HKSAR v. LEUNG KWOK HUNG AND OTHERS

Judgment Summary (English Version)

Judgment Summary (Chinese Version)

HCMA 16/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 16 OF 2003

(ON APPEAL FROM KCCC NO. 8456 of 2002)

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Dates of Hearing : 24-27 February & 24-25 June 2004

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J U D G M E N T

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Hon Ma CJHC :

1. In this appeal, we are concerned with the limits to the freedom of peaceful assembly as contained in the Public Order Ordinance, Cap.245 (“the POO”).  The issues raised are of considerable importance.  On 23 June 2003, Pang J directed that this magistracy appeal be heard by the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance, Cap.227.

2. On 25 November 2002, the 1st Appellant was convicted at Kowloon City Magistracy of holding an unauthorized assembly on 10 February 2002 contrary to section 17A(3)(b)(i) of the POO.  He was bound over on his own recognizance for $500 for a period of 3 months.

3. The same day, the 2nd and 3rd Appellants were also convicted at the Kowloon City Magistracy of the offence of assisting in the holding of an authorized assembly contrary to section 17A(3)(b)(i) of the POO.  Each was similarly bound over on a recognizance of $500 for a period of 3 months.

4. The Appellants had all pleaded not guilty to these offences.  The trial took place over the course of 10 days from September to November 2002.  The presiding magistrate was the Chief Magistrate, Mr Patrick Li.  The reasons for his decision to convict dated 25 November 2002 have been reported in [2002] 4 HKC 564.

5. The convictions arose from a demonstration that took place on the morning of 10 February 2002 (a Sunday).  At about 11:00 am that day, a number of people gathered at Chater Garden to get ready for a procession.  The 2nd Appellant used a loudhailer calling on all participants to gather.  There was to be a demonstration apparently to protest against the conviction of a fellow activist for assault and obstruction on a police officer.

6. The police were already present at the scene since there was a right of abode demonstration also in Chater Garden at the time.  One of the police officers on duty ascertained that the person in charge of the procession with which we are concerned, was the 1st Appellant.  The 1st Appellant was then a well-known activist.  He is now a member of the Legislative Council.

7. The 1st Appellant was asked to go through a notification procedure under the POO in order to get the necessary permission to hold the procession but he refused.  He was warned for not making an application.  At about 11:16 am, the procession comprising about 40 people set off from Chater Garden in the direction of the Police Headquarters at Arsenal House on Arsenal Street.  They proceeded along Queensway and although the police asked them to use the pedestrian pavement, the demonstrators refused and used the left traffic lane of that road instead.  The three Appellants (the 1st Appellant being in the April 5th Action Group, the 2nd and 3rd Appellants being part of the Hong Kong Federation of Students) were in the second row of the marchers.  As the demonstrators marched along Queensway, others joined in so that eventually the numbers swelled to about 96 persons.  They did eventually reach the Police Headquarters and demonstrated there for about an hour before dispersing.  The Magistrate found the procession to have been peaceful at all times.

8. Nothing turns on the facts in this appeal.  Instead the focus has been on the constitutionality of certain provisions in the POO.  It is the first time that this Court has been faced with this important issue.  In this appeal, the 1st Appellant was unrepresented and made submissions on his own behalf.  Mr Michael Blanchflower SC and Mr Y L Cheung appeared for the 2nd and 3rd Appellants.  Mr Gerard McCoy SC, Mr Gavin Shiu and Mr David Leung appeared for the Respondent.

9. Before going into the issues in this appeal, I would first like to identify the relevant provisions of the Basic Law, the International Covenant on Civil and Political Rights (“the ICCPR”) and the Bill of Rights dealing with the freedom of assembly and then outline the statutory scheme under the POO regarding public gatherings, meetings and processions.  The constitutional challenge made by the Appellants is against sections 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A of the Ordinance.

The freedom of assembly

10. Article 27 of the Basic Law (which is under Chapter III containing the fundamental rights of residents of Hong Kong) states in part that Hong Kong residents shall have the freedom of speech and of assembly.

11. The freedom of assembly (together with its limitations) is also contained in Article 21 of the ICCPR : -

“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.”

12. The provisions of the ICCPR apply in Hong Kong and the freedoms contained therein are guaranteed under the Basic Law.  Article 39 reads :-

“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

13. The freedom of assembly is also guaranteed under Article 17 of the Bill of Rights under the Hong Kong Bill of Rights Ordinance, Cap.383, which reproduces in identical terms Article 21 of the ICCPR.

14. This freedom is of course closely linked to the freedom of speech and demonstration (which are expressly guaranteed by Article 27 of the Basic Law) and of expression (which is a stated right in Article 19 of the ICCPR and Article 16 of the Bill of Rights).  There is in the circumstances of the present case no real distinction between these freedoms.  For convenience, I will only address the freedom of assembly as being the applicable right in this appeal.

15. The fundamental rights and freedoms guaranteed under the Basic Law must be given a purposive and generous meaning in order to give to Hong Kong residents the full measure of such rights and freedoms : - see Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, at 28D-29B.  As the Chief Justice remarked earlier in the judgment in that case, these freedoms lie at the heart of Hong Kong’s existence.  Quite simply, the existence of such freedoms (including the freedom of assembly) make Hong Kong a truly free society.  They are to be jealously guarded.

16. Although the fundamental freedoms are to be construed generously, they are not absolute.  Notwithstanding that the freedom of assembly is expressed in unqualified terms in Article 27 of the Basic Law, Article 39 makes provisions for limits to be imposed on that right if the following conditions are met : -

(1)    any restrictions must be “prescribed by law”; and

(2)    any restrictions must also not contravene the ICCPR.

17. The term “prescribed by law” assumes considerable importance in this appeal and indeed constitutes the main point of controversy.  I will deal further with this aspect below.

18. The relevant provision in the ICCPR is of course Article 21 (set out in paragraph 11 above).  That Article provides that any restriction on the right of peaceful assembly must be : -

(1)    in conformity with the law (this term repeats the concept of “prescribed by law” in Article 39 of the Basic Law); and

(2)    “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”.

These limitations are reproduced word for word in Article 17 of the Bill of Rights.

19. It will presently be necessary to analyze in detail these limitations on the freedom of assembly, but I should stress at this point that any restrictions on fundamental freedoms are to be narrowly construed and the burden lies on the party seeking to restrict (usually the Government) to justify such restrictions : - see HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, at 457B-C, reiterated by the Court of Final Appeal in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480, at 490D-E (paragraph 24).

20. Sometimes, particularly where the provision guaranteeing a right does not itself contain stated limitations, the courts have adopted the following test (in the form of three questions) in relation to any legislation that limits a fundamental freedom of right : -

(1)    Can sensible and fair-minded people recognize that the objective of the legislation (that restricts the right) is sufficiently important to justify limiting a fundamental right?

(2)    Are the measures designed to meet the legislative objective rationally connected to it?

(3)    Are the means used to restrict the fundamental right proportionate to such objective; in other words that the means are no more than is necessary to accomplish the objective?

21. I have here relied on the statements of principle of this Court in R v Man Wai Keung (No.2) [1992] 2 HKCLR 207 at 217 and in Lee Miu Ling v Attorney General [1996] 1 HKC 124, at 130D-G; and also the decision of the Judicial Committee of the Privy Council in Elloy de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and Others [1999] 1 AC 69, at 80G-H.

22. Where a provision containing the right also itself expresses the possible limits to that right (such as Article 21 of the ICCPR and Article 17 of the Bill of Rights), not forgetting of course Article 39 of the Basic Law, it is a somewhat moot point whether the three-stage test set out in the previous paragraph continues to apply.  Certainly, in Ng Kung Siu, the Court of Final Appeal when dealing with the limits to the freedom of expression in the context of legislation prohibiting the desecration of the national and regional flags, did not see the need to use the three-stage test, instead concentrating on the limitations contained in Article 19 of the ICCPR (which deals with the freedom of expression).  Upon analysis, the three-stage test is probably subsumed anyway within the limitations contained in Article 39 of the Basic Law and in the ICCPR.

23. These limits to the freedom of assembly reflect the need to balance the fundamental rights of the individual against society’s interests as a whole.  In Ng Kung Siu, the Chief Justice drew attention to the Preamble of the ICCPR in which it is stated that an individual does have duties to other individuals and the community to which he belongs : - at 456I.  In Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, at 704F-G, Lord Bingham of Cornhill said this regarding the jurisdiction of the European Court of Human Rights :-

“The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the [European Convention for the Protection of Human Rights]”.

24. In the decision of the Supreme Court of Canada in Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385, McLachlin J (now the Chief Justice) said this at 461-2 : -

“The Charter recognizes that the exercise of constitutional rights inevitably raises conflicts.  Sometimes the conflict is with another right.  Sometimes the conflict is with another interest, usually public.  As a result, rights cannot be viewed as absolute.  Sometimes a right must yield to another, conflicting right; sometimes a right must give way to an overriding objective of public importance.  The difficult question is where the balance between the conflicting rights or interests should be struck.

It follows from the fact that the right in question is constitutionally guaranteed as fundamental in our society that it should be trenched on no more than is clearly necessary and justified.  Only if certain conditions are established can a limit on a fundamental right or freedom be justified.  First, the state should be required to demonstrate a compelling reason for the limitation.  Second, the limit on the right should not go beyond what is necessary to achieve that objective – it should not be overbroad, and should contain sufficient safeguards to ensure that as the law is applied, the right in fact will not be infringed more than necessary.  This latter danger may occur, for example, if too much discretion is granted to administrators charged with applying the limit or law in question.”

The reference in that last sentence of this passage to “too much” discretion being given to persons in authority is an aspect to which I shall have to return.

25. The critical question in the present case is which way the balance tilts in relation to the relevant provisions of the POO.  I now identify these provisions.

The relevant provisions of the POO

26. The particular provisions which are said by the Appellants to be unconstitutional have already been set out in paragraph 9 above, namely, sections 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A.  They deal with the holding of public processions.

27. The POO has as part of its objects, as stated in the Preamble, the maintenance of public order and the control of meetings, processions, unlawful assemblies and riots.  It dates back to 1967, the year of the Star Ferry riots.  It has since been amended a number of times.  We have been taken through the legislative history of this Ordinance and it will be necessary to refer to this aspect later.

28. A public procession is defined in section 2(1) as a procession in, to or from a public place.  A procession includes a meeting held in conjunction with a procession.  The term “meeting” is defined as including a gathering or assembly of persons convened or organized for the purpose of expressing their views on issues or matters of interest of concern to the general public or a section of the public.  There is little doubt therefore that the gathering of persons on 10 February 2002 including the three Appellants was a public procession within the meaning of the Ordinance.

29. Part III of the Ordinance (headed “CONTROL OF MEETINGS, PROCESSIONS AND GATHERINGS”) contains most of the provisions under challenge.  Section 6 states the general powers of the Commissioner of Police (whose powers can be delegated : section 52) relating to, inter alia, public processions : -

“6.    General powers of the Commissioner of Police

(1)   If the Commissioner of Police reasonably considers it to be necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others, he may, in such manner as he thinks fit, control and direct the conduct of all public gatherings and specify the route by which, and the time at which, any public procession may pass.

(2)   The Commissioner of Police may, if he reasonably considers it to be necessary to prevent an imminent threat to the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others, in such manner as he may think fit, control and direct the extent to which music may be played, or to which music or human speech or any other sound may be amplified, broadcast, relayed, or otherwise reproduced by artificial means, in –

(a)    public places; or

(b)    places other than public places if such music, human speech or sound is directed towards persons in public places.

(3)   The Commissioner of Police may give such orders as he reasonably considers necessary to achieve the purpose mentioned in subsections (1) and (2).”

30. This provision is not specifically targeted by the Appellants but in view of the arguments raised by them, it must follow that this is likewise a provision that is said to be unconstitutional.  Of note in this provision is the express reference to the concept of the Commissioner of Police considering it necessary to take action in the interests of national security, public order (ordre public) or for the protection of the rights and freedoms of others.  These four aspects are exactly those specified in Article 21 of the ICCPR and Article 17 of the Bill of Rights, with the exception of public health or morals.  Where any or more of these conditions apply, the intention behind section 6 is that the freedom of assembly can be restricted.  In the judgment of this Court in HCMA 949/2002, handed down the same time as the judgment in this case, I have referred to these restrictions as the Permitted Restrictions.  I now do so likewise for convenience.  These stated restrictions fall to be scrutinised in the present case in relation to the critical issue whether the restrictions on the freedom of assembly contained in the provisions under challenge are “prescribed by law”.

31. Sections 13, 13A, 14 and 15 (which are under challenge) govern the position regarding public processions and can now be conveniently set out : -

“13.  Regulation of public processions

(1)    A public procession may take place if, but only if –

(a)    the Commissioner of Police is notified under section 13A of the intention to hold the procession;

(b)    the Commissioner of Police has notified under section 14(4) the person that he has no objection to the procession taking place or is taken to have issued a notice of no objection; and

(c)    the requirements under section 15 are complied with.

(2)    This section shall not apply to –

(a)    any public procession which is not a procession on a public highway or thoroughfare or in a public park;

(b)    any public procession consisting of not more than 30 persons;

(c)    any public procession of a nature or description specified by the Commissioner of Police by notice in the Gazette.

13A.  Notification of public processions

(1)    For the purposes of section 13, notice of the intention to hold a public procession shall be given in writing to the Commissioner of Police –

(a)    in a case of a public procession held solely for the purposes of a funeral at which the body is present, not later than 24 hours prior to the forming of the procession;

(b)    in any other case –

(i)    not later than 11 a.m. on the same day of the week in the preceding week as the day on which the procession is intended to be held; or

(ii)    where the last day for giving notice under subparagraph (i) would fall on a general holiday, not later than 11 a.m. on the first day immediately preceding that day which is not a general holiday.

(2)    Notwithstanding subsection (1), the Commissioner of Police may, and shall in any case where he is reasonably satisfied that earlier notice could not have been given, accept shorter notice than is specified in that subsection.

(3)    In cases where the Commissioner of Police has decided not to accept shorter notice than is specified in subsection (1), he shall as soon as is reasonably practicable inform in writing the person purporting to give the notice of his decision and the reasons why the shorter notice is not acceptable.

(4)    Notice under this section shall be given by being delivered in person by the person giving it, or by any person on his behalf, to the officer in charge of a police station, and shall contain particulars of the following matters –

(a)    the name, address and telephone number of –

(i)    the person organizing the procession and any society or organization promoting or connected with the holding of the procession; and

(ii)   a person able to act, if necessary, in place of the organizer for the purpose of section 15(1)(a);

(b)    the purpose and subject-matter of the procession;

(c)    the date, precise route, time of commencement and duration of the procession;

(d)    in respect of any meeting to be held in conjunction with the procession, the location, time of commencement and duration of the meeting; and

(e)    an estimate by the person organizing the procession of the number of people expected to attend the procession.

