HKSAR v. CHOW HANG TUNG (鄒幸彤)

Press Summary (English)

Press Summary (Chinese)

FACC No 9 of 2023

[2024] HKCFA 2

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO 9 OF 2023 (CRIMINAL)

(ON APPEAL FROM HCMA NO 51 OF 2022)

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J U D G M E N T

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Chief Justice Cheung:

1.  This appeal by the prosecution raises the question of whether a collateral challenge to the validity of a prohibition of the holding of a public meeting can be mounted in a prosecution for inciting others to take part in the prohibited meeting, contrary to section 17A(3)(a) of the Public Order Ordinance[1] and the common law.

The facts

2.  The facts giving rise to the prosecution below may be briefly stated. On 27 April 2021, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China,[2] of which the respondent, Miss Chow Hang Tung, was the Vice Chairman at the time, gave a written notification, as required by sections 7(1)(a) and 8 of the Ordinance, to the Commissioner of Police of its intention to hold a meeting at Victoria Park between 8 pm and midnight on 4 June 2021 to commemorate the 32^nd anniversary of the “4 June incident”.

3.  On 25 May 2021, the police had a liaison meeting with the Alliance’s representative to discuss arrangements for the proposed meeting. After the meeting, the Alliance submitted to the police a revised notification dated 25 May 2021 in which the estimated number of participants was revised downwards from 100,000 to 150,000 to between 40,000 and 60,000, and the time of the proposed meeting was shortened to between 8 pm and 10 pm.

4.  On 27 May 2021, the Commissioner of Police issued a notice of prohibition to the Alliance pursuant to section 9 of the Ordinance, prohibiting the holding of the meeting on 4 June 2021. The notice stated that in view of the need of maintaining public safety, public order and protecting the rights and freedoms of others, and after taking into account local and global Covid pandemic situations at the time, the Commissioner had decided to prohibit the intended meeting.

5.  Pursuant to section 16 of the Ordinance, the Alliance lodged an appeal against the prohibition with the Appeal Board constituted under section 44 of the Ordinance. On 29 May 2021, the Appeal Board confirmed the decision of the Commissioner and dismissed the appeal.

6.  On the same day, the government issued a press release informing the public of the Commissioner’s prohibition of the intended public meeting on 4 June 2021 and the Appeal Board’s dismissal of the Alliance’s appeal. It advised that the intended meeting, if held, would be an unauthorised assembly and no one should take part in it nor advertise or publicise it. Otherwise, he or she would be acting in contravention of the law.

7.  That notwithstanding, the respondent published posts on her personal Facebook page and Twitter account on 29 May 2021, as well as an article in a Chinese newspaper on 4 June 2021 criticising the prohibition and, so the courts below found, encouraging others to attend the prohibited meeting.

Before the magistrate

8.  The respondent was therefore charged[3] with an offence of “incitement to knowingly take part in an unauthorised assembly”, contrary to common law and section 17A(3)(a) of the Ordinance, and punishable under section 101I of the Criminal Procedure Ordinance.[4]

9.  At trial before the magistrate,[5] the respondent took a number of points by way of defence. Among others, she argued that the Commissioner’s prohibition of the intended meeting was “unlawful” as it was an unlawful and disproportionate interference with her fundamental rights to freedom of assembly, expression and demonstration.

10.  Agreeing with the prosecution, the magistrate rejected the defence on the grounds that it was not open to the respondent to challenge the validity and lawfulness of the prohibition in a criminal court but only by way of judicial review.[6]  The magistrate also rejected other defences raised by the respondent. She convicted the respondent accordingly and sentenced her to 15 months’ imprisonment.[7] 

Before the judge on appeal

11.  On appeal,[8] Barnes J agreed with the magistrate and rejected all but one grounds of appeal relied on by the respondent. The learned judge parted company with the magistrate on whether the respondent could challenge the legality of the prohibition in the criminal prosecution. Pointing out that whether such a challenge could be mounted turned on the proper interpretation of the Ordinance, the judge stressed that although a prohibition under section 9 of the Ordinance applies to all members of the public, not everyone may resort to the appeal mechanism under the Ordinance to challenge the prohibition :

“44. I agree that since a member of the public may be prosecuted for measures of a general character without any opportunity to appeal, the construction of a statute should allow the citizen to challenge the lawfulness of these measures in the criminal trial. The Prohibition Order in the present case is a measure of a general character rather than a measure against an individual member of the public for failing to comply with an enforcement notice. Although the respondent relied upon the appeal mechanism under the Public Order Ordinance and emphasised the finality of the Appeal Board's determination under the Ordinance, the mechanism can by no means provide to the general public (such as the appellant) any opportunity to appeal because only specified persons may appeal. For this reason, I accept the submission of Mr. Pang SC that upon proper construction, the Public Order Ordinance allows the appellant to challenge the legality of the Prohibition Order in the criminal trial.”[9]

12.  The judge further reasoned that :

“45. …If the Prohibition Order was not lawfully issued, the appellant then would not be breaking the law even if she had appealed to others to assemble in Victoria Park. Therefore, in my view, the legality of the Prohibition Order is an essential element of the offence, and the appellant may also challenge its legality in the criminal trial.”

13.  The judge then proceeded to examine the “operational proportionality” of the prohibition, that is, whether a complete ban of the intended meeting at Victoria Park was necessary given the prevailing circumstances at the time. She referred to the restriction on the rights to freedom of assembly, expression and demonstration by the prohibition and thus the applicability of the proportionality test,[10] but essentially zeroed in on the requirement of section 9(4)[11] of the Ordinance in deciding the question of “operational proportionality”.[12]  Largely on the basis that the Commissioner had not seriously considered whether the intended meeting could be allowed to be held by the imposition of suitable measures or conditions with a view to controlling or minimising the risk of Covid as required by section 9(4), the judge held that the prosecution had failed to establish the legality of the prohibition. The judge said :

“64. Taking all the above into consideration, it is my view that the evidence did not show that the police had discharged their positive duty under section 9(4) of the Public Order Ordinance by considering that apart from the ban, whether there were other feasible measures which would permit and facilitate the holding of the meeting. Both the Appeal Board and the trial magistrate accepted the pandemic consideration to be the reason for issuing the Prohibition Order, but they also did not take into account the feasibility of other measures or conditions. Therefore, the respondent has failed to establish the legality of the Prohibition Order, and I find that the challenge by the appellant succeeds.”

14.  The judge accordingly allowed the respondent’s appeal and quashed her conviction and sentence, notwithstanding her rejection of the respondent’s other grounds of appeal.

Two certified points of law

15.  Recognising that her decision raised important questions of law, by a decision dated 19 January 2023,[13] the judge certified two points of law of great and general importance pursuant to section 33 of the Hong Kong Court of Final Appeal Ordinance :[14]

“(1) In a prosecution for an offence of incitement to knowingly take part in an unauthorized assembly contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap. 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap. 221, is it open to a defendant to raise by way of defence the legality of the police’s prohibition of the subject public meeting which was subsequently upheld by the Appeal Board on Public Meetings and Processions (‘the Appeal Board’)?

(2) In the event that the answer to the above question is in the affirmative, what is the correct approach that the court should take in considering a defendant's challenge to the legality of the police's prohibition and of the subsequent determination by the Appeal Board?”

16.  On 8 June 2023, the Appeal Committee[15] granted leave to the prosecution to appeal from the judge’s decision on the basis of the two certified points of law.[16] 

The arguments on appeal

17.  At this appeal, the appellant[17] essentially repeated its arguments below and contended that the legislature had already set up an elaborate appeal mechanism under the Ordinance to review the Commissioner’s prohibition of an intended public meeting. The decision of the Appeal Board is “final”,[18] and therefore is final for all purposes including that of a criminal prosecution for contravention of the prohibition, save for and subject to a successful challenge (if any) by way of judicial review in the High Court. To allow a collateral challenge to the validity of the Commissioner’s prohibition in a prosecution before a criminal court would lead to uncertainty and confusion, might result in inconsistent decisions, and would defeat the purpose of the Ordinance. The appellant also pointed out that there are differences in terms of the parties involved, the materials that may be considered, the onus of proof, and the expertise of the courts between a collateral challenge before a criminal court and a judicial review in the High Court. Allowing a collateral challenge before the criminal court would render the criminal trial unfocused, protracted and lengthy. The appellant submitted that all this could not have been the legislative intent of the Ordinance.

18.  The respondent basically supported the judge’s reasons. Counsel[19] pointed out that while the matter is always one of statutory construction, there is a strong presumption in favour of allowing a collateral challenge. Where an offence consists of disobeying a prohibition, the validity of the prohibition must be an essential premise for the commission of the offence. It would take very clear words to deprive a defendant of an opportunity to challenge the validity of the prohibition. This is especially so when an intending participant, like the respondent, does not have a right of appeal against the prohibition to the Appeal Board. Counsel also suggested that the respondent might not have the necessary standing to lodge an application for judicial review of the Appeal Board’s dismissal of the Alliance’s appeal against the prohibition. The criminal trial, counsel submitted, therefore represented the first and only opportunity for the respondent to bring into issue the validity of the prohibition. To deny her the opportunity to do so would be contrary to the rule of law.

19.  The parties also made submissions on the proper approach of a criminal court in deciding a collateral challenge to the validity of a prohibition, assuming that such a challenge was open to a defendant, as well as whether, on the facts of the present case, the prohibition was disproportionate or otherwise invalid.

General principles on collateral challenges in criminal proceedings

20.  I turn first to some general principles on collateral challenges, before focusing my attention on the Ordinance and its relevant provisions.

21.  The general principles on collateral challenges in criminal proceedings should not be controversial. I take it as reasonably settled that whether a collateral challenge may be mounted in a criminal court is a matter of statutory construction of the relevant legislation. The question is sometimes framed as whether it is the legislative intent to “allow” such a challenge to be made in a criminal prosecution. A more focused and indeed accurate way of putting it is whether on a proper construction, the validity of the administrative act in question (the prohibition in the present case) is an essential element of the offence or a statutory defence provided for under the offence-creating provision. If the answer is in the affirmative, the criminal court will necessarily have to deal with the issue when trying the prosecution. Indeed, strictly speaking, it is a misnomer to call the challenge a “collateral” challenge.[20]  If the answer is in the negative, the court is simply not seized of it. Analysed thus, the question is not so much whether the challenge is “allowed” by the legislature to be made as whether it is relevant to an issue before the criminal court. As Lord Hoffmann explained in R v Wicks :[21]

“… The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices. It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute.” (emphasis added)

22.  In Wicks, the issue was whether a collateral challenge could be mounted against an “enforcement notice”, the non-compliance of which led to the criminal prosecution. Lord Hoffmann explained :[22]

“In my view the question in this case is likewise one of construction. What is meant by ‘enforcement notice’ in section 179(1) of the Act of 1990? Does it mean a notice which is not liable to be quashed on any of the standard grounds in public law? Or does it mean a notice issued by the planning authority which complies with the formal requirements of the Act and has not actually been quashed on appeal or judicial review? The words ‘enforcement notice’ are in my view capable of either meaning. The correct one must be ascertained from the scheme of the Act and the public law background against which it was passed.”

23.  In the oft-cited House of Lords case of Boddington v British Transport Police,[23] Lord Irvine LC echoed :[24]

“However, in every case it will be necessary to examine the particular statutory context to determine whether a court hearing a criminal or civil case has jurisdiction to rule on a defence based upon arguments of invalidity of subordinate legislation or an administrative act under it. There are situations in which Parliament may legislate to preclude such challenges being made, in the interest, for example, of promoting certainty about the legitimacy of administrative acts on which the public may have to rely.”

