HKSAR v. FONG KWOK SHAN AND ANOTHER

[English Translation – 英譯本]

HCMA 666/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLETE JURISDICTION

Certificate of Application to the Court of Final Appeal for Leave to Appeal

MAGISTRACY APPEAL NO. 666 OF 2015

(ON APPEAL FROM ECCC NO. 3792 OF 2014)

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REASONS FOR JUDGMENT

1.  Three defendants stood trial in this case. The 1^st applicant was the 1^st defendant (D1) and the 2^nd applicant was the 3^rd defendant (D3).  D1 and one other were jointly charged with two counts of contravening an administrative instruction of the Legislative Council[2]. D3 was charged with one count of obstructing an officer of the Legislative Council in the execution of duty[3].

2.  The duo was brought before the Eastern Magistrates’ Court[4], where they pleaded not guilty. The magistrate found them both guilty after trial. They appealed against the convictions, and the appeal was dismissed.

3.  The two now apply to me under section 32 of the Hong Kong Court of Final Appeal Ordinance[5] that there is involved in the decision of the case a point of law of great and general importance.

4.  After hearing the submissions on the day of hearing, a certificate was granted based on the points of law put forward by D1, whereas D3’s application was refused.  The grounds are set out below.

5.  The prosecution’s accusations against the two applicants are respectively summarised below:

In respect of the first charge against D1 and the second charge against D3

On 7^th May 2014, D1 displayed the T-shirt she wore with the characters “保衛將軍澳” (Defend Tseng Kwan O) printed on it and passed a message with a “Swastika” in it to the second defendant to display at the glass curtain wall at the public gallery of the Legislative Council Chamber. When PW1, a security guard, went up to pull this message, D3 pulled the hand / arm of PW1 while the second defendant also pressed onto the message, such that PW1 only tore off a corner of the message.

D1 was alleged to have displayed a sign and D3 obstructed an officer.

In respect of the third charge against D1

On 13^th May 2014, D1 and the second defendant behaved noisily at the scene. They refused to leave and remained noisy after being warned by security guard(s).

D1 was alleged to have been disorderly.

6.  In this application, D1 is represented by Mr Harrison C. H. Cheung[6]of Counsel, whereas D3 is unrepresented[7].

7.  Mr Cheung of Counsel has raised two points of law:

“First: Whether section 11 of the Administrative Instructions for Regulating Admittance and Conduct of Persons, enacted under section 20(b) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 of the Laws of Hong Kong is incompatible with the principles that ensure freedom of speech under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance, thus rendering that section 11 unconstitutional.

Second: The contention is the same as above, but the focus ultimately falls on Section 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Persons.”

8.  The point of law raised by D3 in writing is that:

“Whether sections 11 and 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Persons, enacted under section 20(b) of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 of the Laws of Hong Kong are incompatible with the principles that ensure freedom of speech under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights Ordinance, thus rendering Sections 11 and 12(1) unconstitutional.”

In his submissions, he added that based on the above, there was no legal basis for the law enforcement by the officers of the Legislative Council.

9.  Mr Andrew H. C. Li, Senior Public Prosecutor representing the respondent gave the following reply:

In relation to the points of law raised by D1

(1)  In considering the case, the trite law has already been correctly cited by the Court of First Instance, and a balance between the appellant’s basic rights and public interest has been struck;

(2)  There is no room for reasonable arguments on the issues raised by D1, therefore it does not satisfy the requirements for the granting of leave to appeal, and no certificate should be granted; otherwise, cases which touch upon the constitution shall all fall within the jurisdiction of the Court of First Instance.

(3)  In any event, the issues raised do not satisfy the requirement of great and general importance.

In relation to the point of law raised by D3

(1)  While handling the appeal, there was no need for the Court of First Instance to decide on the issue that the security officer was not in the execution of his duty at the time of the offence on the assumption that Charge 1 was unconstitutional. Therefore, the point of law D2 has raised does not involve the decision in the case, and it does not satisfy the requirement for the granting of the certificate.

(2)  In any event, what D3 has raised shows an overly narrow understanding of the offence, and offers no room for any reasonable arguments.

(3)  Actually, the decision of the case involved only the finding of facts with no arguments on questions of law.

The applicants’ replies

10.  Mr Cheung of Counsel replied that the issues he raised were certainly questions of law, and were ones of great and general importance.  He submitted that taking into account of a keen turnout, and that there were more new faces among the elected councillors, it was likely that more citizens would like to exercise their rights at the forthcoming Legislative Council meetings.  The general public had the right to know whether the restrictions in question were constitutional, so that they would know what they could and could not do.

11.  D2 made no reply.

Discussion and considerations

In relation to the questions of law raised by D1

12.  On how to approach the subject of whether the provisions in the Ordinance are constitutional, the Court of Final Appeal has given directions in a series of cases.  The direction of the considerations and principles are already very clear.

13.  My duty in the present case is to find whether the restrictions in question are constitutional by applying the trite law.  This is a finding of law, certainly not a decision by a fact-finder (as in the case of a jury).

14.  The legal issues raised by D1 have never been decided by any court handling appeals, so there are no cases to draw on.

15.  Taking into account the submissions from both parties, I am of the view that the issue which concerns whether the freedom of speech of the citizens should be so restricted is great and important.  Moreover, although the restrictions are only confined to certain behaviours in the Legislative Council Chamber, they also restrict these behaviours of every one of the citizens present in the Legislative Council. Each and every citizen has the right to know whether there is the need to comply with these restrictions; therefore, I am of the view that the issue is of general importance.

16.  Whether the issues offer any room for reasonable arguments, I am of the view that they need to be considered only when deciding whether leave to appeal should be granted.

17.  Therefore, I grant the certificate pursuant to the two points of law raised by D1.

In relation to the point of law raised by D3

18.  There is really no need to come to a decision on the issue D3 has raised now when deciding on D3’s application for appeal.

19.  On the issue of whether ‘the decision of the case involves a point of law of great and general importance’, I have considered whether a laxer approach should be adopted, especially when the offence D3 is charged with suggests the element of an officer in the due execution of his duty.

20.  Having considered the matter carefully, I concur with the submissions made by Mr. Li.  In the absence of any decision by this Court in relation to this matter, no certificate should be granted.

21.  Therefore, a certificate based on the point of law raised by D3 is refused.