(5)    The Commissioner of Police shall issue written acknowledgment of receipt of notice under this section to the person giving or delivering the notice.

14.    Right of Commissioner of Police to object to public procession

(1)    Subject to subsection (5), the Commissioner of Police may object to a public procession being held if he reasonably considers that the objection is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others.

(2)    If the Commissioner of Police objects to the public procession being held he shall as soon as is reasonably practicable and within the time limit specified under this Ordinance  -

(a)    notify in writing the person who gave notice under section 13A or a person named for the purposes of section 13A(4)(a)(i) of his objection and reasons; or

(b)    publish a written notice of objection and reasons in the manner he thinks fit; or

(c)    post a written notice of objection and reasons in the place he thinks fit.

(3)    The Commissioner of Police shall not issue a notice of objection for a public procession –

(a)    if notice of a procession is given in accordance with section 13A(1)(b), later than 48 hours before the notified commencement time of the procession;

(b)    if shorter notice of 72 hours or more is accepted by the Commissioner of Police under section 13A(2), later than 24 hours before the notified commencement time of the procession;

(c)    if shorter notice of less than 72 hours is accepted by the Commissioner of Police under section 13A(2), later than the notified commencement time of the procession,

this subsection does not apply to a procession held solely for a funeral as referred to in section 13A(1)(a).

(4)    If the Commissioner of Police does not object to a public procession being held he shall notify the person who gave notice under section 13A or a person named for the purposes of section 13A(4)(a)(i) in writing of his having no objection as soon as is reasonably practicable and within the time limited for him to give notice of objection under this Ordinance.  If the Commissioner does not notify, post or publish his having an objection in accordance with subsection (2) and within the time limit specified under this Ordinance, the Commissioner is taken to have issued a notice of no objection for the public procession.

(5)    The Commissioner of Police shall not exercise his right under subsection (1) to object to holding of a public procession if he reasonably considers that the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others could be met by imposing conditions under section 15(2).

15.    Requirements and conditions applying to public processions

(1)    At every public procession –

(a)    there shall be present throughout the procession either the person who organized the procession or, if he is not present, a person nominated by him to act in his place;

(b)    good order and public safety shall be maintained throughout the procession;

(c)    the control of any amplification device that is used in such a manner that it causes a noise that would not be tolerated by a reasonable person shall, if so required by a police officer, be surrendered to the police officer for the duration of the procession.

(2)    The Commissioner of Police may, where he reasonably considers it necessary in the interests of national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others, impose conditions in respect of any public procession notified under section 13A, and notice of any condition so imposed shall be given in writing to the person by whom such public procession is so notified or to some other person concerned in the holding, convening, organizing or forming of the procession and shall state the reasons why such condition is considered necessary.

(3)     The power conferred by subsection (2) to impose conditions includes a like power to amend any such condition previously imposed and reference in this Ordinance to a condition imposed under or pursuant to subsection (2) shall, except where the context otherwise requires, include reference to an amendment to such a condition pursuant to this subsection.

(4)     Every person who organizes a public procession, or any person acting in place of such person for the purpose of subsection (1)(a), shall comply forthwith with any direction given to him by a police officer for ensuring compliance with or the due performance of any of the requirements of subsection (1) or any conditions imposed under subsection (2).

(5)    In this section –

(a)    ‘procession’ （遊行）includes the period from first assembly to final dispersal of a procession; and

(b)    references to a public procession do not include references to a procession referred to in section 13(2).”

32. Essentially, the scheme governing the regulation and control of public processions is as follows : -

(1)    The provisions only apply to public processions involving more than 30 persons : - section 13(2)(b).  They are therefore applicable on the facts of the present case.

(2)    Before public processions (such as the one that took place on 10 February 2002) can take place, a notification procedure has to be followed.  This consists of notifying the Commissioner of Police in writing at least 7 days before the date of the procession (more specifically, no later than 11:00 am 7 days before the procession) : section 13A(1)(b).  Later notice can be given if the Commissioner of Police is reasonably satisfied that earlier notice could not have been given :  section 13A(2).  Where he does not accept a shorter notice, he should as soon as reasonably practicable inform in writing the notice of his decision and the reasons why shorter notice is not acceptable :  section 13A(3).

(3)    Details of the procession must be provided when notice is given.  The requisite details, which include the purpose or subject matter of the procession, the time and route and an estimate of the numbers involved, are set out in section 13A(4).

(4)    No public procession may be held unless the Commissioner of Police has notified the organizers that he has no objection to the holding of the procession : - section 13(1)(b).  This notice of no objection must be issued as soon as reasonably practicable and within the time limits given to the Commissioner of Police to object to the holding of the procession (being those stipulated in section 14(3)) : - section 14(4).  If the Commissioner of Police fails to issue a notice of no objection or an objection within the specified time limits, he is deemed to have issue a notice of no objection for the public procession : - section 14(4).

(5)    The Commissioner of Police can, however, object to the public procession taking place if (but only if) he reasonably considers that the objection is necessary “in the interests of national security or public order (ordre public) or for the protection of the rights and freedoms of others” (the Permitted Restrictions) : - section 14(1).  Moreover, he cannot lodge an objection if he reasonably considers that such interests could be met by imposing conditions instead on the public procession under section 15(2) : - section 14(5).

(6)    The imposition of conditions as to the holding, convening, organizing and forming of the procession is governed by section 15(2).  Essentially, such conditions can only be imposed by the Commissioner of Police if he reasonably considers it necessary by reason of the Permitted Restrictions.

(7)    Where the Commissioner of Police objects to a public procession or wishes to impose conditions thereon, he is required to state reasons for this view : - section 14(2) and 15(2).

33. The above summary of the scheme underlines the following features : -

(1)    The right of the Commissioner of Police to object to or impose conditions on a public procession is limited to where he “reasonably considers it necessary” to do so by one or more of the Permitted Restrictions.  He is otherwise powerless to prohibit or impose conditions.

(2)    Where the Commissioner of Police does object to or impose conditions on a public procession, he must give reasons so that if necessary, the relevant person can appeal to the Appeal Board on Public Meetings and Processions : - see section 16.  The Appeal Board is a body established under section 43 of the Ordinance, with its constitution and powers set out in section 44.  Its chairman must be a judge (whether retired or serving).  The Appeal Board is required to act expeditiously.  Section 44A(6) states :-

“44A.  Supplementary provisions relating to appeals

(6)    Where any notice of an appeal is given the Appeal Board shall consider and determine the appeal with the greatest expedition possible so as to ensure that the appeal is not frustrated by reason of the decision of the Appeal Board being delayed until after the date on which the public meeting or public procession is proposed to be held.”

34. Where a public procession is not authorized being in contravention of section 13 (for example where a valid notice of objection is issued by the Commissioner of Police or, as in the present case, where no notification is given to the Commission of Police at all) any person who holds or assists in the holding of the unauthorized assembly is guilty of an offence.  Section 17A(3) of the POO states : -

“(3)    Where any public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, is an unauthorized assembly by virtue of subsection (2) –

(a)    every person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in or forms or continues to form part of any such unauthorized assembly; and

(b)    every person who –

(i)    holds, convenes, organizes, forms or collects, or assists or is concerned in the holding, convening, organizing, forming or collecting of, any public meeting or public procession referred to in subsection (2)(a); or

(ii)    continues or attempts to continue to hold or conduct, or to direct otherwise than for the purpose of securing obedience to an order given or issued under section 6 or 17(3), any public gathering such as is referred to in subsection (2)(b), or any public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, referred to in subsection (2)(c),

after the same has become an unauthorized assembly as aforesaid,

shall be guilty of an offence and shall be liable –

(i)    on conviction on indictment, to imprisonment for 5 years; and

(ii)    on summary conviction, to a fine of $5,000 and to imprisonment for 3 years.”

35. The system I have just described relating to public processions also applies, with some differences, in the case of public meetings.  I have already dealt with the definition in the Ordinance of “meeting” (see paragraph 28 above).  A public meeting is a meeting that is held in a public place.  The difference between a public meeting and a public procession seems only to be that the participants of a meeting do not move.  Very similar (though not identical) requirements exist in the case of public meetings regarding notification to the Commissioner of Police and the power of the Commissioner of Police to prohibit or impose conditions (together with reasons having to be provided), these provisions only applying to numbers that exceed 50 : - see sections 7 to 11.  The system of no objection does not exist in the case of public meetings.  Unless prohibited by the Commissioner of Police, a public meeting can take place : - section 7(1).  The important similarity, however, for present purposes, is the provision that the Commissioner of Police can only prohibit or impose conditions on a public meeting where he considers such “to be necessary” by reason of the Permitted Restrictions.  Accordingly, just as in the case of section 6 of the POO, although the provisions relating to public meetings are not the direct subject matter for challenge by the Appellants in this case, their objections apply equally to these provisions as well.

36. I now turn to the issues in this appeal.

Issues in the appeal

37. Put shortly, the Appellants challenge the constitutionality of those provisions in the POO set out in paragraph 9 above.  Particular objection is aimed at the notification system contained in sections 13 to 15 of the Ordinance (the essential features of which I have described in paragraph 32 above).  To be even more specific, the objection is over the power of the Commissioner of Police either to object to a public procession or impose conditions thereon where he reasonably considers such “necessary in the interests of national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others”.  This proved ultimately to be the only real focus of the arguments in this appeal.

38. Apart from the notification system, the Appellants also challenged two other aspects of the POO : -

(1)    The offence creating provisions of section 17A.

(2)    The appeal mechanism involving the Appeal Board on Public Meetings and Processions : - sections 16, 43, 44 and 44A.

39. As to these matters : -

(1)    The issue of the constitutionality of section 17A depends on the determination of the constitutionality of the notification provisions of the Ordinance.  No separate submissions were made with regard to this section.

(2)    In relation to the appeal mechanism provisions, they are not in my view engaged for the purposes of the present appeal.  The Appellants did not undergo any part of the notification procedure in the first place.  Their position was quite simple : since they objected in principle to a notification scheme, they refused to comply with the requirements of that scheme.  Accordingly, none of the situations which could give rise to an appeal to the Appeal Board came about.  It may arguably have been different if the Appellants had said that their objection to the notification system was based on the appeal provisions being unconstitutional, but this was not, I understand, the basis of their objections at all.  Ultimately, during the course of submissions, the Appellants seem to accept that this was the position.  It is therefore unnecessary to say more about this aspect.

40. Mr McCoy also raised the preliminary argument that in fact the constitutionality of sections 14 and 15 of the POO were not engaged in the present appeal either.  Therefore, he submitted, it was not necessary for the Court to determine the issue of whether the words in these provisions giving power to the Commissioner of Police to object to or impose conditions on public processions where he reasonably considered such necessary by reason of the Permitted Restrictions, were constitutional.  The basis of Mr McCoy’s submission here was that since the whole notification system was not even embarked on by the Appellants, the relevant provisions were not engaged.  It would be academic in these circumstances for the Court to determine the constitutional issues arising out of sections 14 and 15.

41. I regret that I cannot agree with these submissions.  The whole basis for the Appellants’ refusal to give notification as required by section 13A of the POO was that they did not want to be subject to a system whereby the Commissioner of Police could object to or impose conditions on a public procession where he reasonably considered such necessary by reason of the Permitted Restrictions.  The central feature of the notification system in the POO is not just a mere notification of a procession given to the police, but that the Commissioner of Police is able to object to the planned public procession (and thus prohibit it) or impose conditions thereon where he reasonably considers it necessary to do so by reason of one or more of the Permitted Restrictions.  Seen in this light, sections 14 and 15 are integral to the whole notification system.  If these provisions are held to be unconstitutional, as the Appellants invite this Court to hold, the whole basis of the notification system for public processions as contained in the POO disappears as well.  In these circumstances, I conclude that these sections are engaged in this appeal and the issue of their constitutionality must therefore be resolved.

42. Is the notification system in the POO for public procession constitutional?

The constitutionality of the notification system in the POO

43. On a general note, the Appellants’ objection to the notification system in the POO was not directed at the giving of notification of a proposed public procession to the Commissioner of Police as such.  The general objection was to any system whereby the Commissioner of Police was in a position to object to or impose conditions on the public procession; in other words, participants in a public procession could not do so as of right and uninhibited in any way, instead being subjected to what was referred to as a licensing or authorization system.

44. I can deal with this general objection quite briefly :-

(1)    Where the ICCPR itself provides limits to the freedom of assembly, it follows from this that where circumstances exist such that those limits come into play, then it would be permissible to restrict the exercise of that freedom.  In the case of Article 21, apart from the requirement that the assembly must be peaceful, the stated restrictions are those which are (a) in conformity with the law (“prescribed by law”) and (b) necessary in the interests of national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others.

(2)    In the case of the notification system for public procession that sections 13 to 15 of the POO seek to achieve, it can perhaps quite easily be seen that such a system is not only desirable but vital where there is a necessity by reason of any one or more of the Permitted Restrictions.  Two examples may perhaps help to make the point : -

(a)    Where a public procession which would incite racial hatred is planned, a notification procedure which would allow the police to prohibit the procession is obvious and necessary.  Were it otherwise, the public procession would proceed with the dire consequences that would inevitable follow.

(b)    Where a public procession is planned that would disrupt rush-hour traffic in a major thoroughfare, again it is necessary to have in place a notification procedure so that suitable conditions can be imposed on the procession.

(3)    The case authorities also show that a notification system is by itself unobjectionable even where there exists the power to prohibit : -

(a)    In Dr Manfred Nowak’s book “U.N. Covenant on Civil and Political Rights : CCPR Commentary”, it is stated in paragraph 25 at page 381 : -

“With regard to freedom of assembly, one is primarily reminded here of the observance of those ordinances that are in place in nearly all States to ensure the smooth functioning of gatherings and demonstrations.  For example, the maintenance of public order in street traffic, as well as the effective exercise of the State’s duty of protection, requires that the authorities be informed in due time of the location and time of a planned assembly and that they be granted access to it.  Since a gathering or demonstration may also be prohibited on account of its object (e.g., due to propaganda for war or advocacy of hatred), States Parties may also introduce a duty to provide information as to its purpose.  Although the legal systems of many States distinguish between a licensing system and a mere notification system and often consider only the latter compatible with freedom of assembly, it is possible to interpret ordre public so broadly as to permit a general licensing system.”

(b)     This passage was cited with approval in the decision of the High Court of New Zealand in Police v Beggs [1999] 3 NZLR 615, at 630-31.

(c)    This was also the conclusion reached in a number of decisions of the European Commission of Human Rights : - Rassemblement Jurassien v Unité Jurassienne v Switzerland, Application No. 8191/1978 (1979) 17 DR 93; Cengiz Ciraklar v Turkey, Application No. 19601/1992, F v Austria, Application No. 14923/1989 (1993) 15 EHRR at CD 68, J v Austria, Application No. 15509/1989 (1993) 15 EHRR at CD 74.

