows.  It consists of a paved, largely circular, driveway with an entrance and exit at the south-east corner of the Forecourt for vehicular access to the East Wing entrance of the CGO.  This entrance is controlled by a drop bar barrier.  There is a pavement for pedestrian traffic that runs along the south side of the Forecourt from the vehicular entrance/exit, which continues along the west side of the Forecourt in front of the entrance to the CGO, and terminates half way along the north side.  Immediately to the north of the Forecourt (but not forming part of it) is an entrance/exit and roadway providing vehicular access to the LCC.  Pedestrians are able to access the LCC through the Forecourt, by following the pavement around to the north side, where there is a pedestrian crossing across the access road for the LCC.  In the middle of the Forecourt, there is a round platform with flagstaffs, which are used for the daily raising and lowering of the national and HKSAR flags.

8.  Initially, there was no barrier (other than a low parapet wall) between the east side of the Forecourt and Tim Mei Avenue, and the Forecourt was easily accessible to pedestrians from Tim Mei Avenue.  However, this changed from 10 September 2014 onwards, with the erection of a metal fence so as to separate the Forecourt from the public pavement along Tim Mei Avenue.  Although the fence consists of railings, and is not solid, so that it is possible to see and hear through the fence, the consequence of its erection is that pedestrians can no longer easily access the Forecourt from Tim Mei Avenue.  The fence was erected between 17 July 2014 and 10 September 2014, as a security enhancement measure following a number of unauthorised demonstrations between 2012 and mid-2014, some of which involved demonstrators camping (without authorisation) in the Forecourt for an extended period, causing disruption to access for vehicles and pedestrians and giving rise to environmental hygiene concerns, and other occasions on which there were attempts to gain access to the Forecourt or the adjoining LCC forcibly.  As a result of these incidents, the Director considered it desirable to enhance the security of the Forecourt by the erection of the fence.

9.  The Forecourt serves a number of functions:

(1)     It serves the CGO as a vehicular circulation area for passenger drop off and pick up, for persons arriving by car at the East Wing entrance of the CGO.

(2)     The pavement in the Forecourt is also used as a passageway by persons working at, or visiting, the CGO and the LCC.  This passageway provides a convenient covered means of accessing the CGO and the LCC from Admiralty MTR station by means of a covered footbridge across Harcourt Road, from which one can take an escalator on the east side of the East Wing down to the Forecourt, so as to reach the pavement of the Forecourt and thus access the CGO and LCC.

(3)     After the erection of the metal fence, the daily opening hours of the pedestrian passageway were limited to the period from 6 am until 11 pm.  However, Legislative Council (“LegCo”) members, personnel with valid staff identity cards, and persons with media permits were allowed access even outside these hours.  When circumstances (such as security reasons or specific operational requirements) called for it, public access to the pavement as a means of reaching the footbridge would be suspended.

(4)     Additionally, subject to an application being made to, and approval being obtained from, the Director pursuant to the Permission Scheme, public order events (“POEs”) were permitted to be held at the Forecourt on Sundays and public holidays during specified hours between 10 am and 6:30 pm.  (with some flexibility being afforded to allow for set up and clearance before and after the event in question).  Applications were processed on a first come first served basis.

(5)     Public access to the flagstaff platform was restricted at all times.  The platform would be cordoned off with barriers, and security guards deployed, when POEs were taking place.

A.2    The Permission Scheme

10.  As noted above, the CGO has been situated at the Tamar site since the latter part of 2011.  Prior to that, the CGO was for many years located at Lower Albert Road.  The open compound of the CGO at Lower Albert Road was allocated to the then Director in 2002.  The then Director recognised the need to facilitate the expression of opinions and views by members of the public at or near the CGO, and with this in mind, implemented the following:

(1)     Measures of access control were introduced by relocating the designated public activity area (“DPAA”), which had been located in the open compound, to an area outside the West Gate to the CGO (near Battery Path), following which access to the compound was limited to members of the public who had business with one or other of the offices at the CGO.

(2)     The holding of public meetings or processions at the open compound was allowed only with prior permission, under an arrangement that was essentially the same as the Permission Scheme.  No public meetings or processions were allowed on working days (Mondays to Saturdays).  Such events could only be held inside the open compound on Sundays and public holidays, and even then, the prior permission of the Director was required.  It does not seem that this arrangement was ever the subject of any challenge by way of judicial review proceedings, or of any particular complaint.

11.  Prior to the commissioning of the CGO at the Tamar site, on 29 August 2011, the Government presented to the LegCo Panel on Security its proposed arrangements for members of the public to conduct POEs at the Tamar site, by way of an information paper on “Security Arrangements and Handling of Public Meetings at the Central Government Offices and during Visits of Political Dignitaries to Hong Kong”.  This stated that:

(1)     Members of the public could submit petitions to the Government outside the Forecourt.

(2)     Members of the public could conduct POEs in the Forecourt on Sundays and public holidays upon application to and approval from the Administration Wing (i.e. subject to the Permission Scheme).

(3)     Individual members of the public or representatives or organisations could enter the designated area at the main entrance of the CEO for the purpose of handing petition letters to the Chief Executive and/or members of the Executive Council (“ExCo”) on days when ExCo held its regular meetings.

12.  These arrangements have been implemented since the CGO was commissioned in late 2011.

13.  As mentioned in paragraph 9(4) above, under the Permission Scheme, members of the public may apply to the Director for permission to hold public meetings or processions in the Forecourt on Sundays or public holidays during specified hours between 10 am and 6:30 pm, on a first come first served basis.  Such permission is required regardless of the number of participants in the meeting or procession. The application process involves the submission of an application at least two days prior to the proposed event, by filling in a form which is available from the Administration Wing’s website.  The application form is accompanied by Guidance Notes and there is also a separate document called Conditions of Use, the contents of both of which are set out below.  All of these are available on and can be downloaded from the Administration Wing’s website.

14.  The Guidance Notes are formally titled “Applications for Permission to Use the East Wing Forecourt of the Central Government Offices at Tim Mei Avenue, Tamar for Public Meetings/Processions and Submission of Petition Letters”.  They were issued in December 2012, and provide as follows:

“ Central Government Offices at Tamar

The Central Government Offices (CGO), located at Tamar, is government property and the land on which it occupies has been allocated to the Director of Administration, who is required to manage the area and premises in a safe, clean and proper manner. The CGO is not a public place and access to it is permitted only with the prior consent of the Director of Administration.

Use of East Wing Forecourt for Public Meetings/Processions

2. The Administration recognizes and accepts the need to facilitate public expression of opinions whilst maintaining the orderly and effective operation of the CGO. To strike a balance between these considerations, the East Wing Forecourt of the CGO is open to the public on Sundays and public holidays from 10:00 a.m. to 6:30 p.m. for holding public meetings/processions upon application to the Director of Administration and the latter’s approval. Applications can be submitted in accordance with the application procedures set out in paragraphs 3-6 below.

Application procedures

3. Under the Public Order Ordinance (Cap. 245), a public meeting of more than 50 persons and a public procession of more than 30 persons must be notified to the Commissioner of Police. Interested groups who intend to hold public meetings of more than 50 persons, or public processions of more than 30 persons, inside the East Wing Forecourt are required to notify the Commissioner in accordance with the Ordinance.

4. Access to the East Wing Forecourt is permitted only with the prior consent of the Director of Administration. Applications for holding a public meeting/public procession inside the East Wing Forecourt, irrespective of the number of persons involved, should be submitted to the Director of Administration using the relevant application form. The duly completed application form should be forwarded to the Director of Administration by fax, by hand, or by post, and should reach the Director of Administration at least two clear working days prior to the event. The applicant will be notified of the result within these two clear working days.

5. Any request to enter the East Wing Forecourt to express opinions or conduct public activities will be handled as follows:-

(a) the Director of Administration will seek advice from the Police as to potential threat to public order and public safety which may arise should such request be granted; and

(b) once the Director of Administration gives permission for access to specified areas within the East Wing Forecourt the areas will become public places under the Public Order Ordinance during the specified hours.

6. Copies of this guidance notes and application form can be obtained by calling 2810 2009 or downloaded from the Administration Wing’s website at

http://www.admwing.gov.hk/eng/public_service/pservices.htm.

Submission of Petition Letters outside East Wing Forecourt

7. Members of the public can submit petition letters to the Government on a section of the pavement of the Tim Mei Avenue, outside the East Wing Forecourt.  The arrangements in paragraph 3 above should also be observed, where applicable.”

15.  The Conditions of Use are formally titled “Conditions of Use of the East Wing Forecourt of the Central Government Offices at Tamar”.  They provide as follows:

“ Introduction

The Central Government Offices (CGO), including the East Wing Forecourt (hereinafter referred to as “the Forecourt”) are government properties, and the land on which they occupy has been allocated to the Director of Administration. The CGO is not a public place and access to it is permitted only with the prior consent of the Director of Administration. The Forecourt is used primarily as a vehicular circulation area for picking up/dropping off of passengers. It is not a public open space.