24.  The same principles have been recognised and applied in quite a few local cases. In the well-known case of Secretary for Justice v Ocean Technology Ltd & others,[25] the Court of Appeal held that as a matter of statutory construction of sections 8 and 20 of the Telecommunications Ordinance[26] concerning the offence of establishing or maintaining a means of telecommunications without a licence, the legality of a decision to refuse a broadcasting licence or of an aspect of the licensing scheme at any given time is not a necessary element of the offence, and therefore is not an issue that a criminal court is concerned with in a prosecution of the offence.[27]  Stock JA[28] explained :

“94. A proper construction of ss 8 and 20 of the Ordinance is one that recognises that it must have been the legislature’s intention that the legality of a licensing decision or of an aspect of the licensing scheme at any given time was not a necessary ingredient of the offence. It would be as unrealistic and non-contextual to suggest that, as it would to contend that in enacting a provision that prohibited the driving of a motor vehicle without a licence, the legislature intended that it would be a defence to a charge of driving without a licence to show that, upon a driving test, the driving examiner ought not to have refused the examinee his full licence or to show that the criteria for granting driving licences were insufficiently precise to meet the test of prescription by law.

95.  It must follow that it was the legislature’s intention that if an applicant for a broadcasting licence wishes to attack the statutory licensing system, or a licensing decision, he must do so once he has made an application and has received a response which might be impugned at law. In a prosecution for an offence under ss 8 and 20 of the Ordinance, it is not open to a defendant to raise by way of defence the legality of a licensing decision or of the licensing scheme. Any other construction would, in my opinion, be contrary to the clear policy of the legislative scheme as a whole.”

See also HKSAR v The Incorporated Owners of No 10 Bonham Strand ＆ another;[29] HKSAR v Joy Express Ltd (No 2);[30] HKSAR v Sky Wide Development Ltd;[31] HKSAR v Cheung Kam Fai.[32]

25.  Although the question is one of statutory interpretation, as a matter of the rule of law, the courts lean against a construction which will deprive a defendant of the right to challenge the validity of the administrative act concerned, the breach of which resulted in the criminal prosecution. Lord Irvine put it strongly in Boddington :[33]

“However, in approaching the issue of statutory construction the courts proceed from a strong appreciation that ours is a country subject to the rule of law. This means that it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings. There is a strong presumption that Parliament will not legislate to prevent individuals from doing so : ‘It is a principle not by any means to be whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not to be excluded except by clear words.’ Pyx Granite Co. Ltd v. Ministry of Housing and Local Government [1960] A.C. 260, 286, per Viscount Simonds; cited by Lord Fraser of Tullybelton in Wandsworth London Borough Council v. Winder [1969] A.C. 461, 510.”

26.  One important consideration is whether the defendant in the prosecution has any other opportunities to challenge the administrative act in question, or whether the criminal prosecution represents the first and perhaps only opportunity for him to do so. In Boddington, where in issue was the vires of a smoking ban on trains imposed under subsidiary legislation, the House of Lords was very much influenced by the fact that the defendant had had no chance to challenge the ban until he was charged with disobeying it. Lord Irvine said :[34]

“By contrast, where subordinate legislation (e.g. statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it : so also where a general provision is brought into effect by an administrative act, as in this case. A smoker might have made his first journey on the line on the same train as Mr. Boddington; have found that there was no carriage free of no smoking signs and have chosen to exercise what he believed to be his right to smoke on the train. Such an individual would have had no sensible opportunity to challenge the validity of the posting of the no smoking signs throughout the train until he was charged, as Mr. Boddington was, under byelaw 20. In my judgment in such a case the strong presumption must be that Parliament did not intend to deprive the smoker of an opportunity to defend himself in the criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train. I can see nothing in section 67 of the Transport Act 1962 or the byelaws which could displace that presumption. …”

27.  The situation was contrasted with the earlier case of Wicks, which concerned an administrative act specifically directed at the defendant (the recipient of an enforcement notice), where there had been clear and ample opportunity provided by the scheme under the relevant legislation for the defendant to challenge the legality of the act, before his being charged with an offence.[35]

28.  That said, it has to be firmly borne in mind that ultimately, the issue is one of statutory construction, depending on the context and purpose of the legislation, the wording used and other relevant considerations. There is no rule of law that a statute must not prescribe the elements of an offence or any statutory defence applicable in such a way as to deprive a defendant of the opportunity to challenge the validity of an administrative act in the criminal prosecution itself, the non-compliance of which act founds the offence. As the authorities have pointed out, the legislature may have good reasons for so legislating in particular situations, and where that is the case, the court must construe the statutory provisions accordingly.

29.  Another relevant consideration discussed in the case law is whether the criminal courts, particularly the magistrates’ courts, are suitable forums for hearing challenges against the validity of administrative acts (or the vires of subsidiary legislation), bearing in mind that judicial reviews are as a rule heard in the High Court. In this regard, it had been observed by the Divisional Court in Quietlynn Ltd v Plymouth City Council[36] that :

“… The law relating to judicial review has become increasingly more sophisticated in the past few decades, and in our view justices are not to be expected to have to assume the functions of the Divisional Court and consider the validity of decisions made by a local authority under this Act in the light of what is now a complex body of law. If a bona fide challenge to the validity of the decision in question is raised before them, then the proceedings should be adjourned to enable an application for judicial review to be made and determined. …”

30.  Likewise, in The Incorporated Owners of No 10 Bonham Strand, McMahon J queried :

“17. By that he was suggesting in my view that the question was whether the legislative intent was to have questions as to whether the decision in issue was based upon irrelevant or improper grounds dealt with by a criminal court. In the present case, which factually is very similar to the circumstances in Wick’s case, it is certainly possible to argue that our legislature cannot have intended that a busy magistrates’ court was the proper forum to go behind the Director’s issued directions and determine whether his decision to issue those directions to the appellants was Wednesbury reasonable or not.”

31.  On the other hand, Lord Irvine in Boddington[37] cautioned against “belittling” magistrates’ courts :

“Nor do I think it right to belittle magistrates’ courts: they sometimes have to decide very difficult legal questions and generally have the assistance of a legally qualified clerk to give them guidance on the law.”

32.  Still on the question of judicial review as the proper channel to challenge the validity of an administrative act, Lord Steyn in Boddington put the matter very strongly against depriving a defendant of an opportunity to mount a collateral challenge in the criminal court just because judicial review was also available :[38]

“… It is true that Bugg’s case allows the defendant to challenge the byelaw in judicial review proceedings. The defendant may, however, be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the Divisional Court may be restricted. He may be denied a remedy on a discretionary basis. The possibility of judicial review will, therefore, in no way compensate him for the loss of the right to defend himself by a defensive challenge to the byelaw in cases where the invalidity of the byelaw might afford him with a defence to the charge. My Lords, with the utmost deference to eminent judges sitting in the Divisional Court I have to say the consequences of Bugg’s case are too austere and indeed too authoritarian to be compatible with the traditions of the common law. In Eshugbayi Eleko v. Government of Nigeria [1931] A.C. 662, a habeas corpus case, Lord Atkin observed, at p. 670, that ‘no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a court of justice.’ There is no reason why a defendant in a criminal trial should be in a worse position. And that seems to me to reflect the true spirit of the common law.”

These are strong words indeed.

33.  The availability or non-availability of judicial review is certainly a relevant consideration, but by no means a conclusive one. Likewise, whether the magistrates’ courts are well-equipped to handle a collateral challenge which otherwise should normally be dealt with by the High Court in judicial review proceedings is also a relevant factor. Ultimately, it is a question of statutory interpretation. No generalised theory or hard and fast rule can be, or should be, laid down. Absent a constitutional challenge to the offence-creating provision itself which, if mounted, the criminal court hearing the prosecution of the offence under challenge will necessarily have to hear and decide for itself,[39] the legislature is free to enact criminal offences comprising whatever constituent elements as it sees fit, or to specify what may constitute a defence to an offence and what may not.

34.  Similarly, the availability of a statutory or administrative procedure to review or appeal against the original administrative act is also a relevant indicium of the true legislative intent, particularly if the administrative decision, the review/appeal mechanism and the criminal sanction (for non-compliance with the administrative decision) all form part and parcel of an elaborate statutory scheme to control and regulate a certain type of activity and/or balance competing rights and freedoms. As observed by L’Heureux-Dubé J in the Canadian Supreme Court case of R v Consolidated Maybrun Mines Ltd[40] concerning a collateral challenge to an environmental administrative order in general proceedings :

“In his treatise on administrative law (Administrative Law (3^rd ed. 1996)), Professor David Mullan suggests that the validity of government acts can just as well be raised directly as collaterally. He wrote the following, inter alia, at p. 490:

The essence of collateral attack is invalidity or an absence of jurisdiction. Decisions or orders made or actions taken without jurisdiction or in excess of jurisdiction are nullities which cannot be relied upon as a justification; they have no legally recognized existence.

Although this proposition is sound, as is usually the case in regulatory matters, it is far too general in scope to be applied in all circumstances. Taken literally, it would imply that a person to whom an order is directed is entirely free, rather than having recourse to the established procedures for challenging the order, to wait for penal charges to be laid before challenging its validity. Such a solution would obviously have serious ramifications for both the government and society in general. Aside from the danger that administrative tribunals would be discredited, increasing recourse to penal sanctions would result. Rather than promoting cooperation and conciliation, which are among the basic objectives of such administrative mechanisms, this would result in a hardening of relations between governments and citizens. In many cases, this would seriously undermine the effectiveness of administrative schemes designed to respond to situations requiring immediate remedial action, as is often the case, for example, in environmental matters.”

All these considerations, where applicable, are therefore relevant in discerning the statutory intent of the offence-creating provision.

Collateral challenges based on constitutional grounds

35.  In my view, the above legal principles hold true whether the validity of the administrative act is sought to be challenged on conventional public law or other non-constitutional grounds, or on constitutional grounds (ie based on fundamental rights). In either case, the question whether the challenge can be made before the criminal court remains a question of statutory construction of the relevant legislation. As Lord Hoffmann pointed out in Wicks,[41] the legislature may simply require an administrative act that is formally valid and has not been quashed by judicial review. It may, for reasons of its own, merely require such an act as a constituent element of the offence. If that is the case, the fact that the act may be liable to be quashed on constitutional grounds in judicial review is not something that concerns the criminal court and does not require that court’s determination. So long as the act has not been quashed by judicial review, it may convict the defendant of the offence.

36.  Here, it is important to repeat the point made earlier that the question is not whether it is the legislative intent to “allow” a collateral challenge based on constitutional grounds to be made against the administrative act in a criminal prosecution. This way of framing the question rather unhelpfully raises the non-issue of whether the legislature can ever by legislation “disallow” defendants from relying on their constitutional/fundamental rights to defend criminal charges by raising collateral challenges.

37.  As explained, the answer to the question of whether a collateral challenge can be mounted against the administrative act which founds the offence – regardless of the grounds on which it is based – lies in whether it is relevant to any issues that the criminal court has to deal with in the criminal prosecution. The answer to this latter question turns solely on what constitute the elements of the offence, and what the applicable statutory (or common law) defence(s), if any, are. And this is essentially a question of statutory construction. If the collateral challenge based on constitutional grounds does not go to any of the elements of the offence or defence(s), it is simply not an issue that the criminal court need or has jurisdiction to deal with. The fact that it is based on constitutional grounds is neither here nor there in the criminal prosecution. If it is contended that the offence, as constituted, is not constitutional, a direct challenge against the offence-creating provision may always be made before the criminal court hearing the prosecution of the offence. In that event, the criminal court will be seized of the challenge and must deal with it accordingly – it will have to consider whether the offence, constituted as it is by merely requiring a formally valid administrative act which has not been quashed by judicial review, engages the alleged fundamental right(s); and if so, whether the offence as so constituted can pass the four-stage proportionality test. But it has to be stressed that such a constitutional challenge against the offence itself is entirely different in nature and involves very different (although some overlapping) considerations from a collateral challenge based on constitutional grounds against a particular administrative act which founds the prosecution, and the two should not be confused with each other. In the present case, one is concerned with the latter, not the former.[42]

38.  Section 6(1)(b) of the Hong Kong Bill of Rights Ordinance[43] provides that a court in proceedings within its jurisdiction “in which a violation … of the Bill of Rights is relevant” may grant such remedy or relief, or make such order, in respect of the violation as it has power to grant or make in these proceedings. The section does not help decide whether a collateral challenge against the validity of the administrative act based on a violation of the Hong Kong Bill of Rights[44] can be entertained in a criminal prosecution because it simply begs the question of whether the violation is “relevant” to the criminal prosecution in terms of the constituent elements of the offence or an applicable statutory defence (if any). The ultimate question remains one of statutory construction of the legislation concerned.