45. Still on a general note, the 1st Appellant argued in the alternative even if a notification and authorization system were by itself unobjectionable, this was so only if the courts would be the authorizing body rather than the Commissioner of Police.  In short, he did not trust the police but trusted the courts instead.  Forcefully though this was put, I do not agree with it.  No justification, evidential or otherwise, was given for why the Commissioner of Police or his delegates could not properly discharge their responsibilities under the POO, other than the 1st Appellant’s inherent distrust of the police.

46. Generalities aside, I now turn to the arguments that were raised as to the constitutionality of the specific wording of the notification system contained in sections 13 to 15 of the POO.  The Appellants made two main points, both by reference to the requirements of Article 39 of the Basic Law and Article 21 of the ICCPR : -

(1)    The provisions were not “prescribed by law” (the term used in Article 39 of the Basic Law) or “in conformity with the law” (the term in Article 21 of the ICCPR).

(2)    The Respondent had not discharged the burden of showing that the provisions were “necessary”.

I deal with each in turn.  These became the main points in this appeal.

47. In Gurung Kesh Bahadur, the Chief Justice said this about the term “prescribed by law” at 493 A-D (paragraph 34) : -

“The expression signifies that a law must be formulated with a sufficient degree of precision - just how much depends upon the nature and content of the subject matter in question - so that the individual is given some indication as to how he may regulate his conduct. The requirement that restrictions must be ‘prescribed by law’ could not be satisfied by the existence of general discretionary powers for immigration control vested in immigration officials under the Ordinance and by their undertaking administratively the exercise of considering the imposition of restrictions on such constitutional rights of non-permanent residents on a case by case basis at immigration counters at entry points.  Accordingly, the Director’s supplementary submission must also be rejected.”

48. This passage highlights two points of focus.  First, the particular law under consideration must be sufficiently precise and clear so that a citizen is given some indication as to how he must regulate his conduct.  Secondly, a law must not be so vague as to give too wide a power to those in authority.  These points of focus, two sides of the same coin, were referred to as the rationales of the doctrine of vagueness :  see the decision of the Supreme Court of Canada in R v Nova Scotia Pharmaceutical Society, 74 CCC (3d) 289, at 306C-D.

49. Reference was made to Gurung Kesh Bahadur by Sir Anthony Mason in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381.  There, the Court of Final Appeal had to consider the question whether the offence of misconduct in public office met the requirement in Article 39 of the Basic Law of being “prescribed by law” : - see 401J-403J.

50. I make the following observations in relation to this passage : -

(1)    The term “prescribed by law” has two facets : - first, it had to be accessible (which I take to mean that a citizen must be able to find out the relevant law easily and adequately; in other words, it must not be in any way hidden); secondly, the law had to be precisely formulated.  There is of course no controversy over the first of these facets in the present case.

(2)    As to the second facet, the degree of precision must be such that a citizen should be able “if need be with appropriate advice” to foresee the consequences of his conduct and regulate his affairs accordingly.  This quoted term was referred to again in the judgment at 410G.  They are important in my view because the test here recognizes the fact that many laws and statutes contain legal concepts perhaps difficult for a layman to comprehend fully and yet, from a legal point of view, be sufficiently precise.

(3)    Absolute precision in a law and an ability to foresee every consequence with certainty may be desirable, even highly so, but this is often unattainable.  Indeed, excessive rigidity should be avoided if the law is to keep pace with and adapt to changing circumstances.  This aspect was recognized in the decisions of the European Court of Human Rights in The Sunday Times v The United Kingdom (1979) 2 EHRR 245, at 271 (paragraph 49), Hashman v The United Kingdom (2000) 30 EHRR 241 at pagagraph 31 and S W v The United Kingdom (1996) 21 EHRR 363 at paragraph 36.  These cases were referred to in the judgment of Sir Anthony Mason who found much guidance from the jurisprudence of the European Court of Human Rights.

(4)    The need for flexibility when considering whether a provision is “prescribed by law” also finds support from the decision of the Supreme Court of Canada in Nova Scotia Pharmaceutical Society at 313B-C where Gonthier J said :

“One must be wary of using the doctrine of vagueness to prevent or impede state action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself.  A delicate balance must be maintained between societal interests and individual rights.”

This passage was expressly referred to in Shum Kwok Sher at 411H (paragraph 90).

(5)   The degree of flexibility which can be accorded in any given case will depend on the subject-matter of the statute in question.  And where flexibility is desirable (and therefore excessive rigidity is undesirable) a broadly defined provision will not be struck down.  As Lord Hope of Craighead said in Dharmarajen Sabapathee v The State [1999] 1 WLR 1836, at 1843 E-F (in the context of criminal offences) : -

“In such situations a description of the nature of the activity which is to be penalized will provide sufficient notice to the individual that any conduct falling within that description is to be regarded as criminal.  The application of that description to the various situations as they arise will then be a matter for the courts to decide in the light of experience.  In this way the law as explained by its operation in practice through case law will offer the citizen the guidance which he requires to avoid engaging in conduct which is likely to be held to be criminal.”

This case was also referred to in Shum Kwok Sher at 410F-411B (paragraph 89).  Shum Kwok Sher of course dealt with the offence of misconduct in public office, an offence which had often in the past been criticized as being too vague.

(6)    It has been said that the threshold for a finding of vagueness is high : - Shum Kwok Sher at 411C (paragraph 90).  Reference was made in Nova Scotia Pharmaceutical Society to a provision being so “unintelligible” that insufficient guidance is given for legal debate : - at 310B-C (in a passage that was also quoted in Shum Kwok Sher at 411D).  In the decision of the majority of the Supreme Court of Canada in Attorney-General of Quebec v Irwin Toy Ltd (1989) 58 DLR 577, at 617, it was said : -

“Absolute precision in the law exists rarely, if at all.  The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work.  The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies.  On the other hand, where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no ‘limit prescribed by law’.”

In Committee for the Commonwealth of Canada v Canada at 438, L’Heureux-Dubé J referred to a standard that was so vague as to be “incomprehensible”.

51. These aspects of precision and flexibility apply equally when one considers the second point of focus referred to in paragraph 48 above, namely provisions which give discretionary powers to the authorities or officials such as the police.  There is no doubt that sections 14 and 15 of the POO fall within this category.

52. Here, the courts have consistently warned of provisions that allow such a broad discretion to the authorities that the arbitrary exercise of power can take place : - see the decisions of the European Court of Human Rights in Malone v United Kingdom (1984) 7 EHRR 14, at 41 and in Hilda Hafsteinsdóttir v Iceland, Application No. 40905/1998, 8 June 2004 at paragraphs 55 to 56; the decisions of The Supreme Court of Canada in Attorney-General of Quebec v Irwin Toy Ltd at 617, Committee for the Commonwealth of Canada v Canada at 462B, Nova Scotia Pharmaceutical Society at 308E-H (referring to the “standardless sweep”) and 313D-F.

53. The objection here cannot in my view just be to the fact that a broad discretion is given to authorities such as the police.  The test is higher.  The objection must be that such a broad discretion is given to the authorities that an arbitrary and subjective exercise of power can take place; in other words, this can give rise to abuse.  Of course, an arbitrary exercise or power or abuse can take place even in the case of a tightly drafted law, but that is not the situation that is relevant to be considered in this context.  The arbitrary exercise of power or abuse is in the context of where such excesses are able to go unchecked.  In other words, a provision will be objectionable where it permits the relevant authorities to exercise power in an arbitrary or abusive way without redress.  In Nova Scotia Pharmaceutical Society, Gonthier J said this at 308G-H : -

“A law must not be so devoid of precision in its content that a conviction will automatically flow from the decision to prosecute.  Such is the crux of the concern for limitation of enforcement discretion.”

He added at 313E  : -

“Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements.  In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of this discretion.”

In Malone v United Kingdom, the European Court of Human Rights used the term “unfettered power”.  In Re Munhumeso [1994] 1 LRC 282, at 294, Chief Justice Gubbay of the Supreme Court of Zimbabwe referred to “discretionary power of a regulatory authority being uncontrolled”.

54. With the above principles in mind, I now return to the notification system contained in sections 13 to 15 of the POO.  The Appellants’ argument here was simply that the power given to the Commissioner of Police under sections 14 and 15 to object to public processions or impose conditions thereon was so vaguely worded that they did not satisfy the requirement of being “prescribed by law”.  The concern was that these provisions give the police power that could be arbitrarily or subjectively exercised, or even abused.

55. In his clear and forceful submissions, Mr Blanchflower homed in on the words “national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others”.  The focus was in particular on the concept of “ordre public”.  It was argued that these were such difficult and vague concepts that in effect, much too wide a discretion was given to the Commissioner of Police.  A subsidiary, but connected, argument was that without adequate guidance given to the police, these concepts could not be readily understood or even applied by a policeman.

56. I am not persuaded by these arguments.  In my view, the notification scheme contained in sections 13 to 15 of the POO regarding public processions is not unconstitutional and the provisions contained therein do satisfy the “prescribed by law” requirement : -

(1)    I have already dealt with the generalities in paragraphs 44 and 45 above.

(2)    The terms “national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others” are terms that are found exactly in Article 21 of the ICCPR itself, an international covenant that is expressly recognized in Hong Kong at the highest possible level, namely, the Basic Law itself.  No court as far as I know has ever held these (or equivalent) terms in the ICCPR to be so vague an uncertain so as to be unconstitutional.  This would indeed be a startling proposition.  There are very many authorities (not to mention textbooks such as Dr Nowak’s Commentary referred to in paragraph 44 above) that deal with the meaning of these terms.  Section 2(2) of the POO states the following : -

“(2)    In this Ordinance the expressions ‘public safety’, ‘public order (ordre public)’, ‘the protection of public health’ and ‘the protection of rights and freedoms of others’ are interpreted in the same way as under the International Covenant on Civil and Political Rights as applied to Hong Kong.  ‘national security’ (國家安全) means the safeguarding of the territorial integrity and the independence of the People’s Republic of China.”

It can therefore be seen that apart from the definition of national security, all other terms are to have the same meaning as those very terms as contained in the ICCPR.

(3)    Thus, it is difficult in the circumstances to see as a matter of principle alone how it could be said that such words are so vague or uncertain so as to be constitutionally objectionable.  They are certainly not “unintelligible” or “incomprehensible” (see paragraph 50(6) above).  To suggest this of the relevant provisions in the POO is to suggest the same of the Article 21 of the ICCPR itself.  And yet this is far from being correct.  The provisions in the ICCPR are not just a collection of vague, open-ended or woolly concepts.  As Lord Nicholls of Birkenhead said in Wilson v First County Trust Ltd (No.2) [2004] 1 AC 816, at 835D-E (paragraph 35) : -

“Human Rights conventions are concerned with substance, not form, with practicalities and realities, not linguistic niceties.”  (Emphasis added)

(4)    Particular objection was taken to the term “ordre public” in that this was said to be a vague term.  This term does not appear in parentheses separately in the Chinese text, but, for the reasons that Yeung JA articulates in his judgment, there is no doubt that this concept applies in the Ordinance.  This term was the subject-matter of the Court of Final Appeal’s decision in Ng Kung Siu & Another where it was analyzed by the Chief Justice at 457E-460E.  The term was of course relevant in that case in the context of an argument over the restriction of a fundamental freedom (in that case the freedom of expression).  After going through the relevant authorities, the Chief Justice said this at 459I-460A regarding ordre public : -

“The following points can be drawn from the materials referred to above.  First, the concept is an imprecise and elusive one.  Its boundaries cannot be precisely defined.  Secondly, the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole.  Examples include : prescription for peace and good order; safety; public health; aesthetic and moral considerations and economic order (consumer protection, etc).  Thirdly, the concept must remain a function of time, place and circumstances.”

(5)    Mr Blanchflower stresses that the Court of Final Appeal regarded the concept of ordre public as “imprecise and elusive” and that its “boundaries cannot be precisely defined”.  However, in my view, it would be going too far to suggest that the Court of Final Appeal was in effect saying that the term was too vague and somehow meaningless, unintelligible or incomprehensible.  Quite the contrary.  As that extract from the judgment set out above shows, the concept was explained and even examples given.  Further, the point made that the concept remains “a function of time, place and circumstances” is important.  It emphasizes the flexibility that is inherent in the term, enabling it to be applied to situations perhaps as yet unforeseen and which may arise in the future in Hong Kong.

(6)    Though perhaps imprecise and elusive, the term ordre public is capable of a sensible, judicial interpretation (as shown by Ng Kung Siu itself).  I fail to see in these circumstances how this or any of the other terms in sections 14 and 15 of the POO can somehow give rise to an unchecked power given to the police which can be exercised arbitrarily, subjectively or abusively.  Following the decision of the Court of Final Appeal in Ng Kung Siu, at least a description of the nature of the term is given (cf the speech of Lord Hope of Craighead in Dharmarajen Sabapathee v The State quoted at paragraph 50(5) above).

(7)    Any wrongful exercise of power by the police can and will be checked by the courts.  The Appeal Board on Public Meetings and Processions may provide the first avenue of recourse, beyond it to the courts by way of applications for Judicial Review.  This, I might add, is in conformity with the Siracusa Principles on the Limitations and Derogation Provisions in the International Covenant on Civil and Political Rights at paragraphs 22 to 24 (these provisions being expressly set out in the judgment of the Court of Final Appeal in Ng Kung Siu at 459B-E) : -

“22.    The expression ‘public order (ordre public)’ as used in the Covenant may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.  Respect for human rights is part of public order (ordre public).

23.    Public order (ordre public) shall be interpreted in the context of the purpose of the particular human right which is limited on this ground.

24.    State organs or agents responsible for the maintenance of public order (ordre public) shall be subject to controls in the exercise of their power through the parliament, courts, or other competent independent bodies.”

(8)    I accept that all this is not to say that the terms “national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others” will always be easy to understand and apply.  However, as the authorities make clear, both the citizen who has to be able to regulate his affairs and the police may take legal advice (see paragraph 50(2) above).  They and their legal advisers, like the courts, can have regard not only to our own case law but also the jurisprudence and textbooks of other jurisdictions.

(9)    Lastly, I have not found of much assistance the fact that the comparable legislation of other jurisdictions sometimes use different terminology to that found in sections 14 and 15 of the POO.  The fact that such differences exist does not in any way support the argument that the adoption in the POO of the terms “national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others” is not “prescribed by law”.  No authority was provided for this proposition.  Moreover, the terminology used in some of the overseas legislations are just as broad as the said terms in the POO, for example : -

(a)    In sections 12 and 14 of the Public Order Act 1986 in the United Kingdom, powers are given to the police to impose conditions on public processions and assemblies where there is a reasonably belief that such may result in “serious public disorder” or “serious disruption to the life of the community”.  Similar powers of control exist in Northern Ireland under the provisions of the Public Processions (Northern Ireland) Act 1998 :  see sections 8 and 11.

(b)    In section 21 under Part III of the Criminal Justice (Public Order) Act 1994 in the Republic of Ireland, access of persons to a place may be restricted if this is necessary “for the purpose of preserving order”.