Use of the Forecourt as a Pedestrian Passageway

2. The Forecourt also provides a pedestrian passageway for members of the public visiting CGO or the nearby Legislative Council (LegCo) Complex. The Public Entrance and the Press Entrance of CGO are located on the East Wing ground floor. Visitors may access the Forecourt via the escalator from the elevated walkway on the podium level, or from Tim Mei Avenue or the LegCo Complex on the ground level.

3. The daily opening hours of the Forecourt as passageway are from 6:00 am to 11:00 pm. It is closed to general access between 11:00 pm and 6:00 am. Only LegCo Members and personnel holding valid staff identity cards/media permits issued by CGO or LegCo will be allowed access during the closing hours.

4. Public access to the Forecourt may be suspended during the opening hours without prior notice in case of emergency or to meet specific operational or security needs of CGO. The Administration Wing may designate certain areas in the Forecourt for the exclusive use of specific purposes, with proper demarcation and protection in such a manner as it sees fit.

5. Visitors are generally permitted to use the Forecourt as passageway only, and visitors who use the Forecourt for any other purpose (for instance, carrying out public activities) without permission from the Director of Administration will be regarded as trespassers and their continued presence regarded as unauthorised. Visitors of the Forecourt are advised to take good care of their personal belongings and they should take such belongings with them when leaving the Forecourt area. Any unattended object(s) found on the premises managed by the Administration Wing, including the Forecourt, will be dealt with as we see fit. The Administration Wing shall not be held liable for any loss of or damage to any such unattended object(s).

6. Visitors gaining access to the Forecourt are required to observe and comply with these conditions of use and any other directions as may be given by the security guards, staff of the Administration Wing or other personnel as authorised by the Director of Administration for purposes of public safety, public order, crowd/access control, or such other measures as may be necessary for management of the Forecourt.

7. The Administration Wing reserves the right to refuse access to the Forecourt by any person or to require any person who has been admitted to leave the Forecourt, if the person has failed to comply with any of these conditions of use, or behaves in a disorderly, offensive or immoral manner, or commits an offence.

Use of Forecourt for Public Meetings/Processions

8. Subject to prior application in writing to and approval of the application by the Director of Administration, the Forecourt may be made available to the public on Sundays and public holidays from 10:00 am to 6:30 pm for holding public meetings/public processions. The application form and the conditions of use of the Forecourt for public meetings/processions may be obtained from the Administration Wing or downloaded from its website at http://www.adminwing.gov.hk.

9. Under the Public Order Ordinance (Cap 245), prior notice of a public meeting of more than 50 persons and a public procession of more than 30 persons must be given to the Commissioner of Police. Applicants who intend to hold public meetings of more than 50 persons or public processions of more than 30 persons using the Forecourt as a venue are required to confirm that such notification to the Police has been/will be made in their application form.

Submission of Petition Letters to Government

10. A section of the pedestrian pavement on Tim Mei Avenue outside the Forecourt has been designated as a public activities area. Members of the public may at any time hold public meetings or submit petition letters to the Government there subject to their compliance with the relevant provisions of the Public Order Ordinance (Cap 245) governing the holding of public meetings/processions.

Enquiry

11. Any enquiries on the use of the Forecourt can be directed to the Administration Wing by telephone (Tel. no. 2810 2861) or email (admwing@cso.gov.hk).”

A.3    The Designated Public Activities Area

16.  As mentioned in paragraph 10 of the Conditions of Use, a section of the public pavement on Tim Mei Avenue outside the Forecourt, was designated as a DPAA, at which members of the public could hold demonstrations and public meetings, subject to compliance where necessary with the provisions of the Public Order Ordinance (“POO”), and for the representatives of policy bureaux to receive petitions from members of the public.  Such designation was not a designation made under section 10 of the POO of a designated public area (which is for a different purpose, see section 11(2) of the POO and the Public Order Ordinance (Designated Public Areas) (Consolidation) Order Cap 245F), but was one that was designated by an administrative measure.  The measure was first introduced in 2002 after the Right of Abode saga to facilitate POEs to be held outside the West Gate of the then CGO without compromising the security and interests of others or causing undue obstruction or inconvenience.  It was continued after CGO was relocated to the Tamar Site with a new designation of DPAA at Tim Mei Avenue.  We were told by counsel that the current DPAA has an area of about 85 square metres, which is of course smaller than the area occupied by the Forecourt (which is about 1000 square metres).

B.     The Proceedings Below

B.1    The Application and its refusal

17.  The applicant is a press photographer.  On 20 October 2013, he began a protest at the Forecourt against a decision by the Chief Executive in Council not to grant a domestic free television programme service licence to Hong Kong Television Network Limited.  This protest lasted until 3 December 2013, with the applicant staying in the Forecourt overnight every night, sleeping in a tent he had put up in the Forecourt.  When the Government published its consultation document dealing with the 2017 selection of the Chief Executive and the 2016 formation of LegCo, he changed the subject of his protest to a demand for universal suffrage.  This protest lasted from 4 December 2013 until the Forecourt was closed on 16 July 2014 to enable the construction of the fence (referred to in paragraph 8 above) to begin, and throughout, the applicant remained at the Forecourt between about 9:00 am and 9:00 pm daily.

18.  Upon the re-opening of the Forecourt on 17 September 2014, the applicant submitted an application for permission to use the Forecourt for a public meeting, expected to be attended by about 10 persons, between 9:00 am and 7:00 pm on 19 September 2014 (a Friday).  By a letter dated 19 September 2014, the Director refused the application.  The sole basis on which the application was refused was that the intended public meeting was to take place on a weekday (contrary to the terms of the Permission Scheme, which, as we have seen, only allowed for the possibility of public meetings or processions at the Forecourt on Sundays and public holidays).

B.2    The application for Judicial Review

19.  On 17 October 2014, the applicant applied for leave to bring judicial review proceedings to challenge the constitutionality and lawfulness of both the Permission Scheme and the Director’s decision to refuse his application.  In his Form 86 (which was amended on 2 August 2017), he raised the following grounds for judicial review:

(1)     The Permission Scheme (and consequently the Decision) was unconstitutional as it amounted to an unjustified restriction on the applicant’s rights to freedom of expression and peaceful assembly, provided for under Article 27 of the Basic Law and Articles 16 and 17 of the Bill of Rights, as it was not prescribed by law (“the Prescribed by Law ground”);

(2)     The Permission Scheme (and consequently the Decision) was unconstitutional as the restrictions on the applicant’s aforesaid rights were unjustified as they failed to satisfy the proportionality test (“the Proportionality ground”)

(3)     The Permission Scheme (and consequently the Decision) was unlawful and irrational as it was made under an error of fact (“the Illegality Ground”), the error in question being that the Director regarded the Forecourt as private land, whereas it should properly have been regarded as a public place, having regard to its function (as part of Government offices), and the fact that it had been represented by the Government as a place which was open to the public.

B.3    The hearing below

20.  The hearing before the Judge took place on 6 September 2017.  On 4 October 2017, after the hearing had concluded but before judgment was handed down, the Court of Final Appeal handed down its decision in HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425.  The Judge rightly regarded the judgment as one which would have an important impact on his decision, and accordingly directed the parties to file further submissions to address the CFA’s judgment.  The parties filed such written submissions on 31 October 2017.

21.  It was common ground in the court below that the Forecourt was Government property, and that the Director had the power to put in place a scheme to govern its use.  The issue between the parties was whether the particular scheme devised by the Director (i.e. the Permission Scheme) was constitutional and/or lawful and rational.

B.4    The Judge’s judgment

22.  In his judgment, the Judge held that in Fong Kwok Shan Christine, the Court of Final Appeal rejected the argument that the constitutionally protected rights of expression, assembly and demonstrated were not engaged where it was sought to exercise them on property belonging to another (whether such property was state owned or privately owned).  Rather, such rights were (or at least could be) engaged, and what had to be considered was whether the restrictions placed on them were constitutionally justifiable, by asking whether they were prescribed by law and were proportional.  He therefore rejected the submission made by the Director that the said rights were not engaged at all.

23.  The Judge then went on to consider the challenge to the constitutionality of the Permission Scheme. He rejected the contention that it was not “prescribed by law”, holding that the Director’s proprietary right to manage the Forecourt, which was based on the common law, and which had been the subject of further definition in Fong Kwok Shan Christine, coupled with the terms of the Permission Scheme, which was publicly accessible, were sufficient to satisfy the prescribed by law requirement, as a person seeking to use the Forecourt for the purpose of exercising his rights of freedom of expression, assembly or demonstration would (if necessary with the assistance of legal advisers) be able, with a reasonable degree of certainty, to ascertain the boundaries of his ability to do so and the risks attendant on doing so.