General principles on statutory interpretation

39.  For the sake of completeness, I should add that the general principles on statutory interpretation are well established. As was summarised in HKSAR v Chan Chun Kit :[45]  

“10. The rules of statutory construction are well established. Words are construed in their context and purpose. They are given their natural and ordinary meaning with context and purpose to be considered alongside the expressed wording from the start, and not merely at some later stage when an ambiguity is thought to arise. A purposive and contextual interpretation does not mean that one can disregard the actual words used in a statute. Rather, the court is to ascertain the intention of the legislature as expressed in the language of the statute. As has been repeatedly pointed out, one cannot give a provision a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear.

11. Context here is to be taken in its widest sense and includes other statutory provisions and the general law. The purpose of a statutory provision may be evident from the provision itself, the recommendation of a report such as that published by the Law Reform Commission, the explanatory memorandum to the relevant bill or a statement by the responsible official of the government in relation to that bill in the Legislative Council. It may also be relevant in any given case to look at the history of the provision concerned.”

The Ordinance

40.  With all this in mind, I turn to the relevant provisions in the Ordinance. The Ordinance, first enacted in November 1967 after the very serious civil unrest earlier that year, was substantially amended in 1995[46] and again in 1997.[47]  The amended long title says it is an ordinance to “consolidate and amend the law relating to the maintenance of public order, the control of organizations, meetings, processions, places, … unlawful assemblies and riots and matters incidental thereto or connected therewith”.

41.  Part III of the Ordinance makes provisions for the control of meetings, processions and gatherings. Section 7 regulates the holding of public meetings. Relevantly, it stipulates :

“(1) Subject to this Ordinance, a public meeting may take place if, but only if, –

(a) the Commissioner of Police is notified under section 8 of the intention to hold the meeting; and

(b) the holding of the meeting is not prohibited by the Commissioner of Police under section 9.

(2) This section shall not apply to –

(a) a meeting of not more than 50 persons; …”

42.  Section 8 provides for the giving of notification of public meetings. Subsection (1) reads :

“For the purposes of section 7, notice of the intention to hold a public meeting shall be given in writing to the Commissioner of Police –

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

(b) where the last day for giving notice under paragraph (a) 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. …”

43.  Section 9 gives to the Commissioner of Police the power to prohibit the holding of a public meeting. Subsection (1) reads :

“Subject to this section, the Commissioner of Police may prohibit the holding of any public meeting notified under section 8 where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.”

44.  Subsection (2) requires the notice of prohibition to “state the ground or grounds on which the prohibition is considered to be necessary and the reasons for the Commissioner’s opinion as to those grounds”.

45.  Subsection (3) sets out a stringent timeframe within which the power of prohibition must be exercised :

“The power conferred by subsection (1) shall not be exercised in respect of any public meeting notified under section 8 –

(a) where notice is given in accordance with section 8(1), at any time later than 48 hours; or

(b) where shorter notice of 72 hours or more is accepted by the Commissioner of Police pursuant to section 8(2), at any time later than 24 hours,

prior to the time of commencement of the meeting as so notified.”

46.  Importantly, subsection (4) restricts the power of the Commissioner to prohibit the holding of a meeting as follows :

“The Commissioner of Police shall not exercise the power conferred by subsection (1) to prohibit the holding of a public meeting in any case where he reasonably considers that the interests of national security or public safety, public order or the protection of the rights and freedoms of others could be met by the imposition of conditions under section 11(2).”

47.  Where the Commissioner prohibits the holding of a meeting, an appeal may be lodged with the Appeal Board as provided in section 16 :

“(1) A person, society or organization –

(a) named in a notice given under section 8 or 13A;

(b) to whom a notice of prohibition is given under section 9; or

(c) to whom notice of objection is given under section 14,

who is aggrieved by the decision of the Commissioner of Police to prohibit a public meeting, to object to a public procession or to impose conditions on the holding of a public meeting or public procession may appeal to the Appeal Board.

(2) In this section Appeal Board (上訴委員會) means the Appeal Board constituted under section 44.”

48.  The “person, society or organization” referred to in section 16(1), in the case of an intended public meeting, is a reference back to section 8(4)(a)(i), that is, “the person organizing the meeting and any society or organization promoting or connected with the holding of the meeting”, or the person who gave the section 8 notice.

49.  Similar provisions in Part III are there to regulate the holding of public processions.

50.  Part IX deals with, among other things, the Appeal Board. Section 43 sets out the composition of the Board :

“(1) Every appeal made under section 16 shall be determined by an appeal board to be known as the Appeal Board on Public Meetings and Processions (in this section and sections 44 and 44A referred to as the Appeal Board).

(2) The Chief Executive shall appoint to be the Chairman of the Appeal Board a person who –

(a) is a retired Justice of Appeal or judge of the Court of First Instance;

(b) is a retired District Judge; or

(c) has served for more than 10 years as a magistrate but who is no longer serving as a magistrate.

(3) The Chief Executive shall appoint a panel of 15 persons, not being public officers, whom he considers suitable for appointment under section 44 as members of the Appeal Board, 2 of whom he shall appoint to be the Deputy Chairmen of the Appeal Board. …”

51.  Sections 44 and 44A govern the procedure and practice of the Appeal Board when hearing appeals :

“44. Constitution and powers of Appeal Board

(1) The Appeal Board shall consist of the Chairman or a Deputy Chairman who shall preside at the hearing and 3 persons selected in rotation in accordance with the alphabetical order of their surnames from the panel referred to in section 43(3), whom the Chairman shall appoint to be members of the Appeal Board to hear any appeal.

(2) In relation to the hearing of appeals every question before the Appeal Board shall be determined by the opinion of the majority of the members hearing the appeal and in the case of an equality of votes the Chairman or Deputy Chairman shall have a casting vote.

(3) In hearing an appeal the Appeal Board may receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, and whether or not it would be admissible in a court of law.

(4) The Appeal Board may, after hearing an appeal, confirm, reverse or vary the prohibition, objection or condition appealed against.

44A. Supplementary provisions relating to appeals

…

(3) In the hearing of an appeal, the appellant and the Commissioner of Police shall be entitled to be heard either in person or through a representative.

(4) If a party mentioned in subsection (3) fails to attend or be represented at a hearing of which he has been notified the Appeal Board may hear and determine the appeal in the party’s absence.

(5) Before deciding to dispose of any appeal in the absence of a party the Appeal Board shall consider any representations in writing submitted by that party and, for the purposes of this subsection, an appeal and any reply to an appeal shall be treated as representations in writing. …”

52.  Section 44A(6) is of importance in terms of timing :

“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.”

53.  Subsection (7) is equally important :

“The determination of an appeal by the Appeal Board shall be final.”

54.  Returning to Part III, section 17A(2)(a) materially provides that where “any public meeting … takes place in contravention of section 7 …; … the public meeting … shall be an unauthorized assembly.”[48]

55.  Section 17A(3) goes on to provide :

“Where any public meeting … 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 … referred to in subsection (2)(a); …

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 at level 2 and to imprisonment for 3 years.”

56.  Incitement to commit an offence under section 17A(3), with which the respondent was charged in the present case, is a common law offence, and is punishable under section 101I(2) of the Criminal Procedure Ordinance :

“Where a person is convicted of …

(c) incitement,

to commit an offence for which a maximum penalty is provided by any Ordinance, and no penalty is otherwise provided by any Ordinance for such … incitement, he shall be liable to be sentenced to that maximum penalty.”

57.  The notification requirement under Part III of the Ordinance for the holding of public meetings (and public processions) plainly affects the fundamental rights to freedom of assembly, expression and demonstration. On the other hand, the object of the requirement is to ensure and protect “the interests of national security or public safety, public order or the protection of the rights and freedoms of others”,[49] which are equally weighty matters. Obviously, a delicate balance has to be struck between them. Indeed that was the task faced by the legislature when the substantial amendments leading to the current regime were tabled before the legislative body for debate in 1995. From the Hansard material placed before us, it is plain that the legislature deliberated in great detail on the proposed amendments.

58.  In relation to the notification regime, it subsequently gave rise to litigation which went all the way up to this court. In Leung Kwok Hung v HKSAR[50]concerning public processions, the court upheld the constitutionality of the notification regime as being a necessary and proportionate restriction on the right to freedom of peaceful assembly. As to the appeal mechanism, it is plain from the Hansard material placed before this court that the legislature had debated at some length on the relevant provisions. According to the Report of the Bills Committee to study the Public Order (Amendment) Bill 1994 dated 4 July 1995, which was placed before the meeting of the House Committee on 7 July 1995 :

“The appeal provision

10. Members found the new section 16 inadequate. This new section provided that an aggrieved person could appeal to the Governor in writing against such prohibition or condition imposed by the Commissioner of Police. Members held the view that the appeal body should be independent, effective and able to command trust and should give decision on the appeal before the proposed event. After lengthy deliberation on the principle and the details, the Administration agreed to set up an Appeal Board which would consist of a Chairman and a panel of 15 persons as members. Members discussed in detail the proposed constitution and powers of the Appeal Board with the Administration. Members also discussed in detail the qualification of the Chairman of the Appeal Board and they opined that in order to ensure its independence from Government, both in substance and in appearance, he should be a member of the community with high standing and should command respect. The Bills Committee recommended that he should be a retired High Court or District Court judge, or a former magistrate who had served in the Judiciary for ten years or more. The Administration agreed with Members’ suggestion and would move a Committee Stage Amendment to this effect.

11.  Members considered whether the Appeal Board should be empowered to consider appeals against the Police’s decision not to accept notices of less than seven days for holding of a public meeting, despite the fact that the Board might not be able to meet and give a ruling prior to the event. The Administration said the organiser would then be at liberty to seek a judicial review as a post-event ruling given by the Appeal Board would not be meaningful. Hon FUNG Chi-wood however remained unsatisfied with the answer and might consider moving a Committee Stage Amendment.”

(emphasis added)

59.  In the Secretary for Security’s speech to the Legislative Council on 19 July 1995 during the Second Reading of the Bill, it was said :

“The Bills Committee felt strongly that there should be an independent appeal procedure to replace the present arrangement for appeals to be made to the Governor. The proposed Appeal Board should be independent from the Administration, be able to hear an appeal quickly and deliver a pre-event decision, that is, before the public gathering is scheduled to take place. After careful consideration, we have agreed to provide for the establishment of the Appeal Board on Public Meetings and Processions and have accepted the suggestion of the Bills Committee to appoint a retired judicial officer to be Chairman of the Board.”

60.  As can be seen from sections 16, 44 and 44A, the Appeal Board with the composition outlined by the Secretary was indeed established under the Ordinance after the amendments were passed into law.