(c)    In the Public Assemblies Ordinance 1982 of the Australian Capital Territory, power is given to the Commission of Police of the Australian Federal Police to oppose the holding of a public assembly if there is a likelihood of “serious public disorder” or if the assembly would, in the circumstances, be of “unreasonable” size or duration : - see section 16.

(d)    In the Peaceful Assembly Act 1982 of the State of Queensland, the Commissioner of Police or a local authority may impose conditions on the holding of a public assembly if such relate to “the protection of the rights and freedoms of persons” (section 11(3)(a)(iii)).  This restriction is of course one of the admitted restrictions under the POO.  A local authority may even apply to a court for an order that the holding of a public assembly not be authorized if the authority has reasonably formed an opinion that “serious public disorder would be likely to happen” or “the rights or freedoms of persons would be likely to excessively interfered with” (section 13(1)(b)).

57. It is in the nature of legislation dealing with public processions or assemblies or meetings that broad terms are necessarily adopted.  To be unduly restrictive or, as the Appellants suggest, actually to enumerate the various situations in which powers of control can be exercised, would be to deny that degree of flexibility that appears to me to be essential for this type of activity.  The police must be given necessarily wide powers of control so as to be able to deal with situations which may be difficult, if not impossible, at this stage to envisage.  The decision of the Court of Final Appeal in Ng Kung Siu emphasizes the broadness of the concept of ordre public, but justifies by reference to the concept being a “function of time, place and circumstances” thus recognizing the difficulties in predicting situations which may arise.  It must be recognized that time, place and circumstances may change in Hong Kong.

58. The point made in the previous paragraph provides in my view the answer as well to the second objection raised by the Appellants against the notification scheme, namely, necessity.  Here, the Appellants had complained that no evidence was adduced to show that the amendments to the POO that brought in the concepts of the Permitted Restrictions were necessary to be introduced in Hong Kong.  We were taken through various extracts from Hansard and the history of the public order legislation in Hong Kong since 1967.  For my part, I have not found this exercise useful.  I reject the approach whereby the Court is asked to look at the social position prevailing in Hong Kong at the time of the legislative changes so as to ascertain whether it was in fact necessary for the legislature to have passed the relevant legislation.  This approach, quite apart from requiring the Court to second-guess the motives of the legislature in passing any legislation, seems to ignore the preventative nature of legislation.  Legislation is not merely passed to deal with present mischiefs but also mischiefs which may arise in the future, the precise nature of which may not always be predictable.

59. I accept that in examining the aspect of necessity, the Court must ask itself the question whether the restrictions on the fundamental right in question are proportionate to the aims sought to be achieved thereby : - see Ming Pao Newspapers Ltd and Others v Attorney-General of Hong Kong [1996] AC 907, at 917D-E.  I am of the view that the present POO reflects the legislator’s wish to have as much flexibility as is permitted under the Basic Law.  The powers given to the police are not excessive and indeed are strictly within those boundaries expressly marked out in the Basic Law and the ICCPR themselves.  The legislation is in my view both rational and proportionate to its aims.

60. When considering constitutional challenges, it may be appropriate for the courts to give weight to the way that the legislature has considered the legislation in question and exercised its judgment.  This is sometimes referred to as the “margin of appreciation” accorded by the courts to the legislature.  See here the decision of the Court of Final Appeal in Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415, at 448B-449A (paragraphs 102-4).  For my part, I see no reason at all why this Court should not accord the legislature this “margin of appreciation” in its decision to adopt the same terms of limitation as those contained in the ICCPR itself.  Quite apart from those aspects already gone into, a strong case can be made out that in choosing to adopt the same terms (which are to be interpreted in the same way as under the ICCPR : - see section 2(2) of the POO), the legislature has sought to avoid any problems that can arise through the use of different terminology.

61. Accordingly, I am of the view that the notification scheme for public processions contained in sections 13 to 15 of the POO is constitutional, whichever test is adopted (see paragraphs 20 to 22 above).  It follows from this that section 17A is constitutional as well.

62. Lastly in this context, I should just deal with the decision of the Full Bench of Ciskei in African National Congress (Border Branch) and Another v Chairman, Council of State of the Republic of Ciskei and Another (1992) 4 SA 434.  There, one of the issues was whether a provision (section 43 of the National Security Act of Ciskei) which enabled a magistrate to ban or impose conditions on a public gathering was constitutional.  The section in question expressly permitted a magistrate to refuse authorization for the holding of a meeting if he was satisfied in the interests of “national security or public safety or for the safeguarding of public health, the preservation of public morale, the prevention of crime or disorder or the protection of the rights or others”.  These were in exactly the same terms as the permitted restrictions found in the Ciskei constitution.  The Court held that the provision was repugnant to the constitution.  Mr Blanchflower relied on this case as authority to support his proposition that where a provision (such as sections 14 and 15 of the POO) merely as a matter of incantation, repeated the same wording as the constitutional limitations, such as those contained in Article 21 of the ICCPR), this was somehow not permissible.  I have two comments on this.  First, this was not the ground used by the Court to hold the offending provision unconstitutional in that case at all.  In fact, nothing was said in the judgment of the Court regarding the coincidence in wording.  Secondly, the reasons for the Court outlawing the provision there was that while it provided for safeguards in the case of decisions prohibiting public gatherings on the one hand, yet the power to impose conditions and the discretion there given to the Magistrate on the other hand were by contrast “totally unrestricted” : - at 454E.  This was the critical objection in that case as I read it.

Conclusion

63. To summarize the position, it is my view that the notification scheme contained in sections 13 to 15 of the POO is constitutional.  For the reasons given above, the impugned provisions are not to be regarded as unconstitutional and are not struck down.

64. Accordingly, I would dismiss the appeals of the Appellants and uphold their convictions.

Hon Stock JA :

Introduction

65. The development of the International Covenant on Civil and Political Rights (“ICCPR”) from preparatory through deliberation phases to acceptance in 1966 was a process that engaged the international community, comprising a host of sovereign states with a wide divergence of legal systems and political philosophies, for about eighteen years.  What emerged was the result of consensus on fundamental principles, which catered for widely disparate concerns and systems and to which the States Parties each agreed to give domestic effect.  As illustrated by subsequent history, which includes a wealth of comment by the body entrusted with monitoring the implementation of the ICCPR, namely the Human Rights Committee; the work of experts resulting in the Siracusa principles; and the jurisprudence of the constitutional and other courts of States Parties, there is much of the ICCPR, in its detail and in its implied as well as express provisions, that has required interpretation.  That is no surprise since:

“International instruments, produced by a complicated process involving many and diverse participants over many years, are subject to ambiguities and uncertainties, some unwitting, many knowing and even intentional.  Authentic interpretation requires careful study of the text of each provision in the context of the whole, the preparatory work (travaux préparatoires), the practice of states and international bodies, authoritative interpretation of similar provisions in other international instruments, the views of judges and scholars, and much else that may be relevant to the quest for meaning and understanding.

International human rights instruments, dealing with relations between a state and its own inhabitants, are particularly vulnerable to self-serving interpretation by governments.”

See Professor Henkin “The International Bill of Rights”, Preface.

66.  It is important to acknowledge that historical background as well as the truths inherent in Professor Henkin’s analysis, for only by so doing can one recognise that the Covenant, similar agreements such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), and any constitutional instrument which echoes or reflects them, are but statements of fundamental rights and standards against which the acceptability of particular domestic measures to give effect to specific rights, and which may limit those rights, are gauged.  And it is most particularly important to acknowledge that the Covenant does not absolve the States Parties from their duty to ensure that limitations of fundamental rights go no further than is necessary to achieve the legitimate objective of a particular piece of subject-specific legislation.  Indeed, that duty is inherent in the Covenant itself.  So too the Covenant does not absolve the States Parties of their obligation to ensure that laws are certain, that discretions reposed in the hands of the government and of public officials are so defined as to prevent or minimise the arbitrary exercise of power, thereby giving life to the principle that powers are subject to the rule of law and not to the rule of whomsoever happens to occupy a post at a given time.  It is for such reasons that the Covenant does not envisage the mere incantation, without more, in standard domestic legislation, of the phrases of the Covenant or parts thereof.  The Covenant envisages, and the Basic Law insists, that limitations upon rights are so framed as to be consonant with the principle of legal certainty.  Beyond that, an assertion that phrases such as ordre public are understandable and can be explained to and applied by the lay official, in the same way as more familiar concepts of law may be said to be ascertainable and readily applied in day-to-day situations by those untrained in the law, is an assertion which is of limited value; for even if in this particular instance that were true – which, in no sense pejorative of the lay official, I very much doubt – that does not of itself validate the limitation.  The issue of understanding and legal certainty – a requirement directed at he who wields power, as well as for the benefit of those affected by the use of that power – is only part of the exercise of ascertaining whether a signatory state, to whom is entrusted the encouragement of fundamental rights, let alone their protection, has limited a right in a particular context in a manner or to an extent that is permissible, for it must also demonstrate that it has limited the freedom no further than is necessary to achieve the legitimate objective of that legislation. 

67.  When the Public Order Ordinance, Cap. 245 (“the Ordinance”) was enacted in its present form in 1997, it prescribed circumstances in which public processions might be prohibited, or made the subject of conditions.  In prescribing those circumstances, the legislature used a device, reflected in the subject-specific legislation of no other jurisdiction save one, so far as counsel’s research has revealed.  The device was to utilize in subject-specific legislation the very terms (save for one phrase of no present consequence) of article 21 of the ICCPR without further definition, without moulding to the objective of the particular legislation, with no guidance whatsoever (whether in the legislation or in any executive or administrative rules) to those to whom the powers were given as to the permissible circumstances in which the fundamental right enshrined in article 27 of the Basic Law and by article 21 of the ICCPR, as applied by the Basic Law, might lawfully be infringed or limited.

68.  It is correctly said on behalf of the respondent that the fact that the device has not been used elsewhere is not of itself determinative of its constitutionality.  To the contrary, so goes the argument, the device was enlightened, for how better to ensure compliance with the ICCPR than to repeat its terms?  It that is correct, it would follow that all limitations on the enjoyment of fundamental rights, save those that permit of no limitation, could similarly safely be prescribed.  It might therefore be thought surprising that such a fool-proof, pre-packaged, and easy measure has not been adopted elsewhere, and that the Human Rights Committee, the very body that monitors compliance, has suggested that the provisions of the Public Order Ordinance do not comply with the Covenant.

69.  The absence of precedent for the use of the device should however, in my judgment, be attended by no surprise at all; for in taking that course, the requirements of the Covenant and of article 39 of the Basic Law have been breached, as have the provisions of article 27 of the Basic Law.  It seems clear to me that the use of that device without more:

(1)    reflects a fundamental misunderstanding of the intended relationship between international and constitutional instruments on the one hand, and subject-specific domestic legislation on the other;

(2)    shows either that sight has been lost of the requirement of article 39 of the Basic Law that any limitation was one that had to be “prescribed by law”, or a misunderstanding of the meaning in law and the import of that requirement;

(3)    fails to give effect to the principle that where a discretionary power is conferred upon a public official, a power moreover that affects the exercise of a fundamental freedom, the limits of the power should be clearly defined and circumscribed; no less so when breaches of such directives as that official may impart may result in a criminal conviction and in imprisonment of up to five years; and

(4)    evidences a failure to address the question whether the grounds thereby permitted for the banning of processions or the imposition of conditions went further than was necessary to achieve the legitimate objective of the statute.

The constitutional provisions

70.  Article 27 of the Basic Law provides, in so far as is relevant to this appeal, that:

“Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; ….”

There is in that Article itself no qualification to those rights.  Such qualification as is permitted is found in article 39 of the Basic Law which states that:

“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.” (Emphasis added).

71.  Article 2 of the ICCPR provides that:

“1.    Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.    Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.”

72.  Article 19 of the ICCPR recognizes the right of freedom of expression, the exercise of which:

“… carries with its 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;

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

73.  Article 21 of the ICCPR is the article with which this case is concerned:

“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.”  (Emphasis added).

74.  It will be noted in relation to these provisions:

(1)    that they are framed, not so as to provide restrictions which shall be imposed, but to provide the outer limits which may be imposed;

(2)    that the passage “… necessary in the interests of national security or public safety, public order (ordre public), or the protection of the rights and freedoms of others” which is so regularly used in those sections of the Public Order Ordinance with which we are concerned, is a direct importation of the very words of article 21 of the ICCPR with the omission only of the phrases “in a democratic society” and “the protection of public health or morals”; and

(3)    that the permission given by article 21 to impose limitations is one allowing the imposition of limitations to an extent that must be shown to be necessary.  The Article does not say that there is to be permitted such restriction on the right for which there is provided some justification within the parameters of national security, ordre public and so on.  In the context of public processions, and any other form of freedom of expression, some justification for a limitation will never be difficult to provide.  What is essential, however, is that the limitation and its extent is shown by the state to be necessary in context.

Propositions

75.  In the context of the issues in this case which arise in respect of sections 14 and 15 of the Public Order Ordinance and the relationship of those sections to articles 27 and 39 of the Basic Law and, therefore, article 21 of the ICCPR, I suggest that the following propositions are not controversial:

(1)    The right of public assembly is a fundamental right.  It is but an aspect of freedom of expression, itself a fundamental freedom.  Since it is a fundamental freedom, its enjoyment is not a matter of governmental concession.  Rather its enjoyment is the starting point, and there is on States Parties a positive duty to promote it.

(2)    To the constitutional guarantee embodied in articles 27 and 39 of the Basic Law, the courts are enjoined to accord a generous interpretation: see HKSAR v Ng Kung Siu and Another (1999) 2 HKCFAR 442 , 455.

(3)    The right to organize and to hold public processions as guaranteed by articles 27 and 39, when read together, is not an absolute right.  So much is obvious from the provisions of article 39 itself, the terms of article 21 of the ICCPR, the Siracusa Principles on the Limitation and the Derogation Provisions in the ICCPR, and from judgments of constitutional and other domestic courts in those jurisdictions to which the ICCPR, and the European Convention with its very similar provisions, have been given domestic effect.

(4)    However, restrictions on fundamental freedoms must:

(i)    be rigorously examined by the courts.  See, for example, R v British Broadcasting Corporation Ex parte Profile Alliance [2004] 1 AC 185, 224;

(ii)    be narrowly interpreted: see Ming Pao Newspaper Ltd v AG of Hong Kong [1996] AC 907, 917; HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442, 457B; Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480, 490;

(iii)    be justified by the government (Ng Kung Siu 457B) upon whose shoulders rests the burden of showing, convincingly, compellingly, that the restrictions in their effect (R v Oakes 26 DLR (4^th) 200, 227; Re Munhumeso and Others [1994] 1 LRC 282) go no further than is necessary for the protection of the legitimate interests that are sought to be protected (Ng Kung Siu, page 460E-F); and

(iv)    by reason of article 39 of the Basic Law, be “prescribed by law”, a requirement that “mandates the principle of legal certainty”.  See Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, para 60.

