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

CACV 541/2019

[2019] HKCA 1396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 541 OF 2019

(ON APPEAL FROM HCAL 2949/2019)

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CACV 542/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 542 OF 2019

(ON APPEAL FROM HCAL 2945/2019)

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________________

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J U D G M E N T

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Poon Ag CJHC (giving the judgment of the Court):

Introduction

1.  By a judgment handed down on 18 November 2019,[1] G Lam and Chow JJ allowed the judicial reviews brought against the Emergency Regulations Ordinance, Cap 241 (“ERO”) and the Prohibition on Face Covering Regulation, Cap 241K (“PFCR”).  By a decision handed down on 22 November 2019,[2] the learned Judges made the following declarations (“Declarations”):

(1)     that:

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

(b)   consequently, the PFCR made pursuant to the ERO on an occasion of public danger is accordingly invalid and of no effect;

(2)     that section 3(1)(b), (c) and (d) of the PFCR is inconsistent with article 27 of the Basic Law and articles 14, 16 and 17 of the Hong Kong Bill of Rights, and is therefore null, void and of no effect;

(3)     that section 5 of the PFCR is inconsistent with rights under article 28 of the Basic Law and article 5 of the Hong Kong Bill of Rights, and is therefore null, void and of no effect.

2.  For the reasons that they gave, the Judges refused the respondents’ application for a temporary validity order (“TVO”) that the relevant parts of the ERO and the PFCR do remain valid and of legal effect or alternatively a temporary suspension order (“TSO”) to postpone the coming operation of the Declarations until disposal of the appeals.  But they made a short TSO until 29 November 2019 in anticipation of the respondents’ appeals and to allow the respondents time to apply to the Court of Appeal for such interim relief as appropriate.

3.  The respondents filed the notices of appeal on 25 November 2019, contending that the Judges erred in their judgment on a number of grounds.  In expediting the appeals, the Court has since fixed the hearing on 9 and 10 January 2020.

4.  By summonses dated 26 November 2019, the respondents renewed their applications for the TVO or alternatively the TSO before this Court.  The Court then directed that the applications be disposed of on papers with directions for filing of submissions and granted an interim interim TSO until 10 December 2019, that is today, until the disposal of the applications.

5.  We now hand down our judgment.

Appeals reasonably arguable

6.  The background facts leading to the proceedings below have been fully set out in the judgment below.  We shall not repeat them here.

7.  Now is not the occasion for us to go into details the Judges’ reasons in allowing the judicial reviews and the merits of the appeals, which will be fully canvassed at the substantive hearing in January 2020.  Having read all the materials placed before us, we are satisfied that the appeals are reasonably arguable.  We will proceed on that basis in approaching the present applications.

TVO/TSO and the rule of law

8.  In very brief terms, a TVO permits the executive, during such temporary validity period, to function pursuant to what has been judicially declared unconstitutional.  And the executive is shielded from legal liability for so functioning.  On the other hand, a TSO does not render what has been judicially declared to be unconstitutional constitutional or valid.  Nor does it provide the executive a shield from legal liability during the temporary suspension period.  It only prevents the executive from acting in contravention of an order in operation and removes the risks for the official’s action amounting to a contempt of court.

9.  The leading case on the juridical basis in granting a TVO and TSO is the Court of Final Appeal’s judgment in Koo Sze Yiu v Chief Executive of the HKSAR (2006) 9 HKCFAR 441.  It has been applied subsequently in a number of cases, including Chan Kin Sum Simon v Secretary for Justice & Another, HCAL 79/2008, unreported, 11 March 2009; per A Cheung J (as Cheung PJ then was) and Vallejos v Commissioner of Registration & Another [2011] 6 HKC 469, per Lam J (as Lam VP then was).

10.  The rule of law lies at the heart of the judicial discussions on TVO and TSO.

11.  In public law litigation where the court strikes down a law or executive act as being unconstitutional, it does not alone imperil the rule of law.  For in such a situation, the remedy in the form of corrective legislation or alternative act must be constitutionally compliant, as prescribed by the rule of law.  Mere inconvenience occasioned by the time required to pass the corrective legislation or implement the alternative act alone does not justify any further judicial interference with the striking out order.  See Koo Sze Yiu, per Bokhary PJ at [19].

12.  However, when there are wholly exceptional circumstances going well beyond the mere inconvenience, the rule of law recognizes the need to respond to the circumstances timeously as appropriate. In Koo Sze Yiu, Bokhary PJ at [28] explained:

“The rule of law involves meeting the needs of law and order. It involves providing a legal system able to function effectively. In order to meet those needs and preserve that ability, it must be recognised that exceptional circumstances may call for exceptional judicial measures.”

He went on to point out that TVO and TSO are examples of what the courts have seen as such exceptional judicial measures to do practical justice as the exceptional circumstances warranted.

13.  In Vallejos, Lam J at [197] summed up the position thus:

“When such [an exceptional] situation arises, the court as the ultimate guardian of the rule of law should exercise its discretion by reference to what is necessary to do practical justice in meeting the needs of law and order of the society as a whole.”