Two competing concerns

61.  As the long title of the Ordinance expressly says, the object and purpose of the Ordinance are, relevantly, the maintenance of public order, and the control of meetings, processions, unlawful assemblies and riots. In particular, section 9(1)[51] highlights the importance of the interests of national security, public safety, public order and the protection of the rights and freedoms of others, in the context of regulating and controlling the holding of public meetings (and public processions). These are important matters, especially when Hong Kong has at different stages of its history seen mass public meetings and demonstrations involving tens if not hundreds of thousands of people. Given Hong Kong’s small geographical size and crowded urban condition, concerns of public safety, public order and the protection of the rights and freedoms of others, not to mention the interests of national security where applicable, have always been important and proper issues that require serious consideration and addressing.

62.  Equally importantly, the rights to freedom of expression, peaceful assembly and demonstration are important fundamental rights. Back in 1995, those were particularly significant and sensitive rights, as Hong Kong was only two years away from 1997.

63.  The relevant provisions in the Ordinance no doubt represent a considered balance between these two competing and equally valid concerns that the legislature has sought to address. The resulting notification regime comprises, among other things, a ban of all meetings of more than 50 people absent notification or if prohibited; the power to prohibit but only on specific grounds and as a last resort; an appeal mechanism against a prohibition; a carefully chosen Appeal Board which is “independent, effective and able to command trust”;[52] a requirement that the appeal be heard “with the greatest expedition possible” before the intended meeting date so as not to “frustrate” the holding of the meeting; a “final” determination by the Appeal Board; and criminal sanctions for non-compliance. It can be fairly said that the regime represents a carefully considered scheme designed to strike a proper balance between the two concerns outlined above.

The strong emphasis on time

64.  The strong emphasis on time regarding the giving of notification of an intended meeting, the notification of a prohibition, and the hearing and disposal of an appeal, coupled with the express provision that the determination of the Appeal Board is “final”, is highly indicative of a statutory intent to ensure that everyone – the organiser of the intended meeting, the police, the intended participants of the proposed meeting, and the public at large – clearly knows where they stand in relation to the proposed meeting before the scheduled date for its holding. All this makes sense.

65.  If a meeting is not prohibited or is allowed by the Appeal Board to proceed, both the organisers and those intending to join the meeting will know for sure that they can hold and join the meeting, so long as any conditions or measures required by the police are complied with. On the other hand, if a meeting is prohibited and an appeal (if any) is unsuccessful, likewise, everyone concerned will know that the meeting cannot be lawfully held. There is certainty for everyone, and public order, public safety, rights and freedoms of others as well as the interests of national security (where relevant) are protected at the same time.

The offence

66.  Situating the offence-creating provisions (that is, section 17A(2) and (3)) in the above context and as part of the notification regime under the Ordinance, one can immediately see the purpose and object of the offence. It is there to back up a prohibition made under the notification regime which is not overturned by the Appeal Board on appeal (if any). A prohibition without criminal sanction for its defiance is one without teeth, the inevitable consequence of which is to jeopardise the interests of national security, public order, public safety and the rights and freedoms of others (where relevant).

67.  Zooming in on the very question that this appeal raises, if an offence under section 17A(3) permits[53] a defendant to re-open in the prosecution the question of the validity of a prohibition even though it has been upheld by the Appeal Board, this would certainly weaken the authority of a prohibition and might encourage people to hold and attend the public meeting despite the prohibition, in the hope that in any subsequent criminal prosecution they would succeed in challenging the legality of the prohibition. This would in turn lead to uncertainty and confusion among members of the public as to whether they could or could not attend the intended public meeting. Nor would the police know whether they could lawfully arrest or take other enforcement actions against those assembling in spite of the prohibition. All this would be to the detriment of the protection of any relevant interests of national security, public order, public safety or the protection of the rights and freedoms of others. One therefore asks, rhetorically, whether that could have been the true legislative intent, despite all that had been said and debated during the legislative process regarding striking a proper balance between upholding fundamental freedoms and protection of public order etc, as well as the promotion of certainty and so forth.

The Appeal Board

68.  The requirement that the Chairman of the Appeal Board shall be a retired professional judge or judicial officer is telling. Indeed, section 43(2)(a) refers to a retired Justice of Appeal of the Court of Appeal or a retired Judge of the Court of the First Instance. At the minimum, section 43(2)(c) requires someone who has served for more than ten years as a magistrate but who is no longer serving as a magistrate to chair the Board. Such a stringent qualification requirement for the Chairman of the Board, who sits with three non-government members and enjoys a casting vote, suggests a legislative intent that the decision of the Appeal Board should carry authority and weight, and more importantly, an assurance of correctness of its decision, so that everybody, as mentioned, can be sure as to what the legal position of the proposed meeting is before the scheduled date of its holding. This suggests that, as discussed below, judicial review aside, the determination of the Appeal Board is intended to be “final”;[54] so that it cannot be reopened in a criminal prosecution under section 17A(3)(a) for contravention of a prohibition even though, by definition, a prohibition restricts fundamental rights. All this accords well with the known intention behind the new appeal mechanism that “the appeal body should be independent, effective and able to command trust”.[55]

“final”

69.  Section 44A(7) of the Ordinance specifically says that the decision of the Appeal Board shall be “final”. As a matter of proper interpretation, the word must be given a meaning. It is common ground that despite the use of the word “final”, the Appeal Board’s decision is always subject to judicial review. By definition, a prohibition restricts people’s rights to freedom of assembly, expression and demonstration, which are constitutional rights. It is therefore only right that the finality provision in section 44A(7) should be construed to be subject to the right to apply for judicial review to challenge the prohibition.[56] 

70.  Indeed, even if the legislative intent were otherwise (as evinced by the use of extremely clear language), given the constitutional guarantee to access to the courts in article 35 of the Basic Law, the finality provision in section 44A(7) would still be read down to mean subject to judicial review, unless the restriction on access to the courts could be justified.

71.  However, what is important here is not to fall into the mistake of thinking that since the legislature may not be able to create a finality provision which ousts judicial review and therefore “final” in section 44A(7) does not really mean final so far as judicial review is concerned, the word also does not mean what it says when it comes to a collateral challenge to the validity of the prohibition in a criminal prosecution under section 17A(3)(a). While the former may be something quite outside what the legislature may do and it has to accept that, the latter is perfectly within the legislature’s competence and where good reasons exist, something which it may always do. In the present case, it is difficult to discern any reason for the legislature to intend that the validity of a prohibition can be re-opened by a criminal court in a prosecution under section 17A(3), particularly given the context and background of the amendments to the Ordinance. Indeed to so construe the word “final” would deprive the word of any practical meaning at all. The Hansard material clearly shows that the legislature was fully aware of the fundamental rights involved when debating about the appeal mechanism, and as observed above, the resulting regime, including the finality provision in section 44A(7), represents a carefully considered balance struck between upholding those fundamental rights and achieving the object of the Ordinance to regulate and control public meetings in protection of public order etc.

72.  The above discussion also answers the point that once it is accepted that a successful judicial review would trump a criminal prosecution under section 17A(3)(a), the advantage of promoting certainty and avoiding confusion etc offered by a construction that renders the legality of the prohibition an irrelevant matter in the criminal prosecution is more illusory than real. Granted that the Appeal Board’s determination being subject to judicial review will necessarily undermine the advantage of certainty etc, it is, as explained, something beyond the legislature’s power and control. It does not follow that when it comes to something within its power, such as prescribing the elements of the offence or defining the scope of the statutory defence, the legislature does not want to do what it can to promote certainty and avoid confusion, in protection of public order etc. It clearly does.

“with the greatest expedition possible”

73.  The requirement under section 44A(6) that the Appeal Board shall consider and determine an appeal “with the greatest expedition possible” so as to ensure that the appeal is not “frustrated” by reason of the decision of the Board being given only after the proposed meeting date is again indicative of a legislative intent that the Board’s decision is “final” (leaving aside judicial review). If this was not so, and if at a criminal prosecution the question of whether the prohibition had been validly made could still be re-visited despite its having been upheld by the Board, there would be very little reason for requiring the Board to decide the appeal before the date of the proposed meeting in the first place. Nor would the holding of the meeting be “frustrated” by the Board rendering its decision only after the date of the intended meeting. For the practical effect of such a contention is that the criminal court – very likely a magistrates’ court – would be the final arbiter of the matter, rather than the Appeal Board. This would, in turn, make the stringent qualification requirements for the Chairman of the Appeal Board, as part of the statutory design under the Ordinance, a rather odd and indeed unnecessary one.

74.  The stipulation that the decision of the Appeal Board, to be given before the date of the intended meeting, is final has the advantage of informing all members of the public where they stand in relation to the meeting. Given the purpose of the Ordinance, that is, the protection of public order, public safety and so forth, this is an advantage which the legislature must have firmly borne in mind when designing the scheme under the Ordinance, including the enforcement provisions.

Appeal, judicial review and the rule of law

75.  For most people, a “final” determination by the Appeal Board upholding a prohibition would be the end of the matter. But if the organisers do not agree with the Appeal Board’s decision, they may always apply for judicial review against it. No doubt, such a course would normally take time, and they would have to make up their minds as to whether they would wish to risk prosecution by proceeding with holding the prohibited meeting in the meantime. The same also applies to others who would otherwise want to join the meeting. Although the appellant has apparently not been prepared to accept so much, it is quite plain that if the prohibition or the decision of the Appeal Board is subsequently quashed by the High Court in judicial review, any criminal prosecution would fail.[57]  It is difficult to imagine a legislative intent under section 17A(3) that a conviction may be based merely on a formally valid prohibition at the time of the commission of the alleged offence, even though by the time of the criminal trial, it has been quashed by judicial review. This is especially so when a prohibition in the present context necessarily affects people’s fundamental rights to freedom of assembly, expression and demonstration.

76.  If the organisers do not challenge the Appeal Board’s decision by means of judicial review, it is safe to assume that the legislature would not expect them to proceed with holding the proposed meeting, nor that other people would want to join or participate in the prohibited meeting. And if somehow they do and are prosecuted, there is little injustice if the legislature does not intend the criminal court to re-visit the validity of the prohibition.

77.  In Boddington, the House of Lords was very much concerned by the fact that the byelaw in question was directed at the general members of the public, and the first time a member was made aware of it and had the opportunity to challenge it would likely be when he or she was prosecuted before a criminal court for breaching the byelaw. The present case is, however, far from that situation. In the context of public meetings falling within the ambit of the Ordinance, the public or intended participants of a proposed meeting are likely to be well aware of a prohibition. Likewise, any decision of the Appeal Board is likely to be well publicised. If the organisers want to challenge the prohibition by way of judicial review, they can do so and, in the nature of things, this would also be known to the public.

78.  Therefore, although this is not a case like Wicks where the enforcement notice was directed at a particular individual (namely, the defendant) affording him an opportunity to challenge it before any prosecution, the prohibition here is directed at the organisers who may appeal it to the Appeal Board, and subsequently challenge any adverse outcome in the High Court by way of judicial review. It is legitimate to assume that the legislature intends and expects the intending participants of the proposed meeting to rely on the organisers to challenge the prohibition. After all, the organisers are in the best position to know their own ability and capacity to hold the meeting, what measures they can offer to the police to ensure public order etc, what conditions required by the police are within their ability and power to comply with, and so forth. If the organisers do not appeal a prohibition and somehow the meeting is still proceeded with, a participant at the meeting who has been arrested and/or fears prosecution, or is in fact prosecuted, may still resort to judicial review to challenge the prohibition. Of course, he or she must act promptly given the time limit for making judicial review applications, but then the court always has the power to extend time if good reason is shown.[58]  I do not see standing as a problem as, by definition, these are people who have been arrested and/or are fearing prosecution, or are being prosecuted for violating the prohibition and therefore have a sufficient interest in challenging the prohibition by way of judicial review, over and above other members of the general public.[59]

79.  Thus analysed, a balance is well struck between achieving the object of the Ordinance (that is, protecting the interests of national security, public safety, public order or the rights and freedoms of others) and upholding the rights to freedom of assembly, expression and demonstration, and also between the need for effective enforcement of a prohibition on the one hand and upholding the rule of law by affording those affected by it a direct or indirect means to challenge the prohibition on the other.