(5)    In deciding whether a restriction is justifiable and, if so, whether it goes further in its effect than is necessary for the protection of legitimate interests, the courts must accord to the legislature that which has been described as a degree of deference, in the sense of recognizing that the legislature and not the courts are entrusted with responsibility for formulating policy, and that the legislature in executing that responsibility is deemed to be possessed of facts and opinions the full range of which is not likely to be before the courts.  See Brown v Stott [2001] 2 WLR 817, 842; R v Johnson [2003] 1 WLR 1736, 1750; and Lau Cheong and Another v HKSAR (2002) 5 HKCFAR 318, para 79.  That said, references to the deference due to policy makers and the legislature must not be taken as diluting the responsibility of the courts to decide the law.  The ultimate arbiters of the issues of legal certainty, necessity and proportionality are the courts.  See R (Prolife) v BBC [2004] 1 AC 185, 240; Mulholland v Australian Electoral Commission  (2004) 78 ALJR 1279, paragraphs [32] and [237].

(6)    The manner in which, in any given instance, the donee of a power to restrict a liberty exercises such discretion as is conferred upon him in the context of that power, is irrelevant to the compatibility of the legislative provisions that grant that power with the constitutional imperatives dictated by the Basic Law.  The law conferring the power, rather than the beneficence or wisdom of the power’s donee, must itself be the guarantor of rights.  That is the essence of the rule of law.

(7)    A law that confers a discretion upon a public official to exercise a power must indicate the scope of that discretion with clarity.  See Malone v United Kingdom [1984] 7 EHRR 14, 41.  The degree of precision will depend on the subject matter: see Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49.

76.  If these propositions be correct, then it should be apparent that an examination of the compatibility of a legislative provision with constitutional guarantees in the Basic Law can never properly be confined to a comparison of the mere words of limitation in an ICCPR Article with the words of limitation in domestic legislation, even assuming that the meaning and scope of the limiting words in either are clear.  That is because there is more to the question of compatibility than appears on the face of the Article.  So, for example, article 21 itself does not include the phrase “prescribed by law”, yet we know that that requirement is fundamental to the question of compatibility.  So, too, the concept of proportionality is not expressed in the Covenant, but is nonetheless inherent in its scheme and intent.  (See a comment to the same effect in relation to the European Convention, by Emmerson “Human Rights and Criminal Justice” 2-99). 

77.  It inexorably follows that it is not enough to say that since the legislation expressly confines limitations to those necessary in the interests, say, of ordre public, the limitations provided by the legislation necessarily and self-evidently fall within the concept of ordre public; for that is merely the start of any proper analysis of compatibility.  What must then follow, quite apart from the issue of legal certainty, is the test of proportionality.  So it was that, having determined that “the legitimate societal interests in protecting the national flag and the legitimate community interests in the protection of the regional flag are interests which are within the concept of public order (ordre public)”, the Court of Final Appeal in Ng Kung Siu, (1999) 2 HKCFAR 442, 460, went on to say that:

“That these legitimate interests are within public order (ordre public) does not conclude the question.  One must [then] examine whether the restriction on the guaranteed right of freedom of expression is necessary for the protection of such legitimate interests within public order (ordre public)”.  (Emphasis added).

‘Prescribed by law’

78.  The phrase “prescribed by law” carries within it two concepts: the first is the requirement that the limitation be embodied, or must have a legal basis, within domestic law.  The second, the one with which we are concerned, is that:

“… the law itself must meet certain ‘quality of law’ requirements.  It must be publicly accessible so as to enable citizens to ascertain the applicable legal rules in advance; and it must be sufficiently precise for the individual to be able to regulate his conduct in accordance with the law.  More generally, the [European] Court has recognised that the principle of legal certainty distinguishes government based upon the rule of law from government characterized by excessive executive or judicial discretion, which carries with it the potential for arbitrary interference with individual rights.  A law which confers the discretion must, as a minimum, give an adequate indication of the scope of the discretion.”  (See Emmerson, para 2-81, page 87).  (Emphasis added).

79.  The principle was reviewed by Sir Anthony Mason NPJ in Shum Kwok Sher at pages 401-403:

“60.    International human rights jurisprudence has developed to the point that it is now widely recognised that the expression “prescribed by law”, when used in a context such as art. 39 of the Basic Law, mandates the principle of legal certainty.” 

And he referred to the Sunday Times case where the European Court of Human Rights had said:

“First, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case.  Secondly, a norm cannot be regarded as a ‘law’ unless it is 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.  Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable.  Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.  Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” 

80.  Much has been made on the respondent’s behalf by Mr McCoy, SC of this last phrase, as if it were somehow a passport to vagueness, acceptable provided that somewhere the term has been explained or applied in practice.  The Sunday Times case concerned the law of contempt, but more particularly a concept within that law, that which was referred to as the “pressure principle”; a concept that would, I dare say, easily enough be understood and, more importantly, quite readily be capable of application by newspaper editors and their legal advisers to whom the law of contempt is not unfamiliar.  That example shows why rigidity may, in certain contexts, be unnecessary and undesirable, and exactitude difficult to achieve.  The application of the principle of legal certainty must, naturally, be sensible and practical; and the point is always a contextual one since one:

“… must be wary of using the doctrine of vagueness to prevent or impede state action in furtherance of valid social objectives by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself”.

per Gonthier J in Nova Scotia Pharmaceutical Society v R (1992) 74 CCC (3d) 289, 313.  (Emphasis added).

The subject at hand in this case lends itself to much greater precision than presently we find in the Public Order Ordinance; and the essential principles of legal certainty remain and, I would say, must be reinforced where an essential freedom is at stake and where the power of limitation is backed by sanction of the criminal law, for the requirement is a doctrine of fundamental fairness not only because fairness requires the citizen to know his rights and the limits upon them with certainty, but also – and perhaps especially - because the official who wields power must know the limits of his power.  This theme is constant:

“The two rationales of fair notice to the citizen and limitation of enforcement discretion have been adopted as the theoretical foundations of the doctrine of vagueness, here (Prostitution Reference, Committee for the Commonwealth of Canada) as well as in the United States (See Grayned v. City of Rockford, 408 U.S. 104 (1972) at pp. 108-9) and in Europe, as will be seen later.  These two rationales have been broadly linked with the corpus of principles of government known as the ‘rule of law’, which lies at the core of our political and constitutional tradition.

….

Lamer J. in the Prostitution Reference used the phrase ‘standardless sweep’, first coined by the United States Supreme Court in Smith v. Goguen, 415 U.S. 566 (1974) at p. 575, to describe the limitation of enforcement discretion rationale for the doctrine of vagueness.  It has become the prime concern in American constitutional law: Kolender, at pp. 357-8.  Indeed, today it has become paramount, given the considerable expansion in the discretionary powers of enforcement agencies that has followed the creation of the modern welfare state.

….

What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled.  Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements.  In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of this discretion.  The need to provide guidelines for the exercise of discretion was at the centre of the E.C.H.R. reasons in Malone, supra, at pp. 32-3, and the Leander case, judgment of March 26, 1987, Series A, No. 116, at p. 23.

Finally, I also wish to point out that the standard I have outlined applies to all enactments, irrespective of whether they are civil, criminal, administrative or other.  The citizen is entitled to have the state abide by constitutional standards of precision whenever it enacts legal dispositions.  In the criminal field, it may be thought that the terms of the legal debate should be outlined with special care by the state.”

Nova Scotia Pharmaceutical Society, pages 306, 308 and 313.  (Emphasis added).

And, to the same effect:

“The doctrine of vagueness finds its sources in the rule of law: see Gary T. Trotter, ‘LeBeau: Toward a Canadian Vagueness Doctrine’ (1988), 62 C.R. (3d) 183 at p.188; J.C. Jeffries, Jr., ‘Legality, Vagueness, and the Construction of Penal Statutes’ (1985), 71 Va. L. Rev. 189.  There appear to be two specific concerns underlying the vagueness concept: the citizen should be given proper notice of the law, and no room for arbitrary government action should exist under that law.  While these principles find their application mainly in penal matters, it offends neither common sense nor logic that a law which infringes a fundamental right or freedom guaranteed by the Charter must also be clear, understandable and not subject to arbitrary application.”

See Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4^th) 385, 435.  (Emphasis added).

And, further:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.  Vague laws offend several important values.  First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. … Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.  A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.  Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’  Uncertain meanings inevitably lead citizens to ‘”steer far wider of the unlawful zone” … than if the boundaries of the forbidden areas were clearly marked.’.”

See Grayned v City of Rockford, 408 U.S. 104, 108-109 (1972).  (Emphasis added).

81.  It was contended that it will be easy enough for the police officer entrusted with the powers conferred upon him by the Public Order Ordinance to know the limits of those powers, for he has only to look at the decision in Ng Kung Siu.  I do not share that view.  It seems to me that it would be difficult indeed to draw for the public official who is entrusted with the powers of limitation granted him or her by the Ordinance a practical guide to the application of the new and infinitely wide concept of ordre public and, in particular, to its limits.  It appears to me to be entirely fanciful to expect its application to be anything other than arbitrary when no such guide even exists.  And the wider the limits – and I suggest that they could hardly be wider than as drawn in sections 14 and 15 of the Ordinance – the greater the room for arbitrariness:

“Absolute precision in the law exists rarely, if at all.  The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work.  The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies.  On the other hand, where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no ‘limit prescribed by law’.”

See Attorney-General of Quebec v Irwin Toy Ltd. (1989) 58 DLR (4^th) 577, 617.  (Emphasis added).

82.  Much the same concern was apparent in Gurung Kesh Bahadur (2002) 5 HKCFAR 480 where the Chief Justice said, at page 493:

“The expression [“prescribed by law”] signifies that a law must be formulated with a sufficient degree of precision – just how much depends upon the nature and content of the subject matter in question – so that the individual is given some indication as to how he may regulate his conduct.  The requirement that restrictions must be “prescribed by law” could not be satisfied by the existence of general discretionary powers for immigration control vested in immigration officials under the Ordinance and by their undertaking administratively the exercise of considering the imposition of restrictions on such constitutional rights of non-permanent residents on a case by case basis at immigration counters at entry points.” 

83.  It is with these principles in mind that sections 14(1) and (5) and section 15(2) of the Ordinance fall to be examined.  In R v Chief Immigration Officer, Ex parte Bibi [1976] 1 WLR 979, Lord Denning in relation to the application of broad Convention principles in the context of immigration powers said this, at pages 984-985:

“I desire, however, to amend one of the statements I made in the Bhajan Singh case [1976] Q.B. 198, 207.  I said then that the immigration officers ought to bear in mind the principles stated in the Convention.  I think that that would be asking too much of the immigration Officers.  They cannot be expected to know or to apply the Convention.  They must go simply by the immigration rules laid down by the Secretary of State, and not by the Convention.”

84.  Whilst time has moved on, so that officials are now expected to be more conscious of and familiar with human rights concepts, I would nonetheless apply those sentiments to the terminology and width of sections 14(1) and (5) and section 15(2) of the Ordinance; and point especially to the fact that there exist no rules, no delineation, no guidance, whether within the Ordinance or promulgated under it or issued administratively, for the assistance of the inspector – for that is the level down to which these powers are delegated (see section 52(a) of the Ordinance).

85.  It was said in argument that the policeman faced with an application for a procession, or indeed anyone advising the policeman, can go to the cases and commentaries.  That is to suggest a novel form of recourse for a police officer.  Nonetheless, let us see what the cases, let alone the voluminous commentaries, say.

Ordre public

86.  Ordre public was the subject of analysis in Ng Kung Siu (1999) 2 HKCFAR 442, the opening sentence of which analysis, at page 457F, is of great importance to this case:

“It is important to recognise that the concept of public order (ordre public) is not limited to public order in terms of law and order.”

87.  I say that it is of great importance because the Ordinance is about public order.  That is its title and that is its subject matter.  The passage is also important because it illustrates at once that the parameters for limitation of the fundamental right have, by the Ordinance, been widened.  To the significance of this I shall return when I address the question of necessity.

88.  The Chief Justice then referred, at page 457, to Secretary for Justice v Oriental Press Group Ltd and Others [1998] 2 HKLRD 123 and to the various passages therein, including the following, at page 161:

“Defining "ordre public" has been elusive, especially as the phrase has different meanings in private and public law, and its meaning differs depending on the context in which it is being used. … in the context of public law:

... ordre public includes the existence and the functioning of the state organization, which not only allows it to maintain peace and order in the country but ensures the common welfare by satisfying collective needs and protecting human rights (Kiss, "Permissible Limitations on Rights", in Henkin (ed.), "The International Bill of Rights", 1981, p.301).

The Chief Justice continued, at pages 458-460, as follows:

In the work quoted in the passage in the judgment set out above, the author said that the concept of public order (ordre public) "is not absolute or precise, and cannot be reduced to a rigid formula but must remain a function of time, place and circumstances" and concluded his discussion in these terms:

In sum: "public order" may be understood as a basis for restricting some specified rights and freedoms in the interest of the adequate functioning of the public institutions necessary to the collectivity when other conditions, discussed below, are met. Examples of what a society may deem appropriate for the ordre public have been indicated: prescription for peace and good order; safety; public health; esthetic and moral considerations; and economic order (consumer protection, etc.). It must be remembered, however, that in both civil law and common law systems, the use of this concept implies that courts are available and function correctly to monitor and resolve its tensions with a clear knowledge of the basic needs of the social organization and a sense of its civilized values.  (Kiss at 302).

The Siracusa Principles on the limitation and derogation provisions in the ICCPR, agreed to in 1984 by a group of experts, contained the following statement on "public order (ordre public)":

22.  The expression "public order (ordre public)" as used in the Covenant may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded. Respect for human rights is part of public order (ordre public).

23.  Public order (ordre public) shall be interpreted in the context of the purpose of the particular human right which is limited on this ground.

24.  State organs or agents responsible for the maintenance of public order (ordre public) shall be subject to controls in the exercise of their power through the parliament, courts, or other competent independent bodies.

….

In 1986, in Advisory Opinion No. OC - 6/86, on the word "laws" in Article 30 of the American Convention on Human Rights, the Inter-American Court of Human Rights expressed the view:

The requirement that the laws be enacted for reasons of general interest means they must have been adopted for the "general welfare" (Art. 32(2)), a concept that must be interpreted as an integral element of public order (ordre public) in democratic States, the main purpose of which is "the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress and attain happiness" (American Declaration of the Rights and Duties of Man, .... First Introductory Clause).  (para. 29).

….

The following points can be drawn from the materials referred to above. First, the concept is an imprecise and elusive one. Its boundaries cannot be precisely defined. Secondly, the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole. Examples include: prescription for peace and good order; safety; public health; aesthetic and moral considerations and economic order (consumer protection, etc.). Thirdly, the concept must remain a function of time, place and circumstances.”  (Emphasis added).

