FAMC40/2014
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 40 OF 2014 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO 482 OF 2013)
_____________________
BETWEEN
HKSAR
Respondent
And
KOO SZE YIU（古思堯）
1st Applicant
MA WAN KI（馬雲祺）
2nd Applicant
_____________________
Appeal Committee: Chief Justice Ma, Mr Justice Tang PJ and Mr Justice Fok PJ
Date of Hearing and
Determination: 30 October 2014
Date of Reasons for
Determination: 10 November 2014
_____________________________
REASONS FOR DETERMINATION
_____________________________
Chief Justice Ma:
1. On 1 April 2012, at a public procession following polling day for the 2012 elections of the Chief Executive, the Applicants attempted to set fire to the regional flag of the HKSAR. Both were charged with attempting to desecrate the regional flag contrary to s 7 of the Regional Flag and Regional Emblem Ordinance (“the RFREO”).[1] They were convicted in the Magistrates Court,[2] and sentenced to four months imprisonment suspended for two years (for the 1st Applicant) and 230 hours community service (for the 2nd Applicant). On appeal,[3] the convictions were upheld but the sentences of the two Applicants were reduced to, respectively, two months imprisonment suspended for one year and 110 hours community service.
2. The Applicants sought leave to appeal to this Court on two points said to be of great and general importance:-
“(1) Whether section 7 of the Regional Flag and Regional Emblem Ordinance (No 117 of 1997) (“the offence-creating provision” ) constitutes a restriction of the right to hold opinions without interference, contrary to Article 16(1) of the Hong Kong Bill of Rights (“HKBOR” ), Article 19(1) of the International Covenant on Civil and Political Rights (“ICCPR” ) and is therefore inconsistent with Article 39 of the Basic Law and unconstitutional; and
(2) Having regard to the changes:
(a) in “time, place and circumstances” in Hong Kong resulting in the changes in the symbolic meaning of the regional flat in the past 15 years; and
(b) in local and overseas jurisprudence in respect of (i) the concept of public order (ordre public ); and (ii) the necessity test since the Court’s decision in HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, whether
3. After hearing submissions from counsel for the Applicants,[4] we dismissed the applications for leave with costs. These are the reasons of the Appeal Committee.
4. The constitutionality of s 7 of the RFREO was considered by the Court of Final Appeal 15 years ago in HKSAR v Ng Kung Siu .[5] The issue before the Court was whether s 7 of the RFREO was unconstitutional in the light of the guarantee of the freedom of expression contained in Article 16(2) of the Hong Kong Bill of Rights,[6] in the Hong Kong Bill of Rights Ordinance.[7] After applying the necessity test in Article 16(3), the Court held it was not and accordingly the constitutional challenge failed. The Applicants seek to revisit and reverse this conclusion. The Court of Final Appeal can depart from its previous decisions but, recognizing the importance of the doctrine of precedent, it will only do so with great circumspection and exercise its power sparingly.[8]
5. The first Question said to be of great general importance seeks to identify the infringed right to be the right to hold opinions without interference,[9] rather than the freedom of expression, which was the right considered in Ng Kung Siu . The symbolic meaning of the regional flag was put in the following way by Chief Justice Li in Ng Kung Siu [10] :-
“The regional flag is the unique symbol of the Hong Kong Special Administrative Region as an inalienable part of the Peoples Republic of China under the principle of ‘One Country, Two Systems’”.
As the Chief Justice noted,[11] Article 10 of the Basic Law makes reference to the use of a regional flag in the HKSAR. It is argued that criminalizing the act of desecration of the regional flag denies the Applicants the right to hold a contrary opinion regarding the meaning of the regional flag.
6. The alternative way in which the infringement of the freedom of opinion is put is that the existence of the criminal offence effectively coerces the Applicants into accepting the said symbolic meaning of the flag.
7. These arguments based on an asserted infringement of the freedom of opinion contained in Article 16(1) of the Bill of Rights are without merit and leave should be refused on this ground:-
(1) There is simply no denial or interference with the right to hold opinions without interference. Whatever views or opinions the Applicants or other persons may have in relation to the regional flag or any other matter, they are not prevented in any way by s 7 of the RFREO from holding these views or opinions.