80.  In summary, as regards the rule of law concerned, it has to be remembered that the Ordinance provides for a very speedy and effective means of reviewing a prohibition by the Appeal Board. Furthermore, the decision of the Appeal Board is always subject to judicial review. Although those who may appeal to the Appeal Board are essentially limited to the persons organising the proposed meeting, they are the very persons who are expected to challenge a prohibition if they disagree with it. Moreover, it is quite unlikely that if the organisers do not challenge a prohibition and no longer proceed with holding it, other intending participants of the meeting would still go ahead with the meeting. And if they do, given the absence of an organiser, the concern of public order or public safety etc would be even greater, and there would be all the more reason for enforcing a prohibition by criminal sanction. In the quite unlikely event that the meeting still proceeds and results in prosecution, those prosecuted may still apply for judicial review against the prohibition and ask for an adjournment of the criminal prosecution pending the outcome of their application.[60] 

81.  I am not attracted by the suggestion that since only the organisers can resort to the appeal mechanism under the Ordinance but not a mere intending participant at the meeting, only the former but not the latter should be disallowed from mounting a collateral challenge against the prohibition in a criminal prosecution. Obviously, this suggestion would result in the risk of inconsistent prosecution outcomes between the organisers and the mere participants, which would neither be fair nor conducive to promoting the object of the Ordinance to protect public order etc. It is difficult to justify any such inconsistency in terms of the statutory intent, especially when, as explained, the intending participants are expected to rely on the organisers to appeal the prohibition, and more importantly, both the organisers and the participants can resort to judicial review to challenge the prohibition. Nothing in the Ordinance indicates that the suggested distinction between the organisers and the participants represents the legislative intent behind the offence-creating provisions.

Construction of the provisions

82.  Bearing all this in mind, I would construe section 17A(2) when it refers to a public meeting taking place “in contravention of section 7” to mean a public meeting of over 50 persons taking place despite a formally valid prohibition by the Commissioner under section 9. It is a formally valid prohibition “under section 9”[61] if on the face of it, it complies with the requirements of that section, and has not been reversed by the Appeal Board on appeal or quashed by judicial review before the conclusion of the criminal proceedings. In my view, “prohibited by the Commissioner of Police under section 9” in section 7(1)(b) is, as a matter of language construed in the light of the purpose and context of the Ordinance explained above, capable of bearing and does bear such a meaning.

83.  Likewise, I would further construe “without lawful authority or reasonable excuse” in section 17A(3)(a) to not include the mere fact that the prohibition may be liable to be quashed by judicial review but has not been so quashed, whether on conventional public law or other non-constitutional grounds, or on constitutional grounds.

84.  For these reasons, in a prosecution under section 17A(3)(a), the validity of the prohibition is not relevant to any issues facing the criminal court and for that reason, no collateral challenge to its validity may be mounted before that court. In this regard, there is no difference between a collateral challenge based on conventional public law or other non-constitutional grounds and one that is founded on constitutional grounds.

85.  By the same token, in a prosecution for incitement to commit a section 17A(3)(a) offence, no such collateral challenge may be made.

Conclusion on the first certified point of law

86.  I would answer the first certified point of law in the negative.

The second certified point of law

87.  It is therefore unnecessary to answer the second certified point of law on the approach to determining a collateral challenge, and I do not wish to do so. However, I should not be taken to be agreeing with the conclusion reached by the judge on the question of “operational proportionality” on the facts of the present case.

No other constitutional challenges

88.  For the sake of completeness, it should be noted that in this case, there is no constitutional challenge against the offence created under section 17A(2) and (3)(a) of the Ordinance or the underlying notification regime under the Ordinance.[62]  In other words, there is no suggestion, for instance, that if (as I have held) the essential elements of the offence only require a formally valid prohibition, the offence is unconstitutional as it disproportionately restricts the right to freedom of assembly etc. If there had been any such challenge before the criminal court hearing the prohibition of the offence, that court, as explained,[63] would necessarily be seized of the issue and have to decide it. However, no such challenge has ever been made, and it is therefore not something that the criminal court or this court need deal with.

Disposition

89.  There being no longer any other grounds to challenge the conviction, I would allow the appeal and restore the conviction of the respondent. The judge has not dealt with the respondent’s appeal against sentence, despite hearing submissions on it. I would remit the appeal against sentence to the judge for determination.

Mr Justice Ribeiro PJ:

90.  I have had the advantage of reading in draft the judgment of the Chief Justice. I respectfully agree with his conclusion that the appeal should be allowed, the respondent’s conviction restored and her appeal against sentence remitted to the Judge for determination. However, I have arrived at that conclusion by a different route. I shall therefore set out my reasoning and indicate where, with the greatest respect, I differ from his Lordship.

A.  The issues

A.1  The questions arising

91.  In this appeal, the Court has occasion to consider whether and on what basis an accused may be permitted to challenge by way of defence in criminal proceedings the lawfulness of an allegedly pertinent administrative act or order.  In this case, that act involves the prohibition by the Commissioner of Police (“CP”) pursuant to powers under the Public Order Ordinance (“POO”)[64] of a public assembly proposed to be held at Victoria Park on 4^th June 2021. The respondent, Ms Chow Hang Tung (“Chow”), seeks to challenge the lawfulness of that prohibition by way of defence in the prosecution she faces for inciting others to take part in that prohibited meeting (alleged to constitute an unauthorized assembly) contrary to section 17A(3)(a) of the POO.

92.  Leave to appeal was granted in respect of the following questions:

“(1) In a prosecution for an offence of incitement to knowingly take part in an unauthorized assembly contrary to Common Law and section 17A(3)(a) of the Public Order Ordinance, Cap 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap 221, is it open to a defendant to raise by way of defence the legality of the police’s prohibition of the subject public meeting which was subsequently upheld by the Appeal Board on Public Meetings and Processions (‘the Appeal Board’)?

(2) In the event that the answer to the above question is in the affirmative, what is the correct approach that the court should take in considering a defendant’s challenge to the legality of the police’s prohibition and of the subsequent determination by the Appeal Board?”

93.  Such a challenge to the prohibition’s legality may be based on non-constitutional grounds alleging, for instance, that the statutory requirements were not complied with, or invoking conventional public law grounds, such as that the decision was ultra vires; arrived at in a procedurally unfair way; was Wednesbury unreasonable, and so forth. I shall call such a challenge a “collateral attack” to distinguish it from a challenge mounted on constitutional grounds (a “constitutional challenge”) in which it is argued that the prohibition unlawfully restricts a guaranteed constitutional right and is thus constitutionally invalid.

94.  The question arises as to whether the approach in law differs depending on whether the challenge is a collateral attack or a constitutional challenge. Hence, in my view, the certified questions may appropriately be elaborated upon as follows:

(a)  Is it open to Chow to mount a collateral attack on the prohibition by way of defence in the criminal proceedings? If so, what are the principles for determining when such a challenge is permissible and whether it succeeds?

(b)  Similarly, is it open to Chow to mount a constitutional challenge on the prohibition by way of defence in the criminal proceedings? And if so, what are the principles for determining when such a challenge is permissible and whether it succeeds?

In a particular case, a challenge might be mounted on both grounds.

A.2  The context: two different processes

95.  The aforesaid questions arise in the context of two separate events or processes. The first involves the process under the POO which led to the CP’s prohibition of the gathering by giving the organizers notice to that effect (“the prohibition order”). I shall call this “the decision process”. The second process involves the criminal proceedings against Chow before the Magistrate[65] and, on appeal, before Barnes J.[66]

B.  The decision process

96.  The decision process occurred within the framework of the POO. A public meeting is permitted to take place only if the CP has been notified of the intended meeting and has not prohibited it from being held,[67] the duty to give such notice (with prescribed particulars) resting on the organizers.[68] 

97.  In the present case, notice was given on 27 April 2021 by one Tsoi Yiu-cheong Richard (“Tsoi”), named as the organizer, stating that the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (“Hong Kong Alliance”) was the organisation promoting the intended meeting. Subsequent contacts with the police were conducted by one Leung Kam-wai (“Leung”),[69] apparently as Tsoi’s or the association’s designated representative. The notice stated that the meeting was to take place from 08:00h to 24:00h on 4 June 2021 in Victoria Park “to commemorate the 32^nd anniversary of ‘June 4’” with between 100,000 and 150,000 persons expected to attend. This was during a period when Hong Kong and the rest of the world were severely affected by the Covid-19 pandemic.

98.  On 25 May 2021, Leung had a meeting with the police and consequently amended the notice to state that the meeting would only last from 20:00h to 22:00h, with the earlier and subsequent hours spent in preparing and then cleaning up the venue. The estimated number of expected participants was revised downwards to 40,000 to 60,000 and the number of marshals raised from 50 to 100 to 70 to 120.

99.  POO section 9(1) empowers the CP to prohibit “the holding of any public meeting notified under section 8 where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others” (“the specified interests”). Section 9(2) requires written notice of such prohibition to be given to the person who gave the section 8 notice and must “state the ground or grounds on which the prohibition is considered to be necessary and the reasons for the [CP’s] opinion as to those grounds”. POO section 9(4) precludes the exercise of the power to prohibit if the specified interests can adequately be met by imposing appropriate conditions:

“The Commissioner of Police shall not exercise the power conferred by subsection (1) to prohibit the holding of a public meeting in any case where he reasonably considers that the interests of national security or public safety, public order or the protection of the rights and freedoms of others could be met by the imposition of conditions under section 11(2)[70].”

100.  A point to which I shall return[71] is that the wording of POO sections 9(1) and 9(4) identifying the specified interests closely resembles the wording of Article 17 of the Hong Kong Bill of Rights (“BOR17”) which provides:

“Right of peaceful assembly

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.”

101.  Thus, the grounds upon which the CP is authorised to prohibit public assemblies closely track the grounds upon which BOR17 permits proportionate restrictions on the right of peaceful assembly.

102.  On 27 May 2021, exercising his powers under section 9, the CP gave notice to Tsoi and the Hong Kong Alliance, cc Leung, that the proposed June 4 meeting was prohibited since he considered this necessary “for maintaining public safety and public order, and protecting the rights and freedom of others after taking into account” the need to prevent the spread of Covid-19. The prohibition order referred to the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation[72] which then prohibited gatherings of more than four persons in any public place and noted that Covid-19 was “a highly infectious and potentially fatal disease, with [a] long incubation period and asymptomatic carriers”; and stated that Hong Kong’s response level was still at the highest Emergency Level indicating a high and imminent risk of community outbreaks; that the Department of Health had advised the reduction of social contact; that public meetings were high-risk activities posing serious threats to the lives and health of all citizens; and that conditions which might be imposed would not provide sufficient protection.

103.  POO section 16(1) gives a right of appeal to the Appeal Board against a prohibition order to “A person, society or organization (a) named in a notice given under section 8 …; (b) to whom a notice of prohibition is given under section 9; ... who is aggrieved by the decision of the CP...”  Tsoi, the Hong Kong Alliance as the relevant organization and Leung came within section 16(1). Chow did not. The Appeal Board is empowered to confirm, reverse or vary the prohibition, objection or condition appealed against.[73]

104.  Leung lodged an appeal and attended a hearing on 29 May 2021 where he made representations to the Appeal Board against the prohibition. He was unsuccessful and the Board confirmed the CP’s decision stating that, given the currency of the Covid-19 pandemic, the proposed meeting would pose a serious threat to the general public, public order and public safety. It observed that the pandemic was not yet under control in neighbouring areas and that the World Health Organization had pointed out that mass gatherings “would intensify the spreading of the virus”; that restrictions on gathering were still in force in Hong Kong; and “the progress of vaccination seemed to be less than satisfactory”. It stated that Leung had “failed to convince the Appeal Board that the anti-virus measures suggested by them would be practical.” 