89.  I ask then, rhetorically, what it is that the police inspector will say to himself when faced with the question of the extent to which he is empowered to prohibit a procession in a particular case or to impose conditions.  “I may do so”, he will accurately say, “if I abide by the imprecise and elusive parameters set by these various passages which, in essence, tell me that I may do so where the common welfare so requires.”  And that is the answer he will give whether as a result of his own research, or with the benefit of legal advice.

90.  I can imagine few discretions so devoid of precision, so bereft of direction or guidance, so amenable to arbitrary decision.  I accept that absolute precision is unattainable and that undue restriction may well be inimical to a legitimate legislative objective; yet I do not by this judgment advocate a public order law of absolute certainty or one that carries no flexibility.  The point has been made in relation to the South African Bill of Rights that:

“We must not lose sight of the fact that rights enshrined in the Bill of Rights must be protected and may not be unjustifiably infringed.  It is for the Legislature to ensure that, when necessary, guidance is provided as to when limitation of rights will be justifiable.  It is therefore not ordinarily sufficient for the legislature merely to say that discretionary powers may be exercised in a manner that could limit rights should be read in a manner consistent with the constitution in the light of the constitutional obligations placed on such officials to respect the constitution.”

per O’Regan J in Dawood, Shalabi and Thomas v Minister of Home Affairs 2000 (3) SA 936, 969.

The provisions under attack in the Public Order Ordinance offend, in their effect, in much the same way, for they do little more than say that a police officer of appropriate rank may prohibit or impose conditions upon a procession or assembly in circumstances permitted by the articles of the ICCPR relating to assemblies and processions.  There is no attempt at any precision to cater for the ‘nature and content of the subject matter in question’ (see the passage from Gurung Kesh Bahadur at paragraph 18 above); and there is no guidance of any kind.  It is not my task to draft a provision that goes no further than is necessary, or which provides suitable safeguards for the proper enjoyment of the fundamental right.  That is an objective of that might be achieved in different ways, and we were taken to examples of legislation elsewhere illustrating safeguards and guidelines.  Yet the Public Order Ordinance reveals no safeguards.  The discretion is left entirely in the hands of the police.  The objective to preserve and promote the freedom of assembly is not stated as a consideration.  The discretion is not tailored in any way save by reference to the broadest of terms of the Covenant, and there is no guidance whatsoever as to the factors which should, even generally, prevail so as to undermine or affect the fundamental right.

91.  I note, in passing, the reservations expressed about the utility of recourse to legislation elsewhere.  It seems to me, with respect, an acceptable (and not unusual) recourse, if only as an exercise in illustrating readily achievable attempts, for similar subject matters, to limit the potential for undue intrusion upon a fundamental right.  I note, too, reference to the suggested broad terms of legislation elsewhere.  I would only respectfully say that there is in my opinion a significant difference in scope and common understanding between “serious public disorder” on the one hand, and “ordre public”, on the other; that the powers of prohibition in the UK Act are materially more circumscribed than under the Public Order Ordinance; that in Queensland, prohibition depends on a court order; and that one knows not whether the width of the Irish provision has been the subject of challenge.

92.  It is at the end of the day a question, I suggest, of subject matter and degree, of framing a legitimate objective with due regard to the right affected and to safeguarding the rule of law:

“What he [Dicey] meant by the Rule of Law, but did not formulate with sufficient explicitness, is that the legal system must base rights and powers on a multiplicity of formal detailed laws expressed with reasonable precision.  It can be accepted that the more such laws there are, and the more detailed and precise they are, the more would individuals be aware (in some cases with the help of legal advice) of theirrights and the surer will they be that those rights will be protected.  In this sense the Rule of Law postulates legality, and its opposite is the rule of discretion in which the rights of persons are determined by others exercising a lawful discretion but without reference to detailed legal rules, acting thus in a greater or less degree in reliance of their own discretion only, whereas in terms of the Rule of Law the citizen must be able to plan his life and know his rights according to formal detailed rules.  The latter principle which is applicable to all legal relationships is particularly true in respect of governmental power and recalls the Ciceronian phrase now fast becoming a cliché that we are all slaves of the law in order that we can be free.  It has been trenchantly expressed by Professor Hayek:

‘Stripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.’

The Rule of Law in this secondary sense thus postulates laws and not just a legal basis to law, and laws of a certain kind, namely general principles laid down beforehand in some detail and not just laws giving authority to do what is considered fit.”

The Rule of Law; Professor Molteno QC, Acta Juridica(University of Cape Town)1965-66, pages 100-101.

93.  Mr McCoy returned, time and again in the course of argument, to the fact that the Ordinance required the officer, if he banned a procession or if he attached conditions to one, to provide reasons for his decision.  That, with respect, is not a valid answer to the requirement of legal certainty, for it addresses a phase or stage too late in the analysis of constitutionality.  If the requirement that the limitation itself be prescribed by law is not met because the boundaries of a discretion are too ill-defined, then the provision itself is bad.

94.  Then reliance has been placed on the comment in Ng Kung Siu that public order (ordre public) is a “function of time, place and circumstances”, as if that justifies the conferment of an almost limitless discretion.  That, in my opinion, is to misunderstand the intent of that comment.  The intent of the comment, of the reference to time place, and circumstances, is illustrated by the case of Ng Kung Siu itself, where the question was whether a very well-defined limitation, spelt out in section 7 of the National Flag and National Emblem Ordinance and section 7 of the Regional Flag and Regional Emblem Ordinance, was one that fell within the concept of ordre public.  The concept was not one to be addressed in some vacuum; and in the time, place and circumstances of Hong Kong, with its new constitutional order and recent history, the court held that the protection of the flags in question was a legitimate interest forming part of the concept of the general welfare of the collectivity as a whole.  In other words, whether a restriction (in the case of Ng Kung Siu, a very specific, limited and enacted restriction) can be justified as being consonant with the general welfare is a matter of time, place and circumstances; whereas what Mr McCoy appeared to be asserting was something much narrower in concept than that, namely, that since the time, place and circumstances of demonstrations will vary, the parameters of the statute-specific discretion must necessarily be at large.  That is not, to my mind, logical.  What is logical is that the parameters of a discretion must be such as to enable it to be exercised in accordance with the facts of each case, which facts will almost inevitably differ from event to event; but that those parameters must nonetheless be clearly defined and go no further than reasonably necessary in achieving a legitimate legislative objective.  Whether the clearly defined limiting power falls within the requirements of ‘ordre public’ depends upon what ‘ordre public’ dictates at a given stage of the history and circumstances of the society affected.  But the power itself must adequately be circumscribed.  “A law which confers a discretion is not in itself inconsistent with this requirement [of sufficient precision] provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference”: see Refah Partisi v Turkey (2003) 37 EHRR 1, 26.  It is not the fact of the discretion which in the instant case is objectionable.  It is its lack of any clarity, any definition, any guide as to its exercise, that leaves it readily open to an interpretation so wide as to erase the very protection that it purports to embrace.

95.  The point has been made that any wrongful exercise of power by the police will be checked by the courts, with the Appeal Board as the first avenue of recourse.  Yet I would respectfully suggest that that leaves in tact the nature and extent of the power conferred on the police; and if the power is unacceptably broad, recourse to the Appeal Board and to the courts is of no avail so long as the law under which the officer acts is held to be valid.  Thus:

“Even if an absolute and wide discretion is conferred by a recognised and functioning legislature which is superior in law to the ruler or government to whom the power was granted, the power conferred may be lawful, but would be contrary to the Rule of Law in its exact sense. If the legislature authorises such powers, the Rule of Law has in effect been abrogated by the legislature.”

The Rule of Law, Molteno, page 102. 

‘Rights and freedoms of others’

96.  We have heard little in argument about the width of the phrase “the rights and freedoms of others”.  “The rights and freedoms of others” is not a term restricted to the rights and freedoms enumerated in the Covenant.  Nor, I suggest, is it, in our present context, restricted to the rights and freedoms specifically enumerated in the Basic Law, for article 39(2) provides that “the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law”, a reference to rights and freedoms at large.  So:

“The European cases show that the term ‘rights and freedoms of others’ has not been construed so strictly as to include only rights enumerated in the Convention.  The European bodies, however, have not given the states free rein in determining which rights and freedoms to prefer.  The Court and Commission have always claimed the final word.  Connelly note that the tendency of the European bodies to refer to national laws and practice for guidance is a desirable one.  Because the term ‘rights and freedoms of others’ is vague and open-ended, a liberal interpretation of the term could erase the protection of the Convention..

…

A state justifying a restriction, or a reviewing body affirming one, should be required to define specifically which ‘rights of others’ are being protected.  The danger exists that the clause can be used together with others, such as ‘national security’ to justify a restriction, and if the particular rights of others are not specified, the clause risks taking on a broader and more vague definition and becomes subject to abuse.”

See “Working Paper for the Committee of Experts on Limitation Provisions” Human Rights Quarterly, Vol. 7 p. 35, 81 and 84.  (Emphasis added).

97.  This Ordinance gives an inspector of police entirely free rein in determining which rights and freedoms to prefer.  The absence of any guide as to the particular concerns or rights to which limitations in the context of processions would normally be directed, such as safety, passage, incitement to violence or hatred, preservation of property, excessive noise, itself renders the limitation provisions ripe for arbitrary application.  It is however not strictly necessary for me to adjudge this specific point of the width of ‘rights and freedoms of others’, nor the question whether ‘national security’ is sufficiently defined or proportionate, for in my opinion the use of the phrase “ordre public” as it is, and without further delineation of the grounds for interference, itself falls foul of the requirement that the limitations be prescribed by law.

‘Prescribed by Law’: Conclusion

98.  In my judgment and for the reasons given, the challenge that has been mounted upon the powers given by the Ordinance to the Commissioner to impose conditions upon and effectively to prohibit the holding of assemblies, as contravening the constitutional requirement that they be ‘prescribed by law’, is a valid challenge; and is one that I would uphold.

Necessity

(1) The issue

99.  Article 21 of the ICCPR precludes the imposition of restrictions on the exercise of the right of peaceful assembly …  ‘other than those [restrictions] 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.’  The argument in this case, a point separate from the issue of legal certainty, was that it has not been shown that the impugned restrictions were necessary.

100.  As I have intimated at paragraph 75 above, restrictions on fundamental freedoms must be rigorously examined by the courts; and justified by the Government.  To show that the restriction is necessary for the protection of one or more of the listed interests, it is not enough to show that the imposed restriction is within a permitted aim.  What must be shown is that the restriction imposed is one that is, in the circumstances that prevail, necessary for the protection of one or more of those interests.  “‘Necessary’ should be given its ordinary meaning and … no assistance is to be gained by substituting for ‘necessary’ a phrase such as ‘pressing social need’” (Ng Kung Siu, page 460F-G).  The burden of showing that necessity is on the Government, and “[to] be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved” (Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 200).  Once that need is demonstrated, it must then be shown that ‘the means used to impair the right or freedom are no more than is necessary to accomplish the objective’ (R v A (No. 2) [2002] 1 AC 44, 65).  That must be shown convincingly (Barthold v Germany (1985) 7 EHRR 347, para 58); or compellingly (Committee for Commonwealth of Canada v Canada, (1991) 77 DLR (4^th) 385, 462). 

101.  We were taken at some length to the legislative history of the Public Order Ordinance and to the reasons given before the enactment of the 1997 Ordinance; and in particular to a debate in 2000 in which its provisions were the subject of explanation.  Questions of necessity and proportionality are ultimately ones for the courts (see R (Profile) v BBC [2004] 1 AC 185, 240), and it is established that in ascertaining policy objectives, and in addressing the question of proportionality, the court is entitled to look at such material (Wilson v First County Trust Ltd (No  2) [2003]3 WLR 568).

102.  In the course of submissions, some degree of emotive advocacy was employed as justification for the change of law in 1997.  It should go without saying that it is no part of the court’s role to immerse itself in emotive controversy, and I intend to adhere to the issues raised by reference only to principles that arise as a matter of constitutional and administrative law.  The reason for the repeal of the Public Order Ordinance as enacted in 1995 did not purport to be driven by any suggestion that that Ordinance was incompatible with the ICCPR, so the question at hand is not whether there was or was not justification for the repeal, and therefore for an ordinance to replace it, but simply whether the relevant sections of the new Ordinance are or are not consistent with the Basic Law in that Law’s application of the ICCPR.  There were some suggestions made, it seemed at one stage, by Mr McCoy, that the promoters of this legislation had in mind to make the Ordinance ICCPR-compliant.  That was self-evidently not the reason for the new enactment.  By repeating phrases from the ICCPR, it was no doubt the intention of the draftsman and of the Government that the new law should be consistent with the Covenant; yet that was not why the boundaries of the discretion invested in the Commissioner of police were widened, as widened they indeed were.

(2) Legislative history

103.  The 1967 Ordinance, enacted in the wake of the 1967 disturbances and the unsettled circumstances in which the territory then found himself, carried at its head virtually the same preamble as the 1997 Ordinance:  

“To consolidate and amend the law relating to the maintenance of public order, the control of organizations, meetings, places, vessels and aircraft, unlawful assemblies and rights and matters incidental thereto or connected therewith.”

The 1997 version is different only in that the word ‘processions’ is inserted, an insertion that was first made in 1995. 

104.  The ground upon which the Commissioner of Police was then (1967) empowered to control public gatherings was:

“… if it appears to him to be necessary or expedient in the interests of public order so to do” (section 6).

He was required to grant a licence for a public meeting or procession:

“ … if he is satisfied that the public meeting or public procession is not likely to prejudice the maintenance of public order or be used for any unlawful or immoral purpose”;

and he had the discretion to refuse a licence if the applicant had previously contravened the law or the Ordinance, or if the procession had been advertised in contravention of the requirements of the Ordinance (Section 7).  

105.  He was further empowered to cancel a licence or amend its conditions only if:

“… it appears to him to be necessary or expedient in the interests of public order or for preventing the carrying out of any unlawful or immoral purpose.” (Section 8).

106.  It is not necessary to decide for the purpose of the present case whether a licensing system, whether or not actually so called, is or is not constitutional.  All we need to know at this point is the clear and limited circumstances in which, even in troubled times, the powers to stop a procession were defined, still leaving an element of discretion to the Commissioner of Police to enable him to address the circumstances of each case.  That was at a time when the ICCPR and the dictates of human rights instruments were not part of the daily diet of the Hong Kong constitutional lawyer, or the draftsman.

107.  Changes were made in 1980 and again in 1995 by the details of which changes this already long judgment need not be burdened.  It suffices to say that in 1980 there was introduced the concept of an ‘unauthorized assembly’ and the grounds then, and in 1995, for prohibition referred to likely prejudice to ‘maintenance of public order’, to ‘use for an unlawful purpose’, and to ‘the interests of public safety’.