14.  In short, at a first glance, it might be thought that granting a TVO giving temporary validity to the impugned legislation or executive act (assuming that the court has jurisdiction) or a TSO temporarily suspending the striking down of the same seems to be contrary to the rule of law.  But on a more mature consideration, if justified, a TVO or TSO serves the rule of law by doing practical justice as a necessary judicial measure to meet the specific needs of law and order arising from the prevailing exceptional circumstances.

Jurisdiction to grant a TVO doubtful

15.  Although TVOs were granted in the overseas cases surveyed by Bokhary PJ in Koo Sze Yiu at [20]‑[27], he at [32] deliberately left open the question if the court in Hong Kong has the power to make a TVO on the basis that the appeal did not call for such a decision to be made.  Sir Anthony Mason NPJ at [61] took a juridical point.  He regarded whether the court has jurisdiction to make a TVO as a very large question, involving fundamental doctrinal questions relating to the separation of powers, the role of the courts, the relationship between the courts and the legislative branch of government, as well as the rule of law and considerations of justice, and of community protection and welfare.  We echo Sir Anthony Mason’s reservations.

16.  We would add that a TVO may also involve doctrinal and logical difficulties to be granted by the very court which has come to the conclusion of unconstitutionality, as the Judges highlighted in their decision,[3] referring to the observation of Tang VP (as Tang NPJ then was) in A & Others v Director of Immigration, unreported, CACV 314-317/2007, 18 July 2008, at [8], in the context of an application to stay the court’s declaratory order with the effect of suspending its judgment:

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

17.  The respondents have not really tackled the doctrinal and logical difficulties in their written submissions.  That being the case, and based on our current understanding of the authorities as they now stand, we are not persuaded that the respondents have overcome the jurisdictional hurdle in their application for a TVO.  We would on that basis refuse it.

The doctrine of necessity

18.  As already alluded to, a TVO (assuming the court has jurisdiction) or a TSO is an exceptional judicial measure which can only be made in truly exceptional circumstances.  The test is necessity: see Koo Sze Yiu, per Bokhary PJ at [28], [35], Sir Anthony Mason NPJ at [60]; and Vallejos, per Lam J at [197].  In a similar rein, in Chan Kin Sum Simon, A Cheung J at [79] emphasized that in determining if there is sufficient justification for a TSO, the test is essentially one of necessity involving a balancing exercise of the relevant, and sometimes, competing interests.

The present applications

19.  Turning to the present applications, the respondents basically rehearsed the submissions run below.  The primary point taken by the respondents is that if the court does not grant the TVO/TSO sought, the immediate striking down of the relevant parts of the ERO and the PFCR would (a) pose a danger to the public; (b) threaten the rule of law and (c) result in the deprivation of benefits from deserving persons.

20.  On (a), the respondents’ case is that the striking down of the constitutionality of the ERO in respect of public danger would severely tie the Government’s hands in dealing with the current state of serious public danger;[4] that striking down of the ERO and the PFCR would encourage protestors to take part in the already very violent protests, posing heightening risk to the personal safety of members of the public as well as their conduct of daily life; that the Government will be deprived of all tools which can be implemented on an urgent basis to deal with the ever-changing situation and ever-escalating level of violence and vandalism; and that the fueling of violent protests and demonstrations will no doubt pose an imminent danger to the public.[5]

21.  On (b), the respondents’ case is that the striking down of the ERO and the PFCR will encourage protestors/rioters to take part in the already very violent protests; and that there cannot be any greater threat to the rule of law other than a portion of members of the public being allowed to breach the law repeatedly and in an ever-escalating manner with the Government’s hands tied.[6]

22.  On (c), the respondents’ case is that Hong Kong is facing unprecedented violent attacks and the Government needs to resolutely use all available legal means to stop the escalating violence and vandalism, to restore public peace, to safeguard the general public’s rights and freedom in their daily living and to prevent a small number of rioters from destroying them.[7]

23.  For present purposes and without prejudice to the parties’ stance at the substantive hearing, based on the evidence and the parties’ written submissions before us, we accept that Hong Kong is in a state of public danger.  In this regard, as the Judges observed:[8]

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

24.  Further, although in the days leading to the last District Council Election held on 24 November, there was no major clashes in protests, there were still ongoing calls on online platforms such as LIHKG encouraging netizens to attend Yau Tsim Mong area with their masks to support protesters remaining in the Hong Kong Polytechnic University and a large number of masked protesters did respond to such a call.  After the Election, there was at least one incident where assemblies turned unlawful and violent in Yau Ma Tei, Tsim Sha Tsui and Hung Hom on 1 December, resulting in shops and MTR stations burgled, vandalized and hurled with petrol bombs.

25.  We also take judicial notice that before the march on 8 December 2019, police arrested 11 people for alleged possession of fire arms.  Although the massive march was by and large peaceful, some shops and banks along the route were damaged by some protesters. Most alarmingly, the entrances to the Court of Final Appeal and the High Court Building were set on fire, which was widely condemned.