105.  On the same day, the Security Bureau publicised the prohibition. The press release advised that the meeting would constitute an unauthorized assembly and that taking part in it or advertising or publicising it would be an offence under POO section 17A. Leung, Tsoi and the Hong Kong Alliance took no further steps to challenge the prohibition.

106.  Thus, the decision process came to an end on 29 May 2021. The prohibition order took effect and no meeting was held at Victoria Park on 4^th June 2021.[74]

C.  The criminal proceedings

C.1  The offence charged and applicable POO provisions

107.  The proceedings against Chow were occasioned by online messages she had posted on Facebook and Twitter on 29 May 2021 and a newspaper article she had published in Ming Pao on 4 June 2021 concerning the marking of the June 4 anniversary. Those publications led to her being charged with inciting others, without lawful authority or reasonable excuse, knowingly to take part in a public meeting which was an unauthorized assembly by virtue of section 17A(3)(a) of the POO. That provision relevantly states:

“Where any public meeting ... 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 ... shall be guilty of an offence and shall be liable ... on summary conviction, to a fine at level 2 to imprisonment for 3 years.”

108.  “Subsection (2)” (ie, section 17A(2)) relevantly provides:

“Where –

(a) any public meeting ... takes place in contravention of section 7 ...;

the public meeting, ... shall be an unauthorized assembly.”

109.  And section 7 materially provides:

“(1) Subject to this Ordinance, a public meeting may take place if, but only if, –

(a) the Commissioner of Police is notified under section 8 of the intention to hold the meeting; and

(b) the holding of the meeting is not prohibited by the Commissioner of Police under section 9.”

110.  As has already been noted, section 9(1) empowers the CP to prohibit public meetings if he reasonably considers prohibition necessary in the specified interests, subject to section 9(4) which states that he shall not exercise that power if he reasonably considers that the specified interests could be met by the imposition of appropriate conditions.

111.  The prosecution’s case[75] was that Chow knew that the proposed meeting had been prohibited by the CP whose decision had been upheld by the Appeal Board, but that she had unlawfully incited other persons without lawful authority or reasonable excuse knowingly to take part anyway in an unauthorized assembly “namely the prohibited Proposed Public Meeting” at Victoria Park on 4 June 2021.[76]

C.2  The proceedings before the Magistrate

112.  Chow’s trial before the Magistrate began on 5 October 2021, some four months after the decision process had ended. She raised a number of issues denying guilt, one of her main contentions being that the publications did not constitute an incitement to commit a section 17A offence but merely encouraged others to light a candle to mark the June 4 anniversary. However, the Magistrate held that on the evidence, readers of her publications “were asked to persist in attending the Hong Kong people’s annual candlelight vigil at Victoria Park on 4 June organized by the Hong Kong Alliance”[77]. That finding was later upheld on appeal.[78]

113.  Of immediate importance is the Magistrate’s acceptance of the prosecution’s submission that:

“... it was not open to the defendant to challenge the validity and justifications of the Prohibition Order in a criminal court by way of defence because such challenges, in particular those raised by the defendant were grounds for a judicial review, which should be dealt with by the Appeal Board and examined and resolved by way of judicial review rather than by a criminal court.”[79]

114.  The Magistrate also held that the validity of the CP’s decision was not a necessary element in the offence[80] and that, as a matter of construction, the legislative intention, manifested by the existence of an appeal procedure and by POO section 44A(7) which provides that the determination of an appeal by the Appeal Board shall be “final”, was to exclude such challenges.[81]

115.  It was on that basis that the collateral attack and constitutional challenge were rejected without being substantively addressed.

C.3  The appeal proceedings

116.  Barnes J disagreed with the Magistrate’s exclusion of the challenges to the prohibition’s validity. She noted that Chow had raised a constitutional challenge but held that there was insufficient evidence to draw a conclusion on whether the ban was disproportionate in the then current state of the pandemic.[82]

117.  Her Ladyship allowed the appeal on the basis that the CP’s decision to prohibit was invalid because he had failed to comply with POO section 9(4). She accepted the appellant’s submission that certain conditions for holding the meeting:

“... could obviously be taken into account, such as, ... limiting the time slots for admission, the number of participants, setting up multiple venues to thin out the crowd, requiring participants to scan the LeaveHomeSafe app and wear a mask and imposing a ban on eating, so as to control the actual risk of spreading the virus.”[83]

118.  Barnes J held that the CP was under a positive duty “seriously [to] initiate consideration on or propose” those measures. Failure to do so amounted to non-compliance with section 9(4) so that the CP was thereby precluded from prohibiting the meeting. The Appeal Board’s decision suffered from a like deficiency. Her Ladyship concluded:

“Taking all the above into consideration, it is my view that the evidence did not show that the police had discharged their positive duty under section 9(4) of the Public Order Ordinance by considering that apart from the ban, whether there were other feasible measures which would permit and facilitate the holding of the meeting. Both the Appeal Board and the trial magistrate accepted the pandemic consideration to be the reason for issuing the Prohibition Order, but they also did not take into account the feasibility of other measures or conditions. Therefore, the respondent has failed to establish the legality of the Prohibition Order, and I find that the challenge by the appellant succeeds.”[84]

I return to consider the learned Judge’s decision further in Section I of this judgment.

D.  The two processes should not be elided or confused

119.  It is self-evident that the two processes are entirely separate and distinct. They occurred at different times, involved different parties, differed in their subject-matter, required the application of different legal principles and produced different outcomes. Chow did not take part in the decision process. In the criminal proceedings, she was not concerned with re-opening, appealing or setting aside the CP’s prohibition order. Her aim was to mount a defence which would have no effect on the prohibition order which had been issued four months before the magistracy trial and 18 months before the appeal.

120.  It is therefore of basic importance that the legal aspects of the two processes should not be elided and confused. With respect, such confusion arose when the Magistrate held that it was not open to Chow to challenge the validity of the prohibition by way of defence “because such challenges, ... were grounds for a judicial review, which should be dealt with by the Appeal Board and examined and resolved by way of judicial review rather than by a criminal court.”[85]  It was misplaced to deprive Chow of an opportunity to raise an important aspect of her defence on the basis that she should instead have had her challenge dealt with by the Appeal Board and by judicial review as part of the decision process to which she had not been a party. Such an approach is, with one exception referred to in Section E below, fallacious. That erroneous elision appears repeatedly in the appellant’s submissions on the present appeal. For instance, the appellant submits that “[the] proper forum for [a challenge to the legality of the CP’s decision] is via an appeal to the Appeal Board and by judicial review.”[86] Elaborating, the appellant’s written case states:

“... a CP’s decision is a constrained one and subject to dual supervision by the Appeal Board and by judicial review. Thus, if a CP’s decision is upheld by the Appeal Board and is not quashed in judicial review, it must follow that such decision is or should be proportionate and lawful as the issue has been addressed. In those circumstances, there is no basis for a defendant to challenge such decision in the subsequent criminal trial.”[87]

121.  It confuses the two processes to suggest that the CP’s successful defence of the prohibition order before the Appeal Board and/or on a possible judicial review (to which Chow was not a party), removes any basis for Chow to raise a challenge by way of defence in her own criminal trial (to which the CP and the Appeal Board were not parties).

E.  “Same person” cases

122.  The exception referred to above involves the situation where the person seeking to mount a collateral attack questioning the lawfulness of an administrative order by way of criminal defence is the very person against whom that order was specifically directed as intended by the statute pursuant to which the order was made. I shall call these “same person” cases. This discussion is confined to collateral attacks, leaving aside for the present constitutional challenges.

123.  In same person cases, the order sought to be impugned is, in accordance with the legislative purpose of the enabling statute, directed distinctively at the individual or individuals concerned (and not generally at members of the public or members of a class of individuals) requiring them to comply with the order. Such individuals must realise that they will face prosecution if the order is contravened. If aggrieved by the order, it is reasonable to expect those persons to challenge it by an available appeal procedure and/or by judicial review. Where such a challenge has been unsuccessful (or not resorted to) and they go ahead with contravening the order, the authorities show that an attempt by them to mount a collateral attack against the order’s legality by way of defence in a consequent prosecution is generally held to be precluded as a matter of statutory construction.  

124.  For example, in R v Wicks,[88] a local planning authority had served an enforcement order on the defendant requiring him to remove certain parts of a building erected in breach of planning control. The defendant appealed to the Secretary of State without success but persisted in failing to comply with the notice. When prosecuted, he sought to challenge the enforcement order on the basis that it had been issued in bad faith and motivated by immaterial considerations. Lord Hoffmann noted the “same person” aspect of the case, observing:

“As Keene J. said in the Court of Appeal, the owner has been served with the notice and knows that he has to challenge it or comply with it. His position is quite different from that of a person who has contravened a byelaw, who may not have heard of the byelaw until he contravened it.”[89]

125.  The contrasting approach in a byelaws case (as opposed to a same person case) was highlighted in Boddington v British Transport Police,[90] where, pursuant to new byelaws, it was made an offence to smoke in a railway carriage in which a notice prohibiting smoking was displayed. Such byelaws were of a general character and directed at all users of the railway. The defendant found that “no smoking” notices had been posted in every carriage and went ahead with smoking a cigarette anyway. He was convicted by the Magistrate and his case eventually reached the House of Lords, one of the certified points of law being “whether a defendant could raise as a defence to a criminal charge a contention that a byelaw, or an administrative decision made pursuant to powers conferred by it, is ultra vires.”[91]  One of his arguments was that the power to “regulate” smoking on trains did not extend to imposing a ban throughout the train.

126.  Lord Irvine of Lairg LC explained the principle as follows:

“The particular statutory schemes in question in Reg. v. Wicks [1998] A.C. 92 and in the Quietlynn case [1988] 1 QB 114 did justify a construction which limited the rights of the defendant to call the legality of an administrative act into question. But in my judgment it was an important feature of both cases that they were concerned with administrative acts specifically directed at the defendants, where there had been clear and ample opportunity provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts, before being charged with an offence.

By contrast, where subordinate legislation (e.g. statutory instruments or byelaws) is promulgated which is of a general character in the sense that it is directed to the world at large, the first time an individual may be affected by that legislation is when he is charged with an offence under it: so also where a general provision is brought into effect by an administrative act, as in this case. A smoker might have made his first journey on the line on the same train as Mr. Boddington; have found that there was no carriage free of no smoking signs and have chosen to exercise what he believed to be his right to smoke on the train. Such an individual would have had no sensible opportunity to challenge the validity of the posting of the no smoking signs throughout the train until he was charged .... In my judgment in such a case the strong presumption must be that Parliament did not intend to deprive the smoker of an opportunity to defend himself in the criminal proceedings by asserting the alleged unlawfulness of the decision to post no smoking notices throughout the train.”[92]

127.  Boddington was therefore not a “same person” case and the appellant was not precluded from raising a collateral attack challenging the vires of the byelaw by way of defence, although that challenge was held to be unsuccessful.