24.  However, he upheld the objection based on proportionality, holding that Fong Kwok Shan Christine made clear that it was necessary to have regard to the manner, form and impact of a demonstration at a given site in order to decide whether the proportionality test was satisfied in respect of the restriction under consideration.  In the present case, the Judge considered that the blanket nature of the restriction prohibiting access to the Forecourt for the purpose of holding a demonstration on working weekdays and Saturdays, and the need for permission in all cases where a demonstration was proposed on a Sunday or public holiday (without reference to its nature or size), and the fact that such requirements admitted of no exceptions (features which were illustrated by the fact that the only reason given for refusing the applicant permission for his proposed demonstration was that it was intended to take place on a weekday), meant that the Director was unable to show that the restrictions were no more than necessary to achieve the legitimate aim of ensuring that the Government was able to carry out its normal operations at the CGO without undue disruption.  Put another way, the failure to have regard to the nature and size of the proposed demonstration was fatal to any suggestion that the restriction did not go further than was necessary to achieve the legitimate aim identified.  The Judge rejected the submission that the existence of other, alternative, means for demonstrators to stage protests or present petitions other than in the Forecourt (for example, in the DPAA in Tim Mei Avenue) should affect the proportionality assessment in the Director’s favour, on the basis that the rights embodied in freedom of expression, assembly and demonstration extended to the location and manner of the proposed exercise of such freedoms, and that while there was no absolute right to do so at any particular location, restrictions on doing so at particular locations, such as the Forecourt, must be subject to the proportionality test, which was not satisfied in this case for the reasons he had given.

25.  In relation to the Illegality Argument based on alleged error of fact, the Judge took the view that the complaint as pleaded, which was that the Director had mistakenly regarded the Forecourt as private land over which she had control, when it should have been regarded as a public place, was no longer relevant or valid, since the approach of distinguishing between public and private places when considering the lawfulness of restrictions imposed on protected freedoms (such as those of expression and assembly) being exercised at a particular location was no longer valid in the light of the CFA’s judgment in Fong Kwok Shan Christine.

26.  However, the Judge held instead that in the light of Fong Kwok Shan Christine, the Illegality ground could be sustained on the basis that there had been an error of law.  In his view, the Director had made an error of law by adopting the premise that as the landholder in respect of the Forecourt, she was entitled in principle to exclude anyone from entering it to exercise the rights of freedom of expression and assembly, and that the Permission Scheme having been formulated on such a premise was tainted with illegality (or based on an error of law) and was therefore vitiated.

C.     This Appeal

27.  By a Notice of Appeal dated 13 December 2018, the Director appealed against the judgment, and sought the dismissal of the application for judicial review, or alternatively, a declaration that the Permission Scheme was lawful except to the limited extent that it restricted the grant of permission to Sundays and public holidays between the hours of 10:00 am and 6:30 pm.

C.1    The Director’s contentions

28.  The Director contended that the Judge had erred in relation to both the Illegality and Proportionality arguments on the basis of which he found in favour of the applicant.

29.  As to the Illegality argument, the Director contended that the Judge erred in holding that that the Director had committed an error of law in formulating the Permission Scheme by “starting off with the premise that, as a landowner, he could in principle exclude anyone from entering the place to exercise the rights of freedom of expression and assembly”, because:

(1)     This ground had not been pleaded in the applicant’s Form 86 and the Director had not had a proper opportunity to address it.

(2)     The question was not whether the decision maker had properly considered whether or not the applicant’s rights would be violated, but whether they were in fact violated.

(3)     The Judge had mischaracterised the Director’s approach in establishing the Permission Scheme, as the fact that the Forecourt was private property, and not a public place, was merely one factor that had been taken into account by the Director in formulating the Permission Scheme, along with other relevant factors such as the nature and function of the location.

(4)     The Judge had misapplied the CFA’s decision in Fong Kwok Shan Christine, in that while the CFA had rejected the suggestion that the rights of expression and assembly were to be treated as not engaged where they were sought to be exercised on private property by reason of the owner’s interests in the property, it had not determined that it was unlawful for such an owner to take as a starting point the premise that he could in principle exclude persons from entering to exercise those rights.

30.  The Director also contended that the Judge further erred in holding that members of the public were entitled to exercise the rights of freedom of expression and assembly at the Forecourt, and in doing so, had failed to have regard to the Government’s property rights which were protected by Articles 6, 7 and 105 of the Basic Law, the effect of which, particularly when considered in conjunction with the nature of the premises (as an integral part of the CGO which was the Government’s principal offices), meant that there was no unfettered right on the part of the public to have access to the Forecourt to exercise the rights of freedom of expression and assembly.  In the written and oral submissions put forward by Mr Yu SC for the Director, reliance was additionally placed on the rights established by Article 29 of the Basic Law, pursuant to which the home and other premises of Hong Kong residents are inviolable.  Mr Yu submitted that this right extended to the workplaces of Hong Kong residents, and to the curtilages of such workplaces, and as such extended to the Forecourt as an integral part of the CGO which was the workplace of a substantial number of civil servants.

31.  As Mr Yu developed this argument, it appeared to be put forward as an (important) aspect of the Proportionality argument, which called for a consideration of how the court should conduct the proportionality analysis when competing constitutionally protected rights are engaged.  This is a matter which we will address in a later section of this judgment.

32.  Turning to the Proportionality argument, it was contended that the Judge erred in finding that the Permission Scheme did not satisfy the proportionality test, because:

(1)     The judge was wrong to adopt the standard of “no more than necessary” in carrying out the proportionality analysis, and should have adopted the “manifestly without reasonable foundation” standard so as to accord to the Government a wide margin of discretion in determining how the competing rights should properly be protected, as it was a matter of judgment for the Government to determine the extent to which the Forecourt should be made available for public exercise of the rights to freedom of expression and assembly, having regard to the fact that the Forecourt was an integral part of the CGO and serves as a pedestrian and vehicular access for it, and that it was not dedicated as a public area for the exercise of such rights.

(2)     Whichever standard was adopted, the impugned restrictions under the Permission Scheme satisfied the proportionality test having regard to the matters mentioned in paragraph 29 and the previous sub-paragraph, together with:

(a)     the existence of an alternative site for protests, demonstrations and assemblies at the DPAA on Tim Mei Avenue;

(b)     the fact that the time allocated for public activities at the Forecourt (with permission) represented the usual and most optimal times for such activities;

(c)     the fact that extending such times to working days would increase the likelihood of inconvenience and disturbance to users of the CGO and the pedestrian access to it and the LCC afforded by the Forecourt and the need to protect the normal operation of the CGO and the rights of those working there; and

(d)     the need to have regard to public order considerations as well as the notion of ordre public, having regard to the importance of the CGO as a major centre of Government operations.

33.  In connection with these arguments, the Director sought leave, by summons dated 24 July 2019, to adduce new evidence as to events arising during the protests in June and July 2019 against the proposed Fugitive Offenders Bill.  At the beginning of the hearing before us, it was accepted by both parties that it was open to the Court to take judicial notice of such events (although Ms Li SC for the applicant maintained that such events were not relevant to the issues arising for consideration on this appeal), and on this basis, the application for the admission of new evidence was not pursued.  Mr Yu, however, submitted that such events illustrated the risks that could arise in the event of protests, assemblies or demonstrations being permitted to take place, and that such risks were eminently a matter for the Government and the Director to assess, when determining the extent of access that should be allowed to the Forecourt for the purposes of exercising the rights of freedom of expression and assembly.

C.2    The Applicant’s contentions

34.  For the applicant, Ms Li submitted in response that:

(1)     The Error of Law ground relied on by the Judge was effectively pleaded in the Form 86, although it was there put on the basis of error of fact.  In any event, the Director had had the opportunity to address the court below on the impact of the CFA decision in Fong Kwok Shan Christine, and had not sought to adduce any further evidence.  In those circumstances, it could not be said that the Director had been prejudiced in any real way.

(2)     In relation to the Proportionality Ground, Ms Li submitted that the appropriate standard to be applied was the “no more than necessary” approach, and that adopting that approach, the restrictions imposed on the rights of freedom of expression and assembly were clearly not proportional:

(a)     It was submitted that the Forecourt had symbolic significance as a place for protests and other public order events, and that this was a factor that should be taken into account in the proportionality analysis.

(b)     It was further submitted that Article 29 of the Basic Law was inapplicable to the Forecourt, either because it should be understood as applying to the internal parts of homes and premises, or because the Forecourt was in any event permitted to be used by public for access to the CGO and LCC and thus was not a place apt to be protected by the Article 29 rights.

(c)     The restrictions imposed, such as requiring permission for a demonstration of the sort proposed by the applicant (of 10 persons) or even a one-man demonstration, was clearly not proportional, given that demonstrations of these proposed magnitudes would not even require permission under the POO, but would require permission under the Permission Scheme.

(d)     The suggestion that there was a risk of disorder arising from demonstrations was purely speculative.

(e)     The alternative venue afforded by the DPAA on Tim Mei Avenue was not a suitable or adequate alternative.