108.  By a decision of the Standing Committee of the National Peoples Congress adopted on 2 February 1997, the Public Order Ordinance of 1995 was declared to be in contravention of the Basic Law.  Why it was in contravention was not explained in that Decision, but it suffices for present purposes to say that it was not because the previous law was said to contravene the Covenant.  There is some indication in a debate of the Provisional Legislative Council on 14 June 1997 that repeal followed a determination that the 1995 Ordinance was not acceptable because it was not a law that was “basically unchanged” from that enforced in 1984, which was the date of the Joint Declaration which provided that the Hong Kong’s laws would remain basically unchanged.

109.  It is obvious that the circumstances in which assemblies may be curtailed, have, by reason of the 1997 Ordinance been very considerably widened by comparison to any of the previous Ordinances.  There can be no argument but that ‘ordre public’ and ‘in the interests of the rights and freedoms of others’ are in conception, and in scope for application, considerably wider than ‘public order’, ‘public safety’ and ‘unlawful purpose’.

(3) The Government’s case

110.  The Ordinance itself gives no hint of the factors which demand such wide powers, powers covering all conceivable circumstances and conditions. So we need to turn to the material to which our attention has been drawn.

111.  In April 1997, the Chief Executive’s Office issued a Consultation Document, entitled “Civil Liberties and Social Order”.  Paragraph 3.3. of that Document stated that although Hong Kong took great pride in the exercise of freedoms by the community:

“3.3    Nonetheless, the fact remains that the public were concerned when protesters intruded into a foreign consulate against established international protocol; when demonstrators blocked the traffic in the heart of the business centre to voice their grievances; and when petitioners besiege commercial premises disrupting the work of the offices there etc.  Incidents such as these beg the question as to whether we should not, at the same time as the discussion on individual rights and freedoms gets underway, re-focus the community on the ‘restrictions’ which the ICCPR places on the rights under Articles 21 and 22.

Social stability

3.4    Hong Kong has enjoyed remarkable social stability, which is fundamental to the economic success of the territory over the years.  Stability is indeed the bedrock of prosperity.  Having had both for a very long time, it is easy to forget that being a small and open economy, Hong Kong is extremely vulnerable to external forces.  As a community, we must ensure that there are sufficient safeguards in our system to maintain law and order at all times, and to react to unforeseen circumstances swiftly and effectively.

3.5    The rights and freedoms espoused in the ICCPR are to be respected, but they are not absolute.  They have to be balanced against a host of considerations, such as national security, public safety and public order.  Furthermore, one must not trample on other people’s rights and freedoms in exercising one’s rights and freedoms.

The SARG’S commitment

3.6    As Hong Kong moves away from British rule to the high degree of autonomy promised in the Basic Law, it is time to reflect on how we want the Hong Kong society to develop.  The HKSAR Government is committed to the continued protection of human rights and personal freedoms as provided for in the Basic Law and in the international covenants which are applicable to Hong Kong.  We are also determined to uphold the rule of law, and maintain the institutions which underline the success of Hong Kong over the years.

3.7    However, we must also strike a balance between civil liberties and social stability, personal rights and social obligations, individual interests and common good.”

Then:

“5.4    There is a need to strike a balance between personal freedoms and social stability.  We must ensure, on the one hand, that people of Hong Kong are not deterred from organising or participating in public processions because of elaborate administrative controls and requirements.  On the other hand, the Commissioner of Police must be given sufficient time and information to assess thoroughly the implications of any event from the point of view of national security, public safety, pubic order, the protection of public health or morals, or the protection of the rights and freedoms of others.”

Then the proposals which run along the lines of the present Ordinance were summarized.

112.  I pause to make the following comments:

(1)    that the ICCPR does not “place restrictions on the rights recognised by articles 21 and 22” as is asserted by paragraph 3.3 of that document.  Rather, the ICCPR states in the most general of terms the widest extent to which the rights may be restricted; and

(2)    that there is no suggestion in the Document that the previous ordinances were in breach of the Covenant.

113.  The position of the Regional Government–in–waiting is to be identified in the speech of the Secretary for Policy Co-ordination to the Provisional Legislative Council on 10 May 1997, in the Official Record at page 75.  In that speech, the basic principles of the proposal are stated to be:

“1.    The amendments must be absolutely consistent with the Basic Law and the International Covenant on Civil and Political Rights (ICCPR) as they are applied to Hong Kong;

2.    A proper balance must be sought between civil liberties and social order.  On the other hand, we have to safeguard the individual rights and freedom of the public, while on the other, we have to ensure that when the public exercise their rights and freedom, they will not affect other people and social stability; and

3.    We must prevent foreign political forces from making use of Hong Kong to carry out political activities which are not in the interests of China and Hong Kong.”

114.  There then follows a discussion of the definitions of “national security”, “political organizations”, and “foreign connection”, the latter two in relation to proposed amendments to the Societies Ordinance.  The speech is notable for its absence of any reference to the reach of the “rights and freedoms of others”; and for the absence of any attempt at making the limitations as narrow as may be.  Subsequent debates of the Provisional Legislature provide no further illumination or purported justification for the breadth of the powers of prohibition.

115.  The only other official statements to which one has recourse for statements of justification are those of the Secretary for Security and the Secretary for Justice in a Legislative Council debate on 20 December 2000, reported in Hansard at pages 2154 and 2171 respectively.  The assertion is there made by the Secretary for Security that the new arrangements “have generally struck a proper balance in the broader interests of the community” (page 2156); that “history tells us that a single spark can start a prairie fire” (page 2157); a denial that the system was a licensing system in disguise; and that the Ordinance “… clearly states that such powers [of the Commissioner of Police] must not be exercised wantonly and the police must comply with the restrictions imposed by law” (pages 2159-60).  One pauses to note in this speech, as elsewhere in the material we see, an apparent assumption that the repetition in the legislation of the words of article 21 as to the extent of limitation of the right was all that was needed, and an absence of specificity in respect of, or justification, for the breadth of the powers conferred.

116.  The Secretary for Justice, at page 2173, recognised the principle of proportionality and “the principle of the margin of appreciation”, and then we find this:

“The requirement to notify the police of certain public meetings and processions has two principal purposes: to enable the police to take steps to minimize traffic, public safety, and public order problems that might arise; and to enable the police to decide whether there is a need to impose conditions in respect of the assembly or to prohibit it.” (page 2174).

And then again this, at page 2175:

“These grounds of objection reflect the permissible restrictions on the right of peaceful assembly set out in Article 21 of the ICCPR.  Moreover, the Ordinance expressly provides that the key expressions ‘public safety’, ‘public order’ and ‘the protection of rights and freedoms of others’ are to be interpreted in the same way as under the ICCPR as applied to Hong Kong.  In deciding whether to object to a public procession, the Commissioner must therefore conform to international human rights standards, by which his decision will be judged if challenged.”

117.  I had until recently thought that there was considerable significance in the fact that the Secretary for Justice had told the legislature that one of the purposes intended was for minimizing ‘public order’ problems, in that if that were the legislative objective (and the same term is used in the other Government speeches to which we were referred) then the use of the words ‘public order (ordre public)’ in the legislation self-evidently went further than was required to achieve the stated objective.  But I now note that the speeches were delivered in Cantonese, and we were only provided with the English translations; and that the words used by the Secretary were in fact the same in Cantonese as the words used in the Ordinance which my Lord, Yeung JA has identified in his judgment as carrying the same meaning as ‘ public order (ordre public)’.

(4) Analysis

118.  One is bound recognize that the concerns attendant upon major political changes in the history of any territory may very well require particular attention and also changes in legislation; and policy considerations are pre-eminently for the policy makers, not for the courts.  Yet the law is for the courts, and the issue of law which this court has to decide is whether it has been compellingly demonstrated by the Respondent in this appeal that the impairments on the freedom of assembly, as they appear in the new Ordinance were or are, in their extent, necessary for the protection of the various interests prayed in aid.  The aim of the restrictions was said to be to protect those interests.  So far so good; but to say that the overall aim is itself a permitted aim is not enough.  Article 21 requires that such restrictions as are imposed (‘those imposed’) must be shown to be necessary in the interests of national security, public safety, public order (ordre public) and so on.

119.  In 1967, for example, restrictions were imposed on meetings and the parameters of those restrictions were specified: where apparently necessary to protect public order.  Clearly it would then have been easy to demonstrate that it was necessary to curtail freedom of assembly to that extent and for that purpose.  Whether the means used then went beyond what was required would have been the next question.

120.  If the question were asked: what is the extent of the restrictions imposed in 1997 on the freedom of assembly, the answer would have to be: the widest possible to accord with the words used in article 21; much wider than ever before.  The next question would then have to be: well, what is the demonstrable need for, or the demonstrable problem which requires, curtailment of the freedom on the most extensive grounds possible?  That it is the question that, in my opinion, had to be answered in this case; for it seems to me that it would only be in wholly unusual and special circumstances or for unique problems that could render necessary the power to prohibit assemblies on the most extensive grounds possible.

121.  It also seems to me that in order to show that a stated objective justified a restriction, and that the extent of the restriction was proportionate to that objective, the objective must be delineated or explained with sufficient clarity to enable those assertions properly to be tested; and I confess that I have some difficulty in culling a clear objective from these debates and other explanations.  Be that as it may,in my judgment the burden of showing the need for the very extensive powers of curtailment has not been discharged; and for this further reason, I would allow this appeal.  Whilst I can see justification put forward in the papers for a ‘national security’ ground, the respondent has not demonstrated the need to import the width of restrictions in so far as they go beyond public order, public safety, and national security and in so far as they permit curtailment of the freedom of assembly in the interests of the rights of others, regardless of the nature of the right and without reference to the extent of any infringement of such a right.

Ramifications

122.  I find disturbing the notion that the terms of limitation in Article 21 imported without more into a subject-specific item of legislation will suffice, for that notion, if correct, carried to its logical conclusion, provides a recipe for wide-scale encroachment upon fundamental freedoms.  Whilst I accept, indeed endorse, the contention that some subject matters will allow of broader discretions and terms than others, I nonetheless use an example of another ordinance to illustrate my point.  The example I use is the Film Censorship Ordinance, Cap. 392.  The freedom which it most obviously affects is the freedom of expression which we see in Article 19 of the Covenant, which is there said to be one that may be restricted, where necessary:

“(a)    For respect of the rights or reputations of others;

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

123.  Section 10(4) of the Film Censorship Ordinance enables the censor to refuse to approve a film for exhibition “because of a matter referred to in subsection (2)”.  Subsection (2) of section 10 provides as follows:

“(2)    The censor shall as soon as practicable view the film and consider the following matters for the purpose of making his decision under subsection (4)-

(a)    whether the film portrays, depicts or treats cruelty, torture, violence, crime, horror, disability, sexuality or indecent or offensive language or behaviour; and

(b)    whether the film denigrates or insults any particular class of the public by reference to the colour, race, religious beliefs or ethnic or national origins or the sex of the members of that class.”

And subsection (3) provides:

“(3)    The censor shall, in viewing the film and considering the matters referred to in subsection (2), also take into account the following matters-

(a)    the effect of the film as a whole and its likely effect on the persons likely to view the film;

(b)    the artistic, educational, literary or scientific merit of the film and its importance or value for cultural or social reasons; and

(c)    in relation to the intended exhibition of the film, the circumstances of such exhibition.”

124.  I hardly think that it would do for the power to be drawn in such a way so as to enable the censor to prohibit exhibition merely where he “reasonably considers prohibition to be necessary for the protection of national security or of public order (ordre public) or of public health or morals”.  One has only to compare the provision now in place with the broader provision that simply imports article 19 to see why that is so.  Section 10 is an instance of what is required to make a limitation subject–specific, to mould the boundaries of a discretion to the legitimate (and clear) objective of a statute, and to render the exercise of that discretion a practical and clear matter for those who are affected by it and for those who possess it.  The example I have injected into the Film Censorship Ordinance may be thought to be an example ad absurdum.  Yet it is sought to uphold precisely the same manner and breadth of limitation in respect of the Public Order Ordinance upon that which is essentially the same freedom.

125.  I commented at an early stage of this judgment that there was but one instance found by counsel where the terms of, or similar to that of, an international instrument has been incorporated in unqualified fashion as the scope of limitation in a subject-specific statute.  The instance is seen in ANC v Chairman, Council of State of Ciskei (1992) 4 SA 434; and it will be seen that the court in that case viewed the section as far too wide to survive constitutional scrutiny.

Fall-back position

126.  Mr McCoy was driven to argue that if he failed on the primary points of legal certainty and necessity, he would invite the court to ‘read down’ the sections so that the term “ordre public” be deleted leaving only public order.  That was permissible, he said, because the Chinese version of the Ordinance did not include the phrase “ordre public” in parenthesis.

127.  I do not find this an attractive argument because, quite apart from remaining problems that may exist in relation to the requirements of legal certainty (for example, as to the rights and freedoms of others), it can never have been intended that ‘public order’ be read in the Chinese version in a way different from that in the English, as if divorced from the concept of ordre public.  My own expertise is not such that I can comment on problems of translation, but there was, I suspect, difficulty in encapsulating the concept of ordre public in a few Chinese characters; and since the objective of the exercise was clearly to copy the terms of article 21 of the Covenant, we can safely proceed on the basis that there is no disparity between the English and Chinese versions; the more so because

(1)    section 2 of the Ordinance enjoins those entrusted with the discretions conferred by the Ordinance to interpret them “in the same way as under the ICCPR as applied to Hong Kong”; and

(2)    the phrase “public order” on its own appears nowhere in the Covenant.  The closest that the Covenant comes to it is in the use of the single word “order” in article 18.

128.  I am in the event comforted in this approach by the expert and better informed analysis of this issue by my Lord, Yeung JA.

The Basic Law, and Sections 14 and 15 of the Ordinance

129.  For the reasons I have provided, it is my opinion that the need for the extent of the powers conferred on the police by this Ordinance to curtail assemblies and processions has not been demonstrated by the Respondent and, further, that the powers conferred are so wide and so drawn as to fail the test of legal certainty.  If the question were asked how widely the power to ban processions was drawn, the true answer would have to be: “As widely as was conceivable given the terms of the ICCPR”.  If the question were asked what guidance has been given to the Commissioner of Police, either in the legislation or elsewhere, to the interpretation and limits of his power, the truthful answer would have to be: “None whatsoever”.  If the further question were asked what attempt has been made at legal certainty so that those affected by the power, and those who are to wield it, understand the governing terms, the answer would have to be: “None at all”.

130.  I am satisfied that sections 14(1), 14(5) and 15(2) and, in so far as may be relevant to this case, section 6 of the Public Order Ordinance are inconsistent with articles 27 and 39 of the Basic Law and, in so far as may be necessary, I would make a declaration to that effect.

The consequences for section 13

131.  The charges against the appellants were (in the case of the first appellant) of holding and (in the case of the other two appellants) of assisting in the holding of “a public procession after the same had become an unauthorized assembly by virtue of section 17A(2) of the Public Order Ordinance, Cap. 245”.