(2) Rather, on analysis, the gravamen of the Applicants’ complaint is that they are only denied the mode of manifesting their opinions by means of desecrating the regional flag. Mr Lee confirmed as much when he clarified his case to be that the Applicants were prevented from holding their opinions in the sense that they were not allowed to express their views by burning the regional flag. The relevant right in this analysis is evidently the freedom of expression contained in Article 16(2) of the Bill of Rights. This was precisely the analysis of the Court of Final Appeal in Ng Kung Siu : see the judgment of the Chief Justice[12] and the concurring judgment of Bokhary PJ.[13] The Chief Justice stated at the outset of his judgment, “The question in this appeal is whether the statutory provisions which criminalize desecration of the national flag and the regional flag are inconsistent with the guarantee of the freedom of expression”. The first Question for which leave was sought falls squarely within the issue that was determined by the Court in Ng Kung Siu .
8. By the first Question, the Applicants essentially therefore sought leave to appeal to resurrect the same question that was before the Court of Final Appeal in Ng Kung Siu . Apart from the matters raised under the second Question, no real argument was mounted to suggest why the decision in that case should no longer be followed. Reliance was placed on two authorities from the United States, namely Texas v Johnson [14] and United States v Eichman ,[15] both 5-4 decisions of the Supreme Court of the United States.[16] Both these authorities were cited to the Court of Final Appeal in Ng Kung Siu . They are of limited utility in that, as the Applicants accept, the First Amendment to the Constitution of the United States refers only to the freedom of speech, not making a distinction between the freedom of opinion and the freedom of expression. However, these freedoms are separately mentioned in Article 16 of our Bill of Rights. Even on a cursory reading of the majority opinion of the Supreme Court in both cases,[17] it can be seen that the Supreme Court considered both these freedoms without distinction. By contrast, the Court of Final Appeal in Ng Kung Siu drew a distinction between the two rights. There is no reason to depart from the Court’s careful analysis.
9. The second Question for which leave to appeal was sought, raised an argument along the lines that there have been developments since the decision in Ng Kung Siu so as to merit a reconsideration of that decision by the Court of Final Appeal.
10. Before dealing with the Applicants’ arguments in detail, it is useful by way of background to set out briefly the reasoning of the Court of Final Appeal in Ng Kung Siu . Essentially, it was as follows[18] :-
(1) The right to freedom of expression being engaged, any restriction of that right[19] could only be justified if such was provided by law and the restriction was necessary by reference to those matters set out in Article 16(3) of the Bill of Rights.[20]
(2) It was the aspect of public order or ordre public that was relevant.
(3) Ordre public was an imprecise and elusive concept and its boundaries could not be precisely defined. The concept included what was necessary for the general welfare or for the interests of the collectivity as a whole. It was a concept that was a function of time, place and circumstances.
(4) The societal interest, that is the interest of the Hong Kong community, in the protection of the regional flag as a symbol as set out above[21] was an interest that came within the concept of ordre public.
(5) The question for determination therefore became: was the restriction on the right to freedom of expression (by the criminalizing provisions) necessary for the protection of ordre public?
(6) In the application of the necessity test, which obviously involved looking at aspects of proportionality, the Court of Final Appeal came to the view that the restriction was necessary. The reasoning of the Court in this regard included the fact that the restriction (which targeted only desecration of the regional flag) was a limited one.
11. In the light of the Court’s reasoning, the Applicants sought to argue the following:-
(1) While it was accepted that the societal interest in the protection of the regional flag as a symbol was a legitimate interest, the Applicants’ contention was that the strength of this interest “has considerably lost its importance given the changes in the last 15 years”. Later in their written submissions, the Applicants also said that this interest “has, or might have so weakened over the past 15 years.” It followed from the above, so it was contended, that the societal interest identified by the Court in Ng Kung Siu was or may no longer be justified as coming within the rubric of ordre public. The “time, place and circumstances” had changed.