26.  We accept, for present purposes, that law and order in Hong Kong is still under serious threats by the ongoing wanton violence, which jeopardize the stability and prosperity of the society.  These are truly exceptional circumstances.

27.  However, it is still incumbent on the respondents to justify the exceptional judicial measure of TSO by reference to the doctrine of necessity.  And in considering necessity, it must be borne in mind that we are dealing the period between now and the disposal of the appeals which, as said, will be heard on 9 and 10 January 2020.  In other words, we are considering if it is necessary to make a TSO to meet the needs of law and order arising from the exceptional circumstances during that short period of time, and no more.

28.  Now the TSO sought covers both the ERO and the PFCR.  Correspondingly, there are two working propositions underlying the respondents’ primary point.  That is to say, during the short period of time pending the outcome of the appeals, in order to effectively deal with the needs of law and order in Hong Kong:

(1)     the CEIC will have to invoke the ERO on the public danger limb to enact further emergency regulations; and

(2)     the relevant parts of the PFCR will be continued to be enforced, in terms of arrest and prosecution.

29.  On the first working proposition, we note that on the evidence as at now, and we emphasize that we can only deal with the applications as the evidence now stands, there is no indication by the Government that pending the outcome of the appeals, the CEIC will have to invoke the ERO on the public danger limb to enact further emergency regulations to deal with the current law and order situation in Hong Kong.  What the CEIC wishes is to do is to keep all her legal options open.

30.  If in the meantime, there were material changes of circumstances such that the CEIC would have to invoke the ERO on the public danger ground, Lam J’s observations in Vallejos, at [188]‑[201], which we will refer to without repeating, provide some useful guidance.  Based on Lam J’s observations, we state our views as follows.

31.  By bringing these appeals, the Government maintains that the impugned provisions in the ERO are constitutional.  The Government is quite entitled to do so, in particular when both the Judges and this Court consider that the appeals are reasonably arguable.  While the appeals are pending, the Government still has the responsibility to effectively deal with the needs of law and order in Hong Kong.  What the Government should do in the meantime is of course entirely a matter for the Government, but it should firmly bear in mind the uncertainty of the outcome on appeal on the question of constitutionality of the impugned provisions of the ERO.  If the CEIC, in good faith, still considers it necessary to invoke the ERO on the public danger limb to enact further emergence regulations, a TSO will not absolve the Government from the consequences of acting contrary to the judgment below, which is the law unless overturned on appeal.  Nor will it prevent a party adversely affected to challenge the Government in court by way of judicial review, which is most likely.  In all probabilities, a TSO will not meaningfully assist the Government in effectively and swiftly dealing with law and order situation in Hong Kong.  As compared to an ineffectual TSO, a speedier resolution of the uncertainty on the constitutionality of the impugned provisions of the ERO is a far more preferable option.  So in terms of necessary action, the Government should instead consider asking the Court to bring forward the hearing of the appeals as far as practicable.

32.  On the second working proposition, again based on the evidence before us, there is no suggestion that the police or the prosecution will continue to enforce the relevant parts of the PFCR.  On the contrary, the police had already announced that they would suspend the enforcement of the PFCR on the day the judgment was handed down 18 November 2019. It is further the respondents’ position that all ongoing proceedings for offences under the PFCR will not be proceeded further until the determination of the appeals.  In light of the judgment below, these are sensible stances to be adopted pending determination of the appeals.

33.  The respondents are concerned that the immediate declaration of invalidity of the impugned provisions of the ERO and the PFCR would send the wrong messages to the public and encourage protesters to wear masks in protests and embolden into committing acts of violence and vandalism.  In our view, the clear and correct message that a reasonably informed member of the public would get is this.  Although the impugned provisions of the ERO and the PFCR have been held unconstitutional by the Court of First Instance, there is still uncertainty because of the pending appeals and the indication by both the Judges and this Court that they are reasonably arguable.  So despite the judgment below, if one is to continue to wear masks in situations caught by the PFCR in the meantime, he has to face the inherent risk of having acted contrary to the law should the respondents later succeed on appeal.

34.  The other points taken by the respondents either concern the merits of the appeals, or put their primary point in slightly different ways without altering the substance.  We do not think they take the respondents any further.

35.  For the above reasons, the respondents have not satisfied us that for the short period when appeals and their outcome are pending, it is necessary to continue to utilize the ERO on the public danger limb or the relevant parts of the PFCR, held to be unconstitutional for the time being, to deal with the law and order situation in Hong Kong.  In consequence, the respondents have not made good the case of necessity for the court to invoke its inherent jurisdiction to take the exceptional step of granting the TSO sought.

Conclusion

36.  Accordingly, we refuse the present applications both for the TVO and the TSO with costs to the applicants, to be taxed if not agreed with a certificate for two counsel, and legal aid taxation for the applicants’ own costs, if applicable.

37.  To conclude, we must emphasize that by refusing the present applications and stating our reasons in doing so, we have in no way determined the appeals one way or the other.  And our judgment is not and should not be regarded as an encouragement or condonation for any person to cover their face in situations caught by the PFCR.  In this regard, we repeat our observation at [33] above.[9]