35.  In addition, the applicant contended, by way of his Respondent’s Notice, that the Judge should have held that the Permission Scheme was not prescribed by law, as it was merely an administrative scheme, based only on the Director’s position as the land allocatee, and had no foundation in statute or delegated legislation. Further, it lacked the precision and legal certainty needed to allow an applicant to know what he could or could not do in the exercise of his rights of freedom of expression and assembly, as it provided no guidance as to the scope of the Director’s discretion to approve or disallow an application.

D.     Fundamental rights engaged and permissible restriction on such rights

36.  Freedom of expression and freedom of assembly, of procession and of demonstration are fundamental rights protected under Article 27 of the Basic Law (BL 27).

37.  Further, it is provided in Article 39 of the Basic Law (BL 39) that the provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong shall remain in force. Such provisions applied before the resumption of sovereignty in 1997 and continued to apply after 1997 to Hong Kong by way of the Hong Kong Bill of Rights (HKBOR) as contained in the Hong Kong Bill of Rights Ordinance, Cap 383.

38.  By virtue of BL 39(2), the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless the restriction is prescribed by law.  Moreover, such restriction shall not contravene BL 39(1), meaning that the restriction must comply with the provisions in the HKBOR.

39.  Articles 16 and 17 of the HKBOR protect these rights and freedoms.  The relevant provisions in Article 16 are as follows:

“ (1) ...

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary—

(a) for respect of the rights or reputations of others; or

(b)   for the protection of national security or of public order (ordre public), or of public health or morals.”

Article 17 provides:

“ The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

40.  As those provisions expressly state, these rights and freedoms are not without limits.  Article 16(3) emphasises that the exercise of freedom of expression carries with it special duties and responsibilities.  Both Articles 16(3) and 17 refer to restrictions which are necessary for respect of the rights of others and the protection of public order (ordre public).

41.  As the Permission Scheme imposed a restriction on the exercise of the freedom of expression and assembly, such restriction must be subject to scrutiny under Articles 16 and 17 of the HKBOR (read together with Basic Law Article 39) and Basic Law Article 27. As held by the Court of Final Appeal in Fong Kwok Shan Christine at [16],the restriction must have sufficient legal certainty to qualify as a restriction “prescribed by law” and must be necessary for the specified aims set out in those articles.  The requirement of necessity involves the examination of the restriction against the proportionality test.  

42.  At the same time, Mr Yu submitted, the proprietary rights of the Government as landowner of the CGO and the Forecourt are also engaged.  An incident of the proprietary rights of a landowner is the right to determine the terms and conditions for permitting others to enter his land.  In Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, the Court of Final Appeal held that Articles 6 and 105 of the Basic Law confer protection on private property rights.  One of the rights protected under BL 105 is the right to use property.  It was held that since the articles contain no express provision regarding permissible restrictions, any restriction imposed on such right must be subject to the scrutiny of the four-step proportionality test.  We shall consider at Section G below if these articles are engaged in the present case.

43.  Since the CGO is the location of the offices of many civil servants, it was submitted that their rights under Article 29 of the Basic Law are also engaged.  BL 29 protects the inviolability of homes and other premises of Hong Kong residents.  Arbitrary intrusion is prohibited.  Mr Yu submitted that “other premises” includes one’s workplaces.  Again, we shall consider at Section G below the implications arising from this submission. 

44.  The effect of restrictions imposed by a property owner on admission to his premises as a curtailment of the rights of freedom of expression and demonstration was examined by the Court of Final Appeal in Fong Kwok Shan Christine.  However, the matter was argued in the Court of Final Appeal on the basis that the rights of demonstration and freedom of expression were not engaged and this argument was duly rejected.  As far as we can read from the judgment, no argument had been raised on competing constitutional rights and there was no discussion on whether a double proportionality approach (with proportionality analysis from the standpoint of different rights) should be adopted.

45.  In the present appeal, we shall have to consider in Section G below if the engagement of competing rights calls for a double proportionality approach.

E.     Prescribed by law

46.  We shall first address the applicant’s contention on prescribed by law.

47.  In essence, a restriction is prescribed by law if it satisfies the following criteria:

(a)     the restriction is imposed with proper legal authority;

(b)     the restriction is accessible to those affected by it;

(c)     the restriction is formulated with sufficient precision to enable the citizen to regulate his conduct.

48.  On the third limb of these criteria, Au J summarized the relevant approach at [52] to [54] of the judgment below:

“ 52.     The prescribed by law requirement concerns the requirement to have sufficient legal certainty for any purported limitation of the right of free expression.  However, it is well established that sufficient legal certainty does not mean or require absolute certainty, and that a prescription by law inevitably may involve some degree of vagueness in the prescription which may require clarification by the court.

53.     Further, the prescription must be formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.  Further, the fact that doctrine issues may remain and require to be resolved by the court in an appropriate case merely provides an illustration of the common law at work.  The mere existence of debatable issues does not make the law uncertain.  A law that confers a discretion is not necessarily in itself inconsistent with the requirement.

54.     Ultimately, the question is answered by whether the law is able to enunciate some boundaries which create an area of risk.  There will be conduct that falls along the boundaries of the area of risk for which no definite prediction or answer can be given in advance; but the identification of the area of risk will provide guidance to citizens and that suffices for the purpose of certainty.”

49.  We do not understand Ms Li to be disputing these general propositions and we respectfully agree with the same.

50.  Further, we would add the following observations:

(a)     In terms of restriction arising from the exercise of administrative discretion, the requirement of certainty involves the examination of whether there is sufficient clarity and safeguards to protect an individual against abuse by way of arbitrary interference of his fundamental rights.  

(b)     The court should adopt a holistic approach in assessing if the requirement is satisfied, including the effectiveness of potential judicial review.

51.  The Permission Scheme was implemented by the Director in the exercise of the Government’s common law right and duty as landowner of the CGO.  As in the case of all landowners and occupiers of landed property in Hong Kong, the Government has a duty to manage its properties, including the CGO and the Forecourt, to ensure the safety and security of all users of the CGO, including those using the Forecourt as a means of access to the LCC.  Any failings in taking due care in these respects may result in civil liability on the part of the Government.

52.  In our judgment, the proprietary right of the Government in respect of the Forecourt and its duty as occupier provided proper authority in law for the implementation of the Permission Scheme.  Like other landowners, the Government does not need to rely on any statutory provision in the exercise of its power to lawfully manage its own buildings.  There is no need to have further statutory backing for the Permission Scheme.  The first criterion in [47] above is satisfied.

53.  There is no dispute that the Permission Scheme is accessible to the public.  The second criterion in [47] is also satisfied.

54.  As regards the third criterion, the Guidance Notes set out at paragraph 5 how an application would be processed.  It provides for the Director to seek advice from the Police as to potential threat to public order and public safety in respect of a request for use of the Forecourt for expression of opinions or conduct public activities.  Further, under paragraph 2, the purpose of the Scheme was stated to be the striking of a balance between the maintenance of orderly and effective operation of the CGO and the need to facilitate public expression of opinions.  Paragraph 7 of the Conditions of Use provides that the Director may refuse access to the Forecourt by any person if the person failed to comply with the conditions of use, or behaves in a disorderly, offensive or immoral manner, or commits an offence.  Hence, the only criteria in assessing if an application which is made in accordance with the Scheme should be granted are public order and public safety and the orderly and effective operation of the CGO.

55.  In such circumstances, there is no scope for the Director to disallow an application on other grounds. On the evidence, applications were processed on first come first served basis.

56.  Public order and public safety and orderly and effective operation of the CGO are acceptable and objectively assessable criteria.  If necessary, the court can provide redress by way of judicial review in cases where the Director rejects an application on improper ground.  Viewed thus, there are sufficient safeguards against arbitrary interference with the exercise of right of peaceful assembly or the freedom of expression.

57.  We therefore reject the challenge of Ms Li based on the prescribed by law requirement.  We hold that the Permission Scheme is prescribed by law.

F.      Illegality

58.  With respect, we cannot accept Ms Li’s submissions that the error of law identified by Au J at [84] of the judgment is in substance the same as the error of fact pleaded in the Form 86 at paragraphs 14, 19 and 142.  In those paragraphs, the alleged error was that the CGO and the Forecourt (which the Applicant chose to describe as Civic Square[1]) were public places whilst the Director mistakenly proceeded on the basis that they were not.

59.  At [82] and [83] of the judgment, Au J held that in light of Fong Kwok Shan Christine, the complaint of error of fact was no longer relevant.  Instead, Au J ruled at [84] that the Director had committed an error of law by starting off with the premise that as landowner the Government could in principle exclude anyone from entering the Forecourt to exercise the rights of freedom of expression and assembly.

60.  It is clear to us that Au J did not accept that the Director had made an error of fact in terms of the Government’s ownership of the land.  At [84], the Judge referred to the Director’s formulation of the Permission Scheme as landowner.

61.  On the evidence, the Applicant did not have any basis to suggest that the Director erred in managing the Forecourt on the basis that the Government had ownership of the land.  As we held above, the legal authority for the formulation of the Permission Scheme stemmed from such ownership.