132.  Section 17A(2) provides, in so far as is germane to this case:

“(2)    Where-

(a)    any public meeting or public procession takes place in contravention of section … 13;

(b)    …the … public procession … shall be an unauthorized assembly.”

133.  The factual basis upon which the appellants were convicted was that they had failed at the first hurdle, namely, the giving of notice.  That is an accepted fact.  The question therefore arises whether the issues about the validity of sections 14 and 15 are properly engaged in this appeal.  At one stage, Mr McCoy was minded to say that they were not.  The court therefore adjourned to enable counsel to prepare full argument specifically on that point.  Mr McCoy came to concede that the offence created by section 17A could not survive a finding that sections 14 and 15 were unconstitutional.  Whilst section 13(1)(a) was severable in the sense that the section on its own made sense were paragraphs (b) and (c) to be deleted, severance was not conceptually, as he put it, acceptable.  In my judgment, that concession and that approach is correct.

134.  As was said in the debate in the Legislative Council in December 2000, the provisions of the Public Order Ordinance for the holding of processions “should be taken as an integrated whole” (page 2156); and (at page 2174) that:

“The requirement to notify the police of certain public meetings and processions has two principal purposes: to enable the police to take steps to minimize traffic, public safety, and public order problems that might arise; and to enable the police to decide whether there is a need to impose conditions in respect of the assembly or to prohibit it.”

135.  The offence is that of holding a procession that is unauthorized, not an offence of holding a procession without giving notice.  Authorization is the key to the scheme.  Notice is given, not for its own sake, but in order to enable the Commissioner of Police to decide one way or the other how to exercise a power.  If the power thus conferred is not constitutional, the rest falls away.  What would remain if deletions were made to section 13, leaving only the requirement to give notice is:

(1)    an offence of holding an unauthorized assembly when the Ordinance no longer carried such a concept; and

(2)    a penalty of up to five years’ imprisonment for failing to notify the holding of a procession when the Ordinance envisaged, by reason of the necessary deletions, no power to prohibit a procession.

Conclusion

136.  It follows therefore, in my judgment, that once sections 14 and 15 in their material parts go, so does the offence of holding an unauthorized assembly where the absence of authorization results from a failure to comply with the requirement of section 13(1)(a) of the Ordinance.

137.  That being so, the convictions cannot, in my opinion, stand.  I would allow the appeals and quash the convictions in the case of each appellant.

Hon Yeung JA :

138.  I have the advantage of reading the draft judgment of Ma CJHC. I agree with his judgment. I only wish to add the following.

139.  The Public Order Ordinance (the POO), before its amendments in 1997, empowered the Commissioner of Police (the Commissioner) to prohibit the holding of any public procession or impose conditions in respect of any public procession, if he reasonably considered it necessary in the interests of public safety or public order.

140.  The Chinese text of the relevant sections referred to “public safety” as “gongzhong an’quan” (公眾安全) and “public order” as “gong’an” (公安).

141.  The POO, with its amendments in 1997, allows the Commissioner to control and direct conduct of all public gatherings and procession if he reasonably considers it necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others.

142.  The Chinese text of “public safety” after the amendments becomes “gonggong an’quan” (公共安全) instead of “gongzhong an’ quan” (公眾安全) and “public order (ordre public)” becomes “gonggong zhixu” (公共秩序).  The reference to “public order”- “gong’an” (公安) is obliterated all together.

143.  The Chinese text of the amended POO does not draw any distinction between “public order” and “ordre public” as they are referred collectively as “gonggong zhixu” (公共秩序).

144.  Mr McCoy SC, as part of his contention that the provisions in the amended ordinance do not constitute unnecessary restrictions in a democratic society, suggests that there are discrepancies between the authentic texts of the POO in the two official languages.

145.  He suggests that in so far as “ordre public”denotes aconcept wider than the common law notion of law and order (public order), such distinction is not borne out by the use of the single Chinese term-“gonggong zhixu” (公共秩序) which appears to refer to “public order” only.

146.  In the light of such discrepancies, Mr McCoy argues, as his fall-back position, that the term “public order (ordre public)” should be “read down” to mean just “public order”, in which event, there would be no extension of the scope of “public order” despite the use of the term “public order (ordre public)”.

147.  He seeks reliance on the case of R v Tam Yuk Ha [1996] 3 HKC 606.

148.  Mr McCoy’s reasoning is premised on his incorrect assumption that “public order” and “ordre public” as used in the POO are to be read separately as two words, each with a distinct meaning and that “gonggong zhixu” (公共秩序) refers just to “public order”. Only with this incorrect assumption would it appear that there is any discrepancy in the two authentic texts of the relevant provisions in the POO.

149.  The term used in the amended POO is not “public order” and/or “ordre public”, but “public order (ordre public)” and it denotes one concept only, however wide the scope of such concept may be.

150.  The following passage from the judgment of Li CJ in HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442 at p. 457 perhaps demonstrates the point aptly:

“It is important to recognize that the concept of public order (ordre public) is not limited to public order in terms of law and order. This is well recognized by text writers and has been accepted in decisions in Hong Kong. See Tam Hing Yee v Wu Tai Wai [1992] 1 HKLR 185 at p.190 and Secretary for Justice v Oriental Press Group Ltd & Others [1998] 2 HKLRD 123 at p. 161 (CJHC and Keith J at first instance) (also reported at [1998] 2 HKC 627) and on appeal to the Court of Appeal Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293 at p.307I (also reported at [1999] 2 HKC 24). The expression used is not merely “public order” but “public order (ordre public)”. The inclusion of the words “ordre public” makes it clear that the relevant concept is wider than the common law notion of law and order. In this case, both the Magistrate and the Court of Appeal appear to have dealt with the concept of public order (ordre public) as limited to public order in terms of law and order. That approach is not correct.”

151.  I accept that the various Chinese terms that had been used or are being used in the POO may be imprecise, elusive, and possibly confusing.

152.  “gong’an” (公安) in its normal usage, is just an abbreviation for “gongzhong an’quan” (公眾安全) or “gonggong an’quan” (公共安全), yet in the Chinese text of the POO “public order” becomes “gong’an” (公安) and “public safety” becomes “gongzhong an’quan” (公眾安全) before the 1997 amendments and “gonggong an’quan” (公共安全) after the 1997 amendments.

153.  “zhixu” (秩序) means orderly and not chaotic. When it is prefixed by “gonggong” (公共) (public) to become “gonggong zhixu” (公共秩序), its precise meaning may not be easy to comprehend fully although reasonable people should have no difficulty in understanding what in substance the term embodies, in the context of Hong Kong.

154.  It is important, however, not to equate ““gonggong zhixu” (公共秩序) to “gong’an” (公安). The legislature created a new term “gonggong zhixu” (公共秩序)- “public order (ordre public)” in place of “gong’an” (公安) - “public order” in 1997; the obvious intention is distinguish one from the other.

155.  With the creation of any new term in legislation, there are bound to be associating difficulties, but such difficulties do not make the term “gonggong zhixu” (公共秩序) - “public order (ordre public)” too vague or too uncertain so as to be constitutionally objectionable. They do not create discrepancies between the Chinese and English texts of the term to justify the “reading down” of “public order (ordre public)” to mean simply “public order” as suggested by Mr McCoy.

156.  Indeed, the imprecise and elusive nature of the term “public order (ordre public)” itself was also recognized by Li CJ in Ng Kung Siu (supra) when he said the following at p. 459:

“The following points can be drawn from the materials referred to above. First, the concept is an imprecise and elusive one. Its boundaries cannot be precisely defined. Secondly, the concept includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole. Examples include: prescription for peach and good order; safety; public health; aesthetic and moral considerations and economic order (consumer protection, etc). Thirdly, the concept must remain a function of time, place and circumstances.”

157.  When “public order (ordre public)” is taken as one term and not separately as “public order” and/or “ordre public” and “gonggong zhixu” (公共秩序) as meaning more than just “public order”; there is, in my view, no discrepancies between the authentic texts in the two official languages as suggested by Mr McCoy.

158.  Even if there were the discrepancies, I do not accept Mr McCoy’s suggestion that the term “public order (ordre public)” should be “read down” so that the reference to (ordre public) could be ignored.

159.  Section 10B(3) of the Interpretation and General Clauses Ordinance, Cap. 1 provides:

“Where a comparison of the authentic texts of an Ordinance discloses a difference of meaning which the rules of statutory interpretation ordinarily applicable do not resolve, the meaning which best reconciles the texts, having regard to the object and purposes of the Ordinance, shall be adopted.”

160.  The court is not entitled to “read down” an authentic text in either of the official languages, but is obliged to reconcile the authentic texts in both official languages, having regard to the object and purposes of the Ordinance (Emphasis added). In so far as Tam Yuk Ha (supra) adopted a different approach, such approach had been held by the Court of Appeal to be incorrect (see HKSAR v Tam Yuk Ha [1997] 2 HKC 531). 

161.  The 1997 amendments to the POO have introduced in a completely new term of “public order (ordre public)”- “gonggong zhixu” (公共秩序) in place of “public order”- “gong’an” (公安).

162.  Article 39 of the Basic Law (the BL) stipulates that “the provisions of the International Covenant on Civil and Political Rights (the ICCPR), the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region”.

163.  Article 21 of the ICCPR recognizes the right of peaceful assembly and provides that “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”. The terms “public safety”, “public order (ordre public)”, “the protection of public heath” and “the protection of rights and freedoms of others” in the POO are to be construed in the same way as the ICCPR (see s 2(2) of the POO). In the Chinese text of the POO, there is, of course, the express reference to “gonggong zhixu” (公共秩序). 

164.  The 1997 amendments to the POO were made clearly to ensure that the domestic legislation of the Hong Kong Special Administrative Region (the HKSAR) complies with provisions of the ICCPR and hence the reproduction of the terms - “national security or public safety”, “public order (ordre public)”, …”protection of the rights and freedoms of others”.

165.  Mr McCoy’s suggestion that we should “read down” public order (ordre public) to mean simply public order is not the proper way to reconcile the differences (even if such differences do exist) in the two authentic texts of the relevant provisions in the POO.

166.  If there is indeed any difference between “public order (ordre public)” and “gonggong zhixu” (公共秩序) as suggested by Mr McCoy, the only proper way to reconcile the discrepancies, having regard to the object and purposes of the POO, is to construe “gonggong zhixu” (公共秩序) to have the same meaning as “public order (ordre public)” as articulated by Li CJ in Ng Kung Siu (supra).

167.  Mr Blanchflower SC argues that there is no pressing social need for the introduction of the “notification system” under the POO and in so far as sections 13, 13A, 14, and 15 constitute restrictions to the freedom guaranteed under Article 27 of the BL and Article 17 of the Hong Bill of Rights Ordinance Cap 383, such restrictions are unconstitutional.

168.  Mr Blanchflower suggests that the 1997 amendments expand the scope of the restrictions when there is no need for such extension. On this issue, it is perhaps helpful to recite Li CJ’s comments in Ng Kung Siu (supra) at p 460, on the meaning of “necessary” in the context of the POO:

“The Privy Council and the Hong Kong courts have held that the word ‘necessary’ in this test should be given its ordinary meaning and that no assistance is to be gained by substituting for ‘necessary’ a phrase such as ‘pressing social need’…This approach is sound.”

169.  Article 27 of the BL is one of the articles under Chapter III, with the title: “Fundamental Rights and Duties of the Residents”. It must be recognized that for every right, there is a corresponding duty.

170.  It must also be remembered that the rights guaranteed under the BL are not exclusive to a few or a small group of Hong Kong residents, but to all Hong Kong residents.

171.  Article 4 of the BL obliges the Government of the HKSAR to safeguard the rights and freedoms of the residents and other persons of the HKSAR in accordance with law.

172.  The Government of the HKSAR is entitled to impose restrictions on the exercise of freedom of assembly if the restrictions are necessary in a democratic society in the interests of national security or public safety, public order (ordre public).

173.  The Government of the HKSAR is obliged to ensure that the exercise of the rights by some residents will not adversely affect the rights and freedoms of other residents and other persons in the HKSAR.

174.  The right of public assembly is of course a fundamental right, being one aspect of freedom of expression. However rights and freedoms cannot be absolute or else they are no different from anarchy and can lead to mayhem and lawlessness.

175.  Mr Blanchflower accepts this, but seeks to argue that the restrictions imposed under sections 13, 13A, 14, and 15 of the POO are unnecessary.

176.  In particular, he suggests that in so far as the 1997 amendments to the POO enlarge the scope (from public safety or public order to national security or public safety, public order (ordre public) or the protection of rights and freedoms of others) upon which the Commissioner can exercise control and direct conduct of all public gatherings and procession, such enlargement has not been shown to be necessary.

177.  The preamble to the BL refers to the signing of the Joint Declaration …“affirming that the Government of the People’s Republic of China will resume the exercise of sovereignty over Hong Kong with the effect from 1 July 1997…” It also refers to the establishment of the HKSAR as “Upholding national unity and territorial integrity…”

178.  Apart from Article 4 (safeguarding the rights and freedoms of the residents of the HKSAR), Article 39 (implementing the provisions of the ICCPR), other Articles in the BL also obliges the Government of the HKSAR to enact necessary laws to comply with the provisions of the BL.

179.  Thus, the 1997 amendments to the POO, including the restrictions on the exercise of the right of peaceful assembly, were brought about by the implementation of the BL on the resumption of sovereignty over Hong Kong by the Government of the People’s Republic of China with effect from 1 July 1997 and could not be said to be unnecessary. As Li CJ commented in Ng Kung Shu (supra) also at p. 460:

“As to time, place and circumstances with which we are concerned, HongKong has a new constitutional order. On 1 July 1997, the People’s Republic of China resumed the exercise of sovereignty over Hong Kong being aninalienable part of the People’s Republic of China and established the HongKong Special Administrative Region under the principle of ‘one country, two systems’. The resumption of the exercise of sovereignty is recited in the preamble of the Basic Law, as ‘fulfilling the long-cherished common aspiration of the Chinese people for the recovery of Hong Kong’.”

180.  Mr Blanchflower also complains that “gonggong zhixu”(公共秩序) “public order (ordre public)” had not been formulated precisely enough to meet the requirement of being “prescribed by law”. I do not agree.

181.  I have commented that reasonable people should have no difficulty in understanding what in substance the term (both in Chinese and in English) embodies. Despite its elusive nature, which is necessary as articulated by Ma CJHC in his judgment, the term is certainly sufficiently precise from a legal point of view.

182.  I am of the view that the restrictions imposed under the POO are necessary in a democratic society in the interest of national security or public safety, public order (ordre public), and for the protection of the rights and freedoms of others. The relevant provisions in the POO are not vague or uncertain and are not constitutionally objectionable.

183.  For the reasons given by Ma CJHC, I would also dismiss the appeals of the Appellants and uphold their convictions.

Hon Ma CJHC :

184.  It follows from the above that, by a majority decision, the appeals are dismissed and the convictions upheld.