128.  An example of a “same person” approach in our courts is HKSAR v The Incorporated Owners of No 10 Bonham Strand.[93]  The defendants there failed to comply with a Fire Services Department direction specifically requiring them to install a sprinkler system in their premises and did not seek to challenge that direction until they were prosecuted and convicted before the Magistrate for such failure. They sought to argue on appeal that it was an unreasonable direction because the premises were so small. McMahon J held that that argument was not open to them, stating: “...unlike the position in Boddington’s case where the defendant was unaware of the particular order or law until or shortly before he committed and was charged with the offence” the defendant was given ample time by the Ordinance and direction issued to challenge the direction in the High Court which was a more appropriate forum.[94]

129.  HKSAR v Sky Wide Development Ltd,[95]provides an extreme example. The appellants had previously applied to the Court of First Instance and the Court of Appeal for judicial review of demolition orders issued against them by the Building Authority, arguing that those orders were too vague to be complied with, but all the applications were dismissed. When they were summonsed for failing to comply with the orders they sought to challenge their validity, resurrecting the rejected arguments. They failed before the Magistrate and on appeal. It would have been startling for the Magistrate to entertain the challenge on grounds already rejected by the Court of First Instance and the Court of Appeal.

130.  The same person cases may juridically be explained on the basis of statutory construction. It is held in such cases that the legislative intent is for such individuals to have recourse to the means made available to challenge the orders which had been explicitly directed against them rather than to launch collateral attacks in subsequent criminal proceedings. As Lord Hoffmann put it, one must “challenge it or comply with it”. For the reasons developed below, constitutional challenges are not susceptible to exclusion by way of such statutory construction. But, as later explained, that does not mean that the prospects of success of a constitutional challenge in same person cases are likely to be any greater.

131.  The present case is not in the “same person” category. Although Tsoi and the Hong Kong Alliance were served with notice of the CP’s prohibition as required by POO section 9(2), the order was not merely addressed to them, but was directed at the general public (in accordance with the statutory purposes of that Ordinance) who were informed that the meeting was an unauthorized assembly and that “no one should take part in it, or advertise or publicise it, or else he or she may violate the law”[96]. Thus, in the present case, as a matter of construction, the “same person” exception is inapplicable and does not provide a basis for excluding a collateral attack raised by way of defence on Chow’s part in her subsequent prosecution.

F.  Collateral attacks

F.1  A matter of construction

132.  Whether a collateral attack on non-constitutional grounds is open to a defendant in criminal proceedings by way of defence depends on the construction of the relevant statute.[97]  As Lord Hoffmann stated in R v Wicks:[98]

“The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices. It is in my view impossible to construct a general theory of the ultra vires defence which applies to every statutory power, whatever the terms and policy of the statute.”

133.  In Boddington v British Transport Police,[99] Lord Irvine LC opined that, apart from the offence-creating provisions of the statute, “any other relevant statutory provisions” should also be considered.

134.  Thus, the statute is construed to determine whether the legislative intention is to exclude a collateral attack and that the formal validity of the order challenged suffices to found criminal liability or whether, on the other hand, the statutory intent is that the order’s validity may be impugned by way of defence, in which case the challenge has to be dealt with by the criminal court.

135.  But how does one decide, in construing the statute, whether formal validity is sufficient or whether the order may be impugned? While Lord Hoffmann notes the impossibility of constructing “a general theory of the ultra vires defence”, the authorities give some indication of how the exercise of construction might be approached.

F.2  The construction exercise

136.  It is clear that the starting-point is that a defendant should generally be allowed to raise the defence. In Wicks, Lord Nicholls of Birkenhead puts it thus:

“Prima facie one would expect, surely, that in the criminal proceedings an accused should be able to challenge, on any ground, the lawfulness of an order the breach of which constitutes his alleged criminal offence. That seems the proper starting point.”[100]

137.  In Boddington,[101] this was considered a strong presumption.  Lord Irvine LC stated:

“...it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings. There is a strong presumption that Parliament will not legislate to prevent individuals from doing so...”[102]

138.  Lord Steyn favoured permitting the defence to be raised and having the court decide whether the challenge succeeds:

“There is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence. Sometimes his challenge may be defeated by special statutory provisions on analogy with the decision in Reg. v. Wicks [1998] A.C. 92. The defence may fail because the relevant statutory provisions are held to be directory rather than mandatory. It may be held that substantial compliance is sufficient. But, if an issue as to the procedural validity of a byelaw is raised, the trial court must rule on it.”[103]

139.  It is logically a requirement of being allowed to mount a collateral attack that, if successful, the criminal defence would succeed. Only then would the challenge be “by way of defence”. This has led to the proposition (developed by the Court of Appeal in SJ v Ocean Technology Ltd & others[104] in the context of a constitutional challenge) that such a collateral attack will only be permitted if, as a matter of construction of the offence-creating provisions, it bears on an essential ingredient of the offence. If it does not do so and if a successful challenge against the targeted subject-matter does not lead to an acquittal, the challenge becomes irrelevant and so is excluded.

140.  It appears further from the authorities that the construction exercise involves the court balancing the presumption in favour of permitting the defence to be raised against arguments in favour of confining such challenges to a forum considered more suited to dealing with public law issues.

141.  Lord Nicholls[105] identified arguments in the latter category as including the following:

“The primary reasons put forward are that the Divisional Court is a more suitable tribunal than the criminal court for deciding certain types of issue. Challenges to the lawfulness of an order often raise complex and sophisticated issues, suited for decision by the specialist judges in the Divisional Court. The criminal courts, and lay magistrates in particular, are not equipped to handle them.

Further, judicial review proceedings have built-in safeguards, in the public interest. There are tight time limits, and the court has a measure of discretion in deciding whether to permit proceedings to be brought and in granting or withholding relief. This protection would be circumvented if a similar challenge could be raised as of right by way of defence in the criminal court.

Still further, the public body whose order is being impugned will be a party to judicial review proceedings. The public body can ensure that all the necessary evidence and legal submissions are presented. This will not always be so with criminal proceedings.

Finally, a decision in the criminal proceedings will not bind the public body. There is a risk of inconsistent decisions in different cases. This is not so in judicial review proceedings. There, if the challenge is successful, the impugned order will be quashed and set aside.”

142.  While acknowledging that those are weighty considerations, His Lordship cautioned against regarding them as decisive:

“These reasons, taken cumulatively, show that there will be cases where proceedings in the Divisional Court are, in practice, much more suitable and convenient. Having said that, it must also be said that the guidance they give on where the boundary should be drawn, and, indeed, on whether there should be a boundary at all, is questionable. These arguments stand in danger of proving too much. If they are persuasive they might be thought to lead to the conclusion that, save in glaringly obvious cases, all challenges to the lawfulness of an impugned order should be made directly to the Divisional Court rather than indirectly by way of defence in the criminal court.” (Italics in original)

143.  Lord Nicholls noted that Magistrates do often deal with tricky questions of law and that the suggested difficulties can often in practice be assuaged and, indeed, that contrary arguments (such as against introducing a judicial discretion capable of affecting criminal liability) exist:

“In respect of challenges which even on the narrowest view may be raised by way of defence, lay magistrates can be confronted with tricky questions of law. So far as there is a risk of inconsistent decisions, or a problem regarding parties, that also exists in those cases where the challenges may be raised as a defence in the criminal courts. Similarly with the risk of inadequate evidence: evidence may have to be called in the criminal court to establish, for instance, whether land to which a byelaw purports to extend is subject to rights of common and outside the authorised reach of the byelaw. Likewise, in those ultra vires cases which admittedly are within the purview of the criminal courts, the decision in the criminal court does not formally set aside the impugned order. And in those cases the protective time limits and discretions are not available. Indeed, as to this last point, it is highly questionable whether a judicial discretion to grant or withhold relief should have a significant role when a criminal consequence hangs upon the lawfulness or unlawfulness of the impugned order.”[106]

144.  The aforesaid discussion and all the authorities canvassed (except for the Ocean Technology case which is dealt in the Section which follows) concern non-constitutional collateral attacks. In my view, a constitutional challenge by way of defence requires a different approach. Such a challenge is not to be excluded simply as a matter of statutory construction.

G.  Constitutional challenges

G.1  Constitutional challenges and relevance

145.  As with collateral attacks, it is logically necessary for a constitutional challenge to bear on an essential ingredient of the offence charged so that if successful, it operates by way of defence. To that extent, the offence-creating provisions must be construed to identify the subject-matter of the challenge and its relevance to liability for the offence charged.

146.  This requirement was highlighted by the Court of Appeal in SJ v Ocean Technology Ltd & others.[107]  The respondents there had applied for a broadcasting licence with a view to operating a radio station but their application had been rejected by the Chief Executive in Council. They were charged with the statutory offence of broadcasting without a licence. They sought to argue by way of defence that the power given to the Chief Executive in Council to refuse a licence was an unconstitutional infringement of their freedom of expression because that power was not “prescribed by law” since it was “unfettered”. That argument was accepted by the Magistrate but was rejected by the Court of Appeal.

147.  It had correctly and inevitably been conceded by the respondents that “control of the airwaves by a ban on broadcasting without a licence was of itself a permissible fetter upon” freedom of expression so that no one has a right to a broadcasting licence.[108]  This led Stock JA (as his Lordship then was) to observe:

“Given that the requirement for a broadcasting licence is a permissible fetter on the freedom of expression, and that there is no right to a licence, it is difficult to see, in the context of the magistrate’s remit to determine the charges of establishing or otherwise operating means of telecommunications without a licence, and of the specific legislation under consideration, upon what basis it was relevant for him to determine whether the discretion of the Chief Executive in Council to grant or refuse a licence was prescribed by law.”[109]

148.  His Lordship therefore questioned the relevance of the challenge mounted and went on to hold as follows:

“A proper construction of ss 8 and 20 of the Ordinance is one that recognises that it must have been the legislature’s intention that the legality of a licensing decision or of an aspect of the licensing scheme at any given time was not a necessary ingredient of the offence. It would be as unrealistic and non-contextual to suggest that, as it would to contend that in enacting a provision that prohibited the driving of a motor vehicle without a licence, the legislature intended that it would be a defence to a charge of driving without a licence to show that, upon a driving test, the driving examiner ought not to have refused the examinee his full licence or to show that the criteria for granting driving licences were insufficiently precise to meet the test of prescription by law.

It must follow that it was the legislature’s intention that if an applicant for a broadcasting licence wishes to attack the statutory licensing system, or a licensing decision, he must do so once he has made an application and has received a response which might be impugned at law. In a prosecution for an offence under ss 8 and 20 of the Ordinance, it is not open to a defendant to raise by way of defence the legality of a licensing decision or of the licensing scheme. Any other construction would, in my opinion, be contrary to the clear policy of the legislative scheme as a whole.”[110]

149.  Stock JA emphasised that his holding did not affect the general availability of constitutional challenges but that a logical connection between the subject-matter of the challenge and the essential elements of the offence was needed:

“As Cheung J emphasises in the judgment which follows, none of this is to suggest that it is not open to a defendant to challenge, as a defence to a charge, the constitutionality of the offence-creating provision directed against him. To the contrary, it is always open to a defendant to do so as has been illustrated in a number of instances in this jurisdiction. It is merely to say that in this case the constitutionality of the offence did not depend on the validity of the licensing regime and it is in assuming that it did that the magistrate went wrong.”[111] (footnote omitted)

150.  Andrew Cheung J (as the Chief Justice then was) pointed out that various aspects of the statutory telecommunications regime were capable of constituting restrictions on the freedom of expression and might need justification, including the licensing requirement; a refusal of an application for a licence; and the creation of a criminal offence for broadcasting without a licence.[112] But his Lordship similarly stressed the need, in the context of a constitutional challenge by way of defence, for the subject-matter of the challenge logically to bear on whether criminal liability is established (such as by challenging the constitutionality of the offence itself):

“Therefore, in the prosecution of the offence, the accused may always challenge the constitutionality of the offence itself as being an unjustifiable restriction on his rights under art 27 of the Basic Law and art 16(2) of the Hong Kong Bill of Rights. But it does not follow that he can put in issue the constitutionality of the restriction represented by the licensing regime or that by the refusal of a licence (if one has been applied [for]). Whether he may do so depends entirely on whether, on the proper construction of the offence, its essential elements include the constitutional validity of the licensing regime and/or the refusal of a licence in question.