62.  With respect, we agree with Mr Yu that it was not an error of law for the Director to start from the premise that as landowner the Government could set conditions for permitting members of the public to enter into the CGO and the Forecourt.  In Fong Kwok Shan Christine, the Court of Final Appeal held that the property rights of the Government or other public authority could not per se shield the restrictions imposed by it as landowner on the right of demonstration and freedom of expression from a proportionality assessment.  However, the Court of Final Appeal did not say that such ownership is irrelevant altogether.

63.  On the contrary, at Section E.5 of the judgment, Ribeiro PJ discussed state-owned locations (like the Prime Minister’s office, airport control tower, a prison cell or a judge’s chambers) where it would appear obvious that demonstrations and similar exercise of free expression should be subject to restrictions.  Though His Lordship concluded that even in those cases, the proportionality test should be applied instead of a presumptive rule excluding engagement of the right of demonstration in limine (see [51] and [54] of Fong Kwok Shan Christine), he also opined that in the majority of these cases exclusions or limitations will be upheld as necessary and proportionate.

64.  As we have seen, the Permission Scheme sought to strike a balance between the freedom of expression and assembly on the one hand and the maintenance of orderly and effective operation of the CGO.  The Director did not adopt an approach that such freedoms were excluded in limine.  As manager of the CGO on behalf of the Government, the Director obviously had a duty to ensure activities in the Forecourt would not hamper the ordinary business operations at the CGO and the safety and security of those visiting or working there.  There is therefore nothing wrong in law for the Director to start from a premise that the Government has the power to regulate the use of the Forecourt.  We respectfully disagree with Au J in his holding that by asserting such power the Director had erred in law. 

65.  However, whether the Director had struck the right balance must be assessed by reference to the proportionality test.  We agree with Mr Yu that in this respect, it is ultimately a question for the court.  As observed by Ribeiro PJ at [130] of Hysan Development Co Ltd v Town Planning Board, supra, echoing Lord Hoffmann in R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [68], the Government officials cannot be expected to make the decision with textbooks on human rights law at their elbows and it is not their task to conduct proportionality analysis.  See also Mayor of London v Hall [2011] 1 WLR 504 at [43] per Lord Neuberger MR.

66.  For these reasons, we respectfully reverse the Judge on the illegality ground. 

G.     Proportionality

G.1   Fong Kwok Shan Christine and competing rights

67.  We have mentioned the submissions of Mr Yu on competing Basic Law protected rights being engaged.  There are authorities suggesting that in cases where competing rights are engaged, the court should adopt a bi-focal or multi-focal assessments leading to the ultimate balance of all factors: see Campbell v MGN Ltd [2004] 2 AC 457, 473-474; Von Hannover v Germany (2005)40 EHRR 1; In re Guardian News and Media Ltd [2010] 2 AC 697.

68.  Before we discuss if such approach should be adopted in the proportionality analysis in the present context, we need to examine the law as propounded by the Court of Final Appeal in Fong Kwok Shan Christine concerning the right to demonstrate at premises not generally accessible to the public without any conditions. Au J discussed the case at [42] to [47] of the judgment below.

69.  At [47], the Judge extracted the following propositions from the judgment in Fong Kwok Shan Christine as being relevant for the determination of the present judicial review:

“ (1) The rights to freedom of expression, assembly and demonstrations, as constitutionally protected rights, are engaged when they are sought to be exercised by the would-be protestors or demonstrators at any kind of properties (whether it is state-owned, government property, commercial property or private residential property).

(2) As private property rights cannot trump fundamental rights, in the context of the exercise of the rights to freedom of expression and assembly, insofar as state-owned or government property is concerned, it is wrong in principle for the government to regard it as having an entitlement as property owner to have an unfettered choice to exclude the public or to grant access.

(3) There therefore should only be one common test to be applied to determine the constitutionality and lawfulness of the restrictions imposed on these rights sought to be exercised at any kind of properties. The test is the prescribed by law requirement and the proportionality test, as these are the restrictions specified and permitted under the constitutional provisions.

(4) In relation to the proportionality test, it is relevant and necessary to weigh up “the manner, form and impact of each of the demonstrations at the sites concerned” to determine if the restrictions can meet the proportionality analysis. This is particularly so as the manner and location of the protest is part and parcel of the exercise of freedom of expression. A proportionality approach enables “individualised and nuanced assessments and caters for the possibility that in exceptional circumstances such rights might be engaged in” even ostensibly improbable places. Hence, a presumptive exclusionary rule is ill-suited to the task.”

70.  Whilst it is clear that the Court of Final Appeal rejected the “rights not applicable” argument and held that the proportionality principle should be applied in assessing the restrictions imposed on rights to freedom of expression, demonstration and assembly in all cases (and to that extent we agree with propositions in the summary of Au J), it is necessary to elaborate on a few points.

71.  With the rights not applicable argument laid to rest by Fong Kwok Shan Christine, it is no longer necessary to refer to one type of rights trumping another type of rights.  The rights not applicable argument was, as explained by Ribeiro PJ in Fong Kwok Shan Christine, in substance the subjugation of the rights of expression and demonstration to property rights, and for reasons clearly and convincingly set out in that judgment duly rejected.  That was the context in which Ribeiro PJ used the heading “Fundamental rights not trumped by property rights” in Section E.2 of that judgment.  Similarly, the rights not applicable argument was run before Au J[2] and he therefore understandably used similar expression in proposition (2).

72.  Before us, quite properly, Mr Yu did not repeat the rights not applicable argument.  Instead, the arguments before us focused on the striking of a balance between competing rights.  In such context, the crucial issues are:

(a)     what are the rights engaged;

(b)     the extent to which there is real conflict between these rights; and

(c)     in light of the conflict, how to strike the balance.   

73.  Insofar as the rights engaged are rights protected by the Basic Law or the HKBOR, non-derogable rights aside, there is no presumption that one kind of rights must take precedence over another kind of rights.  Thus, in Campbell v MGN Ltd [2004] 2 AC 457, Lord Hoffmann said at [55]:

“ I shall first consider the relationship between the freedom of the press and the common law right of the individual to protect personal information. Both reflect important civilised values, but, as often happens, neither can be given effect in full measure without restricting the other. How are they to be reconciled in a particular case? There is in my view no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected the other. And the extent of the qualification must be proportionate to the need…”

In similar vein, Lord Steyn said at [17] in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593:

“ First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

See also In re British Broadcasting Corporation [2010] 1 AC 145 at [17]; In re Guardian News and Media Ltd [2010] 2 AC 697 at [51]; Khuja v Times Newspapers Ltd [2017] UKSC 49 at [23].

74.  It is clear from these authorities that instead of giving presumptive precedence to a particular kind of rights, the court must strike the ultimate balance by reference to the particular facts and circumstances of the case in question to assess the extent to which and the justification for the incursion upon the respective right and the underlying values protected by such right.  Such approach accords with Ribeiro PJ’s emphasis on the importance of an individualised and nuanced assessment under the proportionality approach.

75.  As it is provided in Articles 16 and 17 of the HKBOR, these rights are not absolute by nature.  They can be subject to restrictions.  As highlighted by the Court of Final Appeal in HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, there is no protection under Article 17 once a demonstrator crossed the line when he became involved in violence or the threat of violence.  Further, both Articles 16 and 17 rights can be subject to restrictions which are necessary in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

76.  The rights and freedoms of others can be rights protected under the HKBOR or the Basic Law.  They can also be other rights conferred by the general law which do not come within the scope of any specific provisions in the HKBOR or the Basic Law, see HKSAR v Chow Nok Hang, supra, at [42] and Mayor of London v Hall, supra, at [49] per Lord Neuberger MR.  The other right discussed in Yeung May Wan v HKSAR (2005) 8 HKCFAR 137 at [44] was the right of the other road users of passage along the highway.  One of the rights alluded to in Fong Kwok Shan Christine, supra, at [112] was the right of persons who wish to observe the debate and proceedings in LegCo.    

77.  It is therefore inherently built into the protection of rights under Articles 16 and 17 a proportionality analysis giving due weight to the other rights of others who might be affected by the exercise of the right of freedom of expression or the right of peaceful assembly.

78.  In the present appeal, Mr Yu identified various rights of the others which could be affected by the exercise of the right of assembly at the Forecourt.  First, he alluded to the property right of the Government under BL 6 and 105.  Second, he also relied on the rights of those who worked at the CGO under BL 29.  Third, he referred to the rights of other visitors who have to use the Forecourt as a means of access to the CGO or the LegCo. 

79.  In Fong Kwok Shan Christine, supra, Ribeiro PJ discussed government owned premises[3] separately from private properties[4]. His Lordship alluded to the rights under BL 6, 29 and 105 in the context of the latter but not the former.  At [69], Ribeiro PJ said:

“ It follows from the foregoing discussion that there is only a limited and imperfect analogy between the approaches to freedom of expression as exercised in public versus private properties. In each case, assuming that the right is engaged, its limitation embodied by denial of access to the site is assessed on proportionality principles. But, where private property is concerned, special elements involving the constitutional protections of private property and privacy in the home enter the equation, weighing heavily in favour of validating restricted access although this may be subject to rare possible exceptions.”