(2) The Applicants also referred to authorities subsequent to Ng Kung Siu in which, in the context of considering aspects of ordre public, it was stated to be important to have regard to fundamental human rights. Particular reference was made to the decision of the Court of Final Appeal in Leung Kwok Hung v HKSAR [22] and General Comment No. 34 of the 102nd Session of the United Nations Human Rights Committee.[23]
(3) The Applicants accordingly submitted that in the application of the necessity test contained in Article 16(3) of the Bill of Rights, the importance of human rights had to be borne firmly in mind. The necessity test had to be strictly applied. Mr Lee’s main criticism of the judgment of the Court of Final Appeal in Ng Kung Siu was that the Court had not applied the necessity test sufficiently strictly. In addition to Leung Kwok Hung , Mr Lee referred to two authorities from the House of Lords and the United Kingdom Supreme Court.[24] The Applicants suggested there be a fourth step in the necessity test to the effect that the court must ask “whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.”
(4) By reason of the above, it was arguable that s 7 of the RFREO should now be regarded as unconstitutional; alternatively there ought to be a remedial interpretation of that provision to ensure that the right to freedom of expression was adequately protected.
12. In our view, the points raised above under the second Question were also unarguable:-
(1) There was simply no basis shown to the Court to suggest that the societal interest in protecting the regional flag had changed since the decision in Ng Kung Siu so as to make it remotely arguable that this interest could no longer be regarded as coming within ordre public. On the contrary, the Applicants accepted that such a societal interest remained legitimate. It is also noteworthy that when the Applicants were protesting on 1 April 2012, at the time the offence was said to be committed, they were themselves urging the faithful implementation of the concept of “One Country, Two Systems”. It ought to be observed that the reference to “time, place and circumstances” in Ng Kung Siu [25] is a reference to a part of the legal test to determine whether or not the concept of ordre public applies. It is not a general invitation to revisit the validity of decisions of the Court from time to time.
(2) The need to have regard to fundamental human rights permeates throughout the judgments in Ng Kung Siu . The reference in the Siracusa Principles to human rights highlighted by the Applicants in the present application[26] was actually quoted in full in the judgment of the Chief Justice.[27] The Court of Final Appeal in Ng Kung Siu had very much in mind this fundamental aspect.
(3) The necessity test as identified and applied by the Court in Ng Kung Siu clearly involved a careful consideration of the fundamental right of freedom of expression. The test that the Applicants advocated, involving as it did a recognition of the importance of human rights, was precisely the test carried out by the Court of Final Appeal. Any suggestion that the Court had somehow failed to recognize the importance of the right of expression was, with respect, entirely baseless. The authorities relied on by the Applicants added little. Furthermore, the so-called fourth step suggested by the Applicants was no more than a restatement of the rationale behind the applicable test.
(4) There can be no basis for s 7 to be held unconstitutional or for any remedial interpretation of it to be adopted.
13. Ultimately, the Applicants were really attempting to re-argue the same points determined by the Court in Ng Kung Siu . It was unarguable to suggest that the Court of Final Appeal should now depart from this decision.
14. For these reasons, the application was dismissed.
15. As to costs, it was appropriate to order that the costs of the unsuccessful application for leave be paid by the Applicants. In resisting costs, Mr Lee referred to Liu Sik Keung v Hong Kong Special Administrative Region .[28] In that case, the Applicant had been convicted by a magistrate of charges of indecent assault and common assault. These convictions were upheld on appeal. He sought leave to appeal to the Court of Final Appeal and this was dismissed by the Appeal Committee as being without merit. On the question of costs, Bokhary PJ noted there was a mechanism to filter out applications which disclosed no reasonable grounds for leave to appeal or which were frivolous. This is known as the Rule 7 Procedure.[29] Given the availability of this procedure, it was observed that something “sufficiently out of the ordinary” was needed before a costs order can be made against an unsuccessful applicant for leave. It was also observed, “Moreover, in a criminal case it is necessary to ensure that the Appeal Committee’s jurisdiction to order costs against an unsuccessful leave applicant is not exercised in such way as to give rise to undue deterrence.”
16. This decision of the Appeal Committee requires some clarification:-
(1) Whether or not a summons under Rule 7(1) of the Rules is issued is within the discretion of the Registrar.[30] Only when the summons is issued does the Appeal Committee deal with the matter under Rule 7(2).
(2) Where the Registrar does not issue a Rule 7 summons, there cannot be said to be involved any decision or acceptance that the application for leave to appeal has any intrinsic merit; indeed there is no decision along these lines at all.[31] The decision is simply that a Rule 7 summons should not be issued.