80.  Hence, there seems to be a distinction between public and private properties.  The underlying assumption was that the constitutional protections of private property (under BL 6 and 105) and privacy (under BL 29) were engaged only in private properties, but not in government (or publicly owned) properties. 

81.  The dicta must be read in context.  The government properties which the Court of Final Appeal had in mind, as demonstrated by the facts of the case before the court and the cases cited are all public buildings or premises: LegCo building, passenger terminal of Montreal Airport, Parliament Square Gardens in England, Aldermaston Women’s Peace Camp on government land and camps at the churchyard of St Paul’s Cathedral.  There were also references to airport control tower, prison and a judge’s chambers in the discussion of Ribeiro PJ.

82.  But there was no reference to publicly owned premises which were used for residential purposes as in the case of government quarters.  Obviously, for the people residing there, the premises are as much their homes as those residing in public housing (where the properties are owned by the Housing Authority or Housing Society).  Thus, for such cases, it cannot be the intention of the Court of Final Appeal to hold that BL 29 is not engaged.

83.  On the other hand, the Court of Final Appeal apparently proceeded on the basis that BL 6 and 105 are confined to private properties and they are not engaged in respect of Government owned premises.  At [58] to [60] of the judgment in Fong Kwok Shan Christine, supra, Ribeiro PJ set out the qualification in the application of the proportionality test for private properties:

“ 58. In my view, where the guaranteed right is engaged, the orthodox approach of ascertaining whether any restriction of access is proportionate and valid remains applicable but with the qualification that elements of particular significance regarding private property must be given special weight in the proportionality analysis.

59. Such considerations flow from the existence of constitutional protections relating to private property and the right to privacy. Thus, BL 6 requires the Government to protect the right of private ownership in accordance with law; and BL105 mandates such protection for the rights of individuals and legal persons to the acquisition and use, etc, of property. Particular protection is conferred on the “homes and other premises of Hong Kong residents”, BL 29 stating that they “shall be inviolable” and prohibiting arbitrary or unlawful intrusion. Similarly, BOR 14 prohibits “arbitrary or unlawful interference with [a person’s] privacy, family, home or correspondence”.

60.      Consequently, where a limitation on the right to freedom of expression involves denial of access to private property, justification of the restriction as a measure necessary for the protection of the rights of others has to be given very substantial weight in the proportionality balance.”

84.  BL 6 refers specifically to the right of private ownership of property.  BL 105 refers to the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property.  Both articles require the Government to protect such rights in accordance with law.  Read in context, as held by the Court of Final Appeal, those articles are not engaged in respect of Government properties.

85.  Since the present case is concerned with the Forecourt at the CGO, there is no dispute that it is Government property.  BL 6 and 105 are not engaged.

86.  But this does not mean that the Government does not have proprietary rights in respect of its properties.  As explained in Section F above, as a matter of general law, the Government can exercise its power (and indeed has a duty to) manage its properties.  In the management of such properties, there is however a public law obligation on the Government to pay due regard to the rights protected under Articles 16 and 17 of the HKBOR.  It does not mean that there cannot be any restrictions imposed upon access.  The rights of the Government and the rights of other users of the properties can come under the rubric of “rights of the others” in the permissible restrictions.  In Fong Kwok Shan Christine, supra, itself, the Court of Final Appeal upheld the conditions imposed by the LegCo.  But such restrictions have to satisfy the proportionality test.

87.  The right under BL 29 applies not only to the homes of Hong Kong residents but also to “other premises”.  Mr Yu submitted that other premises include workplaces.  Since the CGO is the workplace of the civil servants and Government ministers working there, their rights under BL 29 are engaged.

88.  In support of this submission, Mr Yu referred us to the judgment of the Court of Appeal in HKSAR v Chan Kau Tai [2006] 1 HKLRD 400.  The rights discussed in that case were the rights under BL 30 and Article 17 of the HKBOR.  At [102] to [104], the court held that:

(a)     For the purposes of those provisions, a right to privacy will generally exist where the person in question has a reasonable expectation of privacy;

(b)     The nature of the place in question is an important factor in determining whether a person has a reasonable expectation of privacy in the circumstances;

(c)     There is no reason why a person should not be entitled to privacy in his office or workplace.

89.  That case concerned covert audio and visual surveillance of the defendant in his office by the ICAC. The defendant was a civil servant and his office was within a Government building.  Such operation was undertaken with the permission of his superior without his knowledge.  His activities in the office and what he said in his telephone conversations there were recorded.  Some recordings were used by the prosecution in the criminal trial against the defendant to support the charges including recordings of him counting banknotes in his office on a number of occasions. 

90.  The right of privacy has a close affinity to the protection under BL 29.  At [61] in Fong Kwok Shan Christine, supra, Ribeiro PJ cited the decision of the New Zealand Supreme Court in Brooker v Police [2007] 3 NZLR 91 at [60] to highlight the relevance of the common law recognition of right to enjoy tranquillity[5] as a facet of the right to privacy in the context of the protection under BL 29.

91.  Though Ribeiro PJ restricted his consideration of BL 29 right to private homes at [62] and [64], we cannot see any reason why such right could not be engaged in relation to one’s private offices as held in HKSAR v Chan Kau Tai, supra.

92.  However, private office is distinct from the forecourt of the building in which one’s office is situated.  Applying the test of reasonable expectation of privacy espoused in HKSAR v Chan Kau Tai, supra, we cannot accept that the rights of the civil servants working at the CGO under BL 29 were engaged in respect of the Forecourt of the CGO.

93.  In light of the above analysis, the present case is not a case in which competing constitutional rights are engaged.  Neither property rights under BL 6, 105 nor privacy rights under BL 29 are truly engaged in competition with the rights of a demonstrator under Articles 16 and 17 of the HKBOR.

94.  There are of course other non-constitutionally entrenched rights being engaged.  We shall discuss them under the proportionality analysis below.  It is therefore not necessary in the present instance to engage in a double proportionality analysis to achieve an ultimate balance. 

G.2 Proportionality of the restriction on freedom of expression and demonstration

G.2.1 Standard of scrutiny

95.  Mr Yu submitted that the setting of conditions for admission under the Permission Scheme addressed the security over and the requirements of normal functioning of the CGO.  In these matters, counsel said, the Government is better placed than the court to assess what is needed in public interest.  The restrictions imposed under the Permission Scheme reflects a predictive or judgmental decision which it was the institutional role of the Director to make as to which there is no single right answer exists.  This particularly so when the Government cannot ensure an assembly would not descend into chaos or violent confrontations.  Counsel therefore submitted that the standard of scrutiny in the application of the proportionality test should be “manifestly without reasonable foundation” affording a wide margin of discretion to the Director.

96.  With respect, we cannot agree with this submission.

97.  In Fong Kwok Shan Christine, supra, the Court of Final Appeal applied the standard of “no more than reasonably necessary” in the proportionality analysis concerning restriction on demonstration at the LegCo chamber.  The considerations alluded to by Mr Yu are similar to the ones that the LegCo would have had to bear in mind in the formulation of the Administrative Instructions in that case.  We are not persuaded that the courts are less attuned to implications arising from these considerations in the present context even though the operation of the CGO is different from that of the LegCo.

98.  Similarly, in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at [93], the Court of Final Appeal applied the standard of no more than reasonably necessary in the proportionality analysis balancing public order and the right of demonstration.

99.  In Tabernacle v The Secretary of State for Defence [2009] EWCA Civ 23, at [39] and [50] the English Court of Appeal rejected the submission that the Secretary enjoyed a wide margin of discretion as the restriction did not prevent demonstration altogether as opposed to limiting the mode of demonstration.

100.  Whilst we accept that the Director would have more experience than the court in assessing these matters, it is also the duty of the Director to provide the court with the relevant information on such matters in assisting us to conduct the necessary assessment.  Armed with such information as set out in the evidence, we do not accept that the court is so institutionally disadvantaged that the less stringent test of manifestly without reasonable foundation standard should be adopted.

101.  We hold that Au J was correct in applying the standard of no more than reasonably necessary in conducting the proportionality analysis.

G.2.2 Legitimate aims

102.  It is well established in Hong Kong that the proportionality analysis involves the following steps:

(a)     whether the restriction pursues a legitimate aim which falls within one of the permitted categories in Articles 16 and 17 of HKBOR;

(b)     whether it is rationally connected with accomplishing that aim;

(c)     whether the restriction is no more than reasonably necessary for accomplishing that purpose; and

(d)     whether a reasonable balance has been struck between the societal benefits of the encroaching measure on the one hand and the inroads made into the guaranteed right on the other.

103.  In the court below, counsel for the Director pinpointed[6] the following as the legitimate aims served by the restriction under the Permission Scheme:

(a)     maintaining the normal operation of the Forecourt as a passageway serving both as a vehicle circulation area of the CGO for passenger pick-up or drop-off, and as pedestrian passageway for staff and visitors to CGO and LCC on working days;

(b)     ensuring that the operation of the CGO would be free from interference or undue influence on working days; and

(c)     facilitating the use of the Forecourt for POEs in an orderly manner on Sundays and public holidays.