(3) When a matter comes before the Appeal Committee for determination on a hearing for leave to appeal, the discretion as to costs is a wide one and entirely within the discretion of the Appeal Committee. The usual principles will apply. It may be that if an order for costs against an unsuccessful applicant constituted a form of “undue” deterrence, this may be a factor in the determination of costs. Or, depending on the circumstances, the fact that a Rule 7 summons was not issued may also be a factor. It all depends on the individual circumstances of each case and, as I have said, the Appeal Committee will apply the usual principles as the costs. It will often be the case, however, that costs should follow the event.
(4) If it was intended in Liu Sik Keung that some different principles should apply, then that decision, which as far as I can see has not been expressly followed, should no longer be regarded as correct. It cannot be right as a matter of principle that the decision of the Registrar not to issue a Rule 7 summons should then somehow inhibit the Appeal Committee from exercising its own discretion as to costs.
17. In the present case, there was no reason shown to depart from an order of costs against the unsuccessful Applicants.
(Geoffrey Ma)
(Robert Tang)
(Joseph Fok)
Mr. Martin Lee, SC and Mr Carter Chim, instructed by JCC Cheung & Co., for the 1st and 2nd Applicants.
Mr. David Leung, Deputy Director of Public Prosecutions and Mr Andrew Li, Senior Public Prosecutor of the Department of Justice, for the Respondent
[1] Section 7 of the RFREO states:-
“A person who desecrates the regional flag or regional emblem by publicly and wilfully burning, mutilating, scrawling on, defiling or trampling on it commits an offence and is liable-
(a) on conviction on indictment to a fine at level 5 and to imprisonment for 3 years; and
(b) on summary conviction to a fine at level 3 and to imprisonment for 1 year.”
[2] Before Mr Joseph To.
[3] Before Derek Pang J.
[4] Mr Martin Lee SC and Mr Carter Chim. The Respondent was represented by Mr David Leung DDPP and Mr Andrew Li SPP.
[5] (1999) 2 HKCFAR 442.
[6] Article 16 of the Bill of Rights, which brings into domestic legislation the provisions of Article 19 of the International Covenant on Civil and Political Rights, states:-
“Article 16
Freedom of opinion and expression
(1) Everyone shall have the right to hold opinions without interference.
(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.”
[7] Cap 383.
[8] See Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, at para 20.
[9] Contained in Article 16(1) of the Bill of Rights.
[10] At 447A-B. Litton, Ching and Sir Anthony Mason PJJ agreed with the Chief Justice’s judgment; Bokhary PJ delivered a separate concurring judgment.
[11] At 450G-H.
[12] At 456C-H.
[13] At 464I-J.
[14] 491 US 397 (1989).
[15] 496 US 310 (1990).
[16] In both cases, the majority opinion was delivered by Justice Brennan.
[17] See, for example, Texas at 410 and Eichman at 315.
[18] Contained in the Judgment of Chief Justice Li.
[19] In other words, interference with the right.
[20] See para 4 footnote 6 above.
[21] See para 5 above.
[22] (2005) 8 HKCFAR 229, at para 71 referring to para 22 of the Siracusa Principles.
[23] CCPR/C/GC/34 (2011).
[24] Huang v Secretary of State for the Home Department [2007] 2 AC 167; Bank Mellat v Her Majesty’s Treasury (No. 2) [2014] AC 700.
[25] See para 10(3) above.
[26] Para 22 of the Siracusa Principles.
[27] At 459C.
[28] FAMC 41 of 2003, unrep. 10 November 2003.
[29] Rule 7 of the Hong Kong Court of Final Appeal Rules Cap 484A states:-
“7. Application that discloses no reasonable grounds, is frivolous or fails to comply with Rules
(1) Where the Registrar is of the opinion either on the application of the Respondent or of his own motion that an application discloses no reasonable grounds for leave to appeal, or is frivolous or fails to comply with these Rules, he may issue a summons to the applicant calling upon him to show cause before the Appeal Committee why the application should not be dismissed.
(2) The Appeal Committee may, after considering the matter, order that the application be dismissed or give such other directions as the justice of the case may require.”
[30] The word “may” appears in Rule 7(1).
[31] This is to be contrasted with a decision to issue a summons under Rule 7 which does involve the Registrar being of the view that the application discloses no reasonable grounds for leave to appeal, or is frivolous or fails to comply with the rules.