104.  Before us, Mr Yu advanced the submission that the restriction serves the maintenance of security at the CGO to ensure the executive branch of government can continue to function in a safe, secure and peaceful environment free from the risks of disruption.  He emphasised that the CGO is the centre of the HKSAR Government and its disruption would affect the normal functioning of government.  He submitted that these considerations are facets of order public as discussed in Fong Kwok Shan, Christine at [114].

105.  These submissions were advanced against the background that there had been previous occasions where the Forecourt was unlawfully occupied by protestors leading to the disruptions of the operation of CGO and curtailment of its use as vehicular and pedestrian passageway.  Those incidents were borne out by evidence and Au J alluded to the same at [68] of the judgment below.  As mentioned above, the security of CGO in the wake of protests and demonstrations had been a matter of public concern in the past and the DPAA alternative was first introduced in 2002 after the Right of Abode saga before the relocation of CGO to the Tamar Site. 

106.  Mr Yu also stressed the fluidity of POEs in terms of peaceful events developing rapidly into violent ones and the impossibility on the part of the Government to guarantee that lawful assemblies will proceed peacefully.

107.  We do not understand Ms Li to be disputing that these could be legitimate aims though she disagreed that there should be restriction as per the Permission Scheme.  She submitted that peaceful demonstration would not affect the normal operation at the CGO and the argument of Mr Yu on the risk to security is pure conjecture and speculation as to the descent of a demonstration into a violent one.  Counsel also said that there is always such a risk but this cannot be an argument to justify any restriction on the right of freedom of expression.  She also said that similar risk would arise from demonstrations at the DPAA.

108.  In our view, Ms Li’s submissions relate more to rational connection and reasonable necessity than legitimate aims and we would come back to them in the discussion below.

109.  We would however address some points raised by Ms Li in her contention that the Government’s property rights have no relevance.  For reasons we have already expounded in Section F above, we do not accept such contention.  The Government, as owner of CGO has the right to use the land where the Forecourt is situated and designed for its safe and effective use in furtherance of the operation of the CGO and as passageway for its workers and visitors.  As Mr Yu submitted, it has to be borne in mind that the function of the Forecourt as designed by the Government (as owner of the property) is not a place for demonstration or protest.  The Director, as manager of the CGO and the Forecourt, has a duty to take precautions so that the designated functions of the Forecourt are not compromised by other activities permitted to be carried on at the Forecourt.  The Director was perfectly entitled to take account of the needs of those working at the CGO in the attempt to strike the right balance with the public law duty on the Government to facilitate expression of public opinion to Government officials.  As we said above, in these respects, the Government owes a duty of care as to the safety and well-being of those working at and visiting the CGO. These are all relevant considerations in the context of the proportionality analysis.  In these respects, the Forecourt is different from a public road or highway even though it can be said that the general public do have access to the Forecourt during its opening hours.

110.  Further, as explained at footnote 1 above, it is a misnomer to call the Forecourt the Civic Square.  It is therefore wrong to perpetuate the self-improved but mistaken characterisation of the primary function of the Forecourt by attributing symbolic significance to it as a special place for mass public protest under such misnomer as suggested by Ms Li.  The Government had never allowed the Forecourt to be used as a place of mass protest and demonstration to the detriment of the normal operation of the CGO[7]. It was therefore perfectly lawful for the Director to decide that security measure had to be tightened up after POEs causing serious disruptions to the ordinary business carried on at the CGO.     

111.  We note that in Fong Kwok Shan Christine at [113], Ribeiro PJ referred to the justification of restrictions as being necessary for respect of the rights of others and for the protection of public order or order public.  We accept that the aims identified by the Director are legitimate aims within the specified purposes provided for in Articles 16 and 17 of the HKBOR.

G.2.3 Rational connection

112.  The Permission Scheme does not allow public meetings and public processions being held at the Forecourt during working days and restricts the hours for such activities on Sundays.  There is however no provision under the Permission Scheme for solo demonstrations or individual petitioner sitting there alone.  Insofar as Au J found disproportionality by reference to such scenario at [73] of the judgment, we respectfully agree with Mr Yu that such finding is not warranted as the Permission Scheme does not have the effect of barring solo demonstrations.

113.  Meeting is defined under the POO to mean any gathering or assembly of persons convened or organized for the purpose of the discussion of issues or matters of interest or concern to the general public or a section thereof, or for the purpose of the expression of views on such issues or matters.  Whilst there is no similar definition under the Permission Scheme, in light of the cross-reference to the requirements under the POO at its paragraph 3, the same meaning can be ascribed to the meaning of “meeting” under the Permission Scheme.

114.  Procession is defined under the POO to mean a procession organized as such for a common purpose, and includes any meeting held in conjunction with such procession.  Again we can ascribe the same meaning to “procession” under the Permission Scheme.

115.  Given the nature of meetings and processions, they would attract public attention and the presence of reporters.  The likelihood of other people interested in or opposed to the same public issue or topic joining in cannot be underestimated.  Such activities could cause disruptions to the ordinary and peaceful use of the Forecourt as passageway.  If such activities spilled over to the vehicular access, there could be obstructions to the normal vehicular access to the CGO and danger to those present at the passageway.  Thus, there is an obvious need to have some control as to the meetings and processions to be allowed at the Forecourt.  We are satisfied that the Permission Scheme is rationally connected with the legitimate aims.  Au J did not hold otherwise.

G.2.4 No more than necessary

116.  The crucial issue is whether the restriction imposed under the Permission Scheme is no more than necessary to achieve the legitimate aims.  We bear in mind that necessity in this context refers to reasonable necessity, not strict necessity, see Hysan Development Co Ltd v Town Planning Board, supra, at [83] to [88].

117.  Mr Yu submitted that aside from the reference to solo demonstrator, Au J erred in the following respects:

(a)     disregarding the availability of alternative means at or in the vicinity of the CGO to ventilate one’s views including demonstration at the DPAA and petitions to Government officials and LegCo members;

(b)     giving undue weight to the lack of discretion to allow public meeting and public procession on weekdays on account of the manner and form of a particular application.

118.  At [75], Au J held as follows:

“ The suggestion that there are alternative ways for the would-be protestors to submit their petitions to Government officials or to hold public meetings or proceedings at the mentioned area nearby the CGO does not assist the Director. The restrictions under challenge are the ones in relation to the exercise of the rights to freedom of speech and assembly at the Forecourt. As mentioned above, the rights to freedom of expression and assembly extends to the location that the would-be protestors seek to exercise them. Although a protestor does not have an absolute right to insist on the location, any restriction on him to do so at that location must again satisfy the proportionality test, as discussed above.”

119.  With respect, we agree with Mr Yu that the learned judge erred in law in disregarding the availability of alternative means of exercise of freedom of expression and demonstration at and in the immediate vicinity of CGO.  Although the Government is obliged to justify the restrictions imposed under the Permission Scheme, it is quite clear from the authorities that the availability of alternative means is a relevant consideration under the proportionality test in terms of assessment if a restriction is no more than necessary in the circumstances of the case.  In Fong Kwok Shan Christine at [46], Ribeiro PJ alluded to “more acceptable alternatives are open to the protesters” as a matter to be taken into account. At [116], references were made to the other means by which the appellant could have lawfully exercised her freedom of expression.  In Appleby v United Kingdom (2003) 37 EHRR 38 at [48], the European Court of Human Rights also had regard to the fact that the applicants were not effectively prevented from communicating their views to their fellow citizens by the refusal to allow demonstration at the entrance areas and passageways of the Galleries.  Likewise, in Kudrevicius v Lithuania (2016) 62 EHRR 34 at [168], the court took account of the finding that there were alternative and lawful means to protect the protester’s interests in assessing the justification for penalizing them for blocking a highway as a means of demonstration. 

120.  Other instances in which the courts had regard to alternative means to demonstrate include HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371 at [37]; Lai Man Lok v Director of Home Affairs [2017] 3 HKLRD 338 at [47(5)]; MTRC v Chow Nok Hang [2018] 2 HKLRD 1378 at [33].   

121.  As the European Court of Human Rights observed in Appleby v United Kingdom, supra, at [47], commenting on the freedom of expression protected under Article 10 of the European Convention:

“ That provision, notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (Government offices and ministries, for instance). Where however the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights …”

122.  This dictum was cited in Fong Kwok Shan Christine at [67].  The effect of a bar of access on the effective exercise of freedom of expression is an important consideration in the proportionality analysis.  Hence, the availability of alternative effective means must be relevant.

123.  In the present context, Ms Li quite rightly placed some emphasis on the significance of expressing views to Government officials at the CGO which Mr Yu described as the heart of the executive branch.  Whilst for reasons already canvassed, we reject any suggestion of symbolic significance stemming from the misnomer of the Forecourt as the Civic Square, we acknowledge that the expression of views in or at the vicinity of the CGO could have symbolic significance.  Further, the expression of views at the time when Government officials are working could have a different impact as compared with expression of views on non-working days.  In other words, the significance of the manner and form of expression and demonstration has to be taken into account. 

124.  In our judgment, the Permission Scheme should not be assessed in isolation from other measures adopted by the Government for receiving views from members of the public in or at the vicinity of the CGO.  To recap, the alternative measures include:

(a)     The designation of the DPAA just outside the Forecourt for demonstration and public meetings;

(b)     The arrangements for receiving petitions by Government officials.

125.  Ms Li submitted that the DPAA is of a much smaller area and not so proximate to the CGO.  Whilst DPAA only has an area of about 85 square metres, it would be sufficient for a small demonstration or presentation of petitions to Government officials.  It has to be remembered that neither the Forecourt nor DPAA are designed for mass public gatherings or meetings, still less for public processions.  The holding of meetings or processions of any scale which could not properly fit within the DPAA during office hours would be likely to cause disruptions to the use of the Forecourt as vehicular and pedestrian passageway.  In other words, in order to be compatible with the use of the CGO as a workplace and the Forecourt as the means of access, the permissible scale of public meetings and processions has to be duly limited.  Viewed thus, though the DPAA is of a smaller size, it does provide a realistic alternative for holding public demonstrations at the CGO.

126.  Since the DPAA is situated just outside the CGO and is visible to those in the CGO, we do not find the former to be less effective as a demonstration locality in terms of proximity to the CGO.

127.  For large mass public meetings and public processions, the Tamar Park is the ideal location and it is situated right in between the East Wing and West Wing of the CGO and also between the CEO and LCC.  The Permission Scheme does not impinge on the right to hold public demonstrations or assemblies there.

128.  Once the so-called symbolic significance attributable to the misnomer of Civic Square is rejected, we cannot see any substantial reduction of the rights of freedom of expression and demonstrations by requiring public meetings or public processions to be held at the DPAA or the Tamar Park as compared with the Forecourt.   

129.  On the other hand, in light of the potential fluidity of public meetings and public processions and the security risks arising from the holding of the same at the Forecourt as illustrated by past incidents, permitting such events at the Forecourt during working days could be incompatible with the primary function of the Forecourt as passageway and the safe and secure operation of the CGO as the headquarter of the executive branch of government.

130.  It is not useful to compare the provisions of the POO with the Permission Scheme in terms of the number of participants.  Though there are similarities in the role of the Commissioner of Police under the POO and the Director under the Permission Scheme, there are also differences.  In addition to public safety and order, the Director’s responsibility also include adopting measures to ensure the safe and secure operation of the CGO and she has a duty to take care of the safety and well-being of those working and visiting the CGO.  Moreover, the Director, unlike the Commissioner, does not have the power to regulate or control public meetings and processions as provided under Part III of the POO.  Hence, it is right that a higher margin of security should be adopted by the Director and this should be taken into account in assessing the proportionality of the Permission Scheme.

131.  In terms of the management of risks of public meetings or processions descending into disorder or violent confrontations, in view of the different roles of the Commissioner of Police and the Director, the former would be responsible for the management of such risks at the DPAA and the latter would be responsible for the management of such risks at the Forecourt.  If public meetings or processions are held at the Forecourt on non-working days, the Commissioner of Police would also be responsible for the management of the risks arising from such meetings or processions.  The fact that such events at the DPAA could give rise to similar risk does not mean that such risks are not relevant for the proportionality analysis.

132.  Au J also alluded to the lack of discretion on the part of the Director to grant permission for peaceful meetings and processions on workdays even in exceptional circumstances where the Forecourt has a special significance in respect of a particular event.

133.  The learned judge obviously had in mind the relevance of manner and form in assessing the proportionality of a restriction.

134.  We accept that manner and form is relevant.  In Fong Kwok Shan Christine Ribeiro PJ said at [46]:

“ A restriction may, for instance, be disproportionate in relation to a silent, orderly demonstration mounted by a limited number of protesters displaying placards for a few hours without unduly inconveniencing other members of the public. But the same restriction may be entirely justified in respect of a demonstration conducted in a manner or taking a form which is much more intrusive, affecting the rights of others or posing risks to public order, ordre public, or public health and morals, especially where more acceptable alternatives are open to the protesters…”

135.  For situations of “obvious cases”, His Lordship said at [51]:

“ The examples given are all compelling and one can readily accept that in the vast majority of such cases, one would rapidly conclude that outsiders cannot validly assert a constitutional right to speak or demonstrate in such locations. However, the proper conclusion to draw in those cases is that the right to freedom of expression may validly be restricted and not that the Court should accept a presumptive rule excluding engagement of the right in limine, carrying with it the objections of principle and problems of definition that have been discussed above. A proportionality approach enables individualised and nuanced assessments and caters for the possibility that in exceptional circumstances such rights might be engaged even in such ostensibly improbable places.”

136.  However, these observations were made in the context of the rejection of the “rights not applicable” argument.  At the same time, it is also plain that Ribeiro PJ did not consider that the manager of a place cannot set any rules which have the effect of restricting the freedom of expression and demonstration.  On the facts of Fong Kwok Shan Christine, the Court of Final Appeal upheld the validity of the restriction imposed in the Administrative Instructions for Regulating Admittance and Conduct of Persons.  The relevant rule did not provide for exceptions.  Still, it satisfied the proportionality assessment.  However, as we shall discuss below, when it comes to enforcement of the restriction, the matter would again be subject to another level of individualised and nuanced assessments.  In this appeal, we are only concerned with the validity of the Permission Scheme as a general policy of the Director in the management of the Forecourt regarding the holding of public meetings and public processions.  In the formulation of policy, the Director is entitled to adopt a bright-line approach.        

137.  As a matter of common experience, there are many places in public or government buildings where admittance is limited to restricted personnel or subject to conditions.  Many of those rules do not provide for exceptions in relation to the exercise of rights of demonstration or freedom of expression.  It would be surprising if such rules, no matter how cogent or sensible they are, can now be said to be invalid due to the lack of reference to a residual discretion to cater for really exceptional circumstances.

138.  For the reasons given above, in respect of restrictions on the Articles 16 and 17 rights, the Permission Scheme should be considered together with the other avenues for demonstrations and petitions at or in the vicinity of the CGO.  Having assessed the extent of restriction and balanced the same against the potential risks of disruption to the operation of the CGO during working days, we are of the view that the Permission Scheme is no more than necessary to achieve the legitimate aims discussed above.

G.2.5 Striking of fair balance

139.  The fourth step of the proportionality analysis examines if a fair balance has been struck between the societal benefits of the encroaching measure on the one hand and the inroads made into the guaranteed right on the other.  In Hysan Development Co Ltd v Town Planning Board, supra, at Section F.3, the purpose of the fourth step was explained and at [76] Ribeiro PJ said as follows:

“ The fourth step therefore requires the Court to examine the overall impact of the impugned measure and to decide whether a fair balance has been struck between the general interest and the individual rights intruded upon …”

And at [78]:

“ … This requires the Court to make a value judgment as to whether the impugned law or governmental decision, despite having satisfied the first three requirements, operates on particular individuals with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question ...”

140.  We have already explained above the limited extent of the incursion occasioned by the Permission Scheme to the right of freedom of expression and demonstration in general in light of the substantial equivalence of other effective means available at or in the vicinity of the CGO.  On the facts of the application of this Applicant, we cannot discern any exceptional circumstances causing oppressive unfairness to him to require the Director to depart from the policy set out in the Permission Scheme.  The Applicant could exercise his freedom of expression and assembly in a manner and form which is equally effective as the holding of such event at the Forecourt. 

141.  In our view, the Permission Scheme also satisfies the requirement under the fourth step.

G.3    Policy versus enforcement

142.  Although we come to the conclusion that the Permission Scheme satisfies the proportionality test, the Director must have regard to the individual circumstances of each case in the actual administration of the scheme and the enforcement of the restriction.  The position is similar to the scheme for prior notification (which was held to be proportionate) discussed in Kudrevicius v Lithuania (2016) 62 EHRR 34.  The European Court had this to say at [150] and [151]:

“ 150. … While rules governing public assemblies, such as the system of prior notification, are essential for the smooth conduct of public demonstrations, since they allow the authorities to minimise the disruption to traffic and take other safety measures, their enforcement cannot become an end in itself. In particular, where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by art.11 of the Convention is not to be deprived of all substances.

151. The absence of prior authorisation and the ensuing ‘unlawfulness’ of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of art.11…”

H.  Conclusion and disposition

143.  We therefore hold that the Permission Scheme as a general policy is proportionate and Au J erred in holding otherwise.  The appeal is allowed accordingly.

144.  We set aside the judgment of Au J and dismiss the application for judicial review.

145.  We also make an order of costs nisi that the applicant shall pay the costs of the Director here and below, such costs are to be taxed if not agreed.