In other words, if, on its proper construction, the offence prohibits broadcasting etc in the absence of a [constitutionally] valid licence granted under a constitutionally valid licensing regime, the accused will be quite entitled to put the constitutionality of the licensing regime or the refusal of a licence in the particular case in issue. But not otherwise.”[113] (Italics in original)

151.  As appears from the passages cited above, whether the constitutional challenge engages an essential element of the offence making it relevant by way of defence, depends on the construction of the offence-creating provisions. That such relevance is in principle required is reflected in section 6(1) of the Hong Kong Bill of Rights Ordinance[114] which materially provides:

“(1) A court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.” (Italics supplied)

G.2  An essential element

152.  In the present case, the lawfulness of the CP’s prohibition order is in my view plainly an essential element of the offence charged and a necessary part of the prosecution’s case. As set out in Section C.1 above, the substantive offence under section 17A(3)(a) which Chow is alleged to have incited requires there to be an unauthorized assembly. By section 17A(2), a public meeting becomes an unauthorized assembly if it takes place in contravention of section 7. Section 7 is contravened if it is held without going through the process of notifying the CP and securing its non-prohibition by him. Thus, in a case like the present, a prohibition under section 9 qualifies a public assembly as an unauthorized assembly and is a necessary element of the offence created by section 17A(3)(a) and of the associated charge of incitement.

G.3  Constitutional challenges and statutory construction

153.  It should, however, be noted that the scope and purpose of the abovementioned exercise of construction is confined to establishing the relevance of the challenge as explained above.

154.  In my view, unlike in relation to non-constitutional collateral attacks, the question whether a constitutional challenge to an impugned order may be permitted by way of defence in criminal proceedings cannot be determined simply by construing the offence-creating provision and any related statutory material.   

155.  This is because constitutionally guaranteed rights and freedoms enjoy an entrenched status under the Basic Law under the following Articles (all italics supplied): 

(a)  Article 8 of the Basic Law (“BL8”) provides:

“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”

(b)  Turning to laws currently in force, BL18 states:

“The laws in force in the Hong Kong Special Administrative Region shall be this Law, the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and the laws enacted by the legislature of the Region.”

(c)  BL11 then relevantly states:

“In accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including ... the system for safeguarding the fundamental rights and freedoms of its residents, ... shall be based on the provisions of this Law.

No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.”

(d)  As discussed below, Chow relies on the constitutional right of peaceful assembly guaranteed by BOR17.[115]  That provision (among others) is given constitutional effect and entrenched by BL39 which materially states:

“The provisions of the International Covenant on Civil and Political Rights [“ICCPR”]... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region [as has been done by the Hong Kong Bill of Rights Ordinance (Cap 383) enacting inter alia BOR17].

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.”

156.  Accordingly, if, on their true construction, statutory provisions and administrative acts or orders issued thereunder are inconsistent with fundamental rights entrenched by the Basic Law, including the right of peaceful assembly, they must give way. They cannot derogate from or restrict those protected rights except insofar as such derogations or restrictions satisfy the well-established proportionality analysis referred to in the Section which follows.

G.4  Proportionality

157.  The general approach to constitutional challenges is well-established.[116] The starting-point is to identify the constitutional right relied on and to examine whether the impugned measure or act derogates from or restricts that right. If it does, and if it is not an absolute right,[117] one proceeds with a proportionality analysis asking whether the challenged act pursues a legitimate aim; whether the restriction is rationally connected to that aim; whether that restriction is no more than reasonably necessary to accomplish that aim (a matter related to the width of the margin of discretion to be afforded to the decision-maker in the particular case); and finally, whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the individual’s constitutionally protected right. This structured inquiry has been elaborated upon especially in the Hysan case[118] and is routinely employed.  It applies generally, including in relation to constitutional challenges mounted by way of defence in criminal proceedings.

H.  Availability of the challenges by way of defence

158.  The challenge sought to be mounted by Chow by way of defence may be viewed as involving a collateral attack or alternatively a constitutional challenge. In my view, on either basis, the application of the foregoing principles leads to the conclusion that it is open to Chow to raise such challenges by way of defence in the criminal proceedings.

H.1  Is a collateral attack available by way of defence?

159.  As a matter of statutory construction, in my view, it is open to Chow to mount a collateral attack by way of defence and it is not the statutory intent that a formally valid prohibition order suffices to found criminal liability under section 17A(3)(a) so that challenges are excluded.

160.  Starting with the strong presumption in favour of permitting a collateral attack, and noting that the validity of the CP’s prohibition is an essential element of the offence (as explained in Section G.2 above), there are two broad bases for concluding that as a matter of statutory construction, a collateral attack is available by way of defence.   

161.  The first emerges from the content of POO Part III. As we have seen, those provisions constrain the CP’s power to prohibit a public assembly: he must reasonably consider (which I construe to mean “he has to have reasonable grounds for considering”) that such prohibition is “necessary” in the specified interests (section 9(1)); and he may not exercise the power if the specified interests can be met by imposing appropriate conditions (section 9(4)). It is plainly intended that he must justify his decision to prohibit an assembly in accordance with the statutory constraints. Thus, section 9(2) requires him to serve notice of his prohibition order on the person giving notice of the intended meeting and the prohibition order must “state the ground or grounds on which the prohibition is considered to be necessary and the reasons for the [CP’s] opinion as to those grounds” (section 9(2)). Thus the CP is required to explain his decision in a manner enabling it to be scrutinised and, if necessary, challenged.

162.  That challenge may obviously be made on a section 16 appeal to the Appeal Board and it is also accepted by all that the order may be impugned on a judicial review. Such challenges occur, of course, as part of the decision process but, given the aforesaid strong presumption, given the clear intention requiring the CP to justify the prohibition, and given that the validity of the order is an essential element of the offence, construction of the offence-creating provision in the context of Part III of the POO inclines strongly against any contention that a formally valid prohibition order is intended to be sufficient and beyond challenge in subsequent criminal proceedings.

163.  The second broad basis for the aforesaid conclusion rests on the manifest intention that the statutory scheme should mirror and operate consistently with the constitutional guarantee of the right of peaceful assembly. This is indicated by the close resemblance of the wording of BOR17 and POO sections 9(1) and 9(4) pointed out in Section B above. Indeed, relevant BOR17 concepts have been expressly incorporated into the POO which are required to be interpreted in the same way as they are interpreted in the constitutional context. POO section 2(2) materially states:

“In this Ordinance the expressions public safety, the protection of public health and the protection of the rights and freedoms of others are interpreted in the same way as under the [ICCPR] as applied to Hong Kong”.

164.  In Leung Kwok Hung & Others v HKSAR (“LKH 2005”),[119] this Court held that the legislative intention of incorporating the constitutional scheme into the POO went considerably further. It was held that the reference to “necessary” in POO section 9(1) should be interpreted in the same way as “necessity” in BOR17, thereby importing the operative concept of proportionality into the POO provisions:

“Although the direction on interpretation in s.2(2) does not specifically cover the expression ‘necessary’ and the statutory test of necessity does not refer to the expression ‘in a democratic society’ found in art.21 of the ICCPR [enacted as BOR17], the clear legislative intent, evident from the incorporation of the ICCPR necessity requirement into the statute, is that the statutory necessity test should be interpreted and approached in the same way as the necessity requirement found in art.21.

As the ICCPR necessity requirement involves the application of a proportionality test, it follows that that test must also be applied in relation to the statutory necessity test. The Commissioner has a discretion to restrict the right of peaceful assembly, by objecting to or by imposing conditions on a notified public procession. In deciding whether and if so what restriction to impose in the exercise of his discretion, the Commissioner must consider: (1) whether a potential restriction is rationally connected with one or more of the statutory legitimate purposes; and (2) whether the potential restriction is no more than is necessary to accomplish the legitimate purpose in question.”

165.  This strongly supports the view that the legislative intention is for the POO to reflect the constitutional scheme, acknowledging that a ban on meetings by the CP is a restriction of the right of peaceful assembly which he must justify as a matter of proportionality. It is not the legislative intention that formal validity of such prohibition orders should suffice or that collateral attacks should be excluded.

H.2  Is a constitutional challenge available by way of defence?

166.  If the challenge is based on a constitutional right which is engaged because the prohibition order restricts that right, that challenge is in principle available, provided that it bears on an essential element of the offence and thus represents a relevant challenge by way of defence (as discussed in Sections G.1 an G.2 above).

167.  There is no question of the constitutional challenge being excluded simply on the basis that, as a matter of statutory construction, it was the legislative intention that a formally valid order is sufficient. If that were their true construction, such inconsistent statutory provisions would give way to the entrenched constitutional right save insofar as such inconsistency, involving a restriction on the constitutional right, could be justified on a proportionality analysis. Thus, in principle, provided that Chow’s constitutional challenge meets the relevance requirement, it is open to her by way of defence.

I.  Does Chow’s collateral attack succeed?

168.  Chow’s collateral attack involves the argument that found favour with the Judge, set out in Section C.3 above. Having (with respect rightly) concluded that it was open to Chow to mount a collateral attack, her Ladyship held that, in exercising his power to prohibit the June 4 meeting, the CP had failed to comply with section 9(4). If that holding was correct, it would have justified quashing the conviction since the meeting would not have been prohibited “under section 9” so that it would not have contravened section 7 and so would not have constituted an “unauthorized assembly” for the purposes of section 17A(3)(a).

169.  That decision rested on three propositions: First, that section 9(4) was properly construed as placing the CP under a positive duty proactively “seriously [to] initiate consideration on or propose” measures to enable the meeting to be held; secondly, that there were certain conditions that should “obviously” have been taken into account as a possible basis for allowing the meeting to be held; and thirdly, that the CP had failed proactively to consider and propose such measures.[120]  The Appeal Board’s determination was also held to suffer from the same deficiencies.[121]

170.  I respectfully disagree with her Ladyship’s conclusions. In the first place I am unable to agree that section 9(4) is properly construed as imposing a proactive duty of the kind suggested. That provision merely requires the CP to consider whether the specified interests can be met by appropriate conditions. It does not require him to take the initiative to devise and propose conditions that would enable the meeting to take place. Whereas one might expect the police to lay down conditions reflecting their normal duties and falling within their usual areas of competence, such as regarding traffic and crowd control or ensuring public order, it is unwarranted to construe section 9(4) as imposing the proactive obligation suggested. A more natural construction of section 9(4) is that it obliges the CP to give genuine and reasonable consideration to any pertinent conditions, especially any proposals suggested by the organizers, assessing their workability and likely effectiveness in the light of the organizers’ resources and capabilities.

171.  Secondly, I find it hard to accept that in the circumstances of the pandemic, the suggested conditions were “obviously” to be considered as potentially meeting the public health concerns. The risks and adequacy of counter-measures would plainly involve potentially difficult questions of medical and scientific judgment. And thirdly, it appears from the contents of the prohibition order and the Appeal Board’s decision[122] that on the evidence, the CP and the Appeal Board did in fact consider possible conditions, taking advice from the Department of Health, and concluded that contemplated conditions did not provide the necessary assurance, although there is no evidence whether the conditions said to have been “obvious” were mentioned or discussed in the decision process.

J.  Does Chow’s constitutional challenge succeed?

172.  In her defence, Chow also seeks to rely on the constitutional right of peaceful assembly under BL27 and BOR17. She contends that any persons who might have gone to Victoria Park to hold the June 4 vigil as a result of reading her posts and article would merely have been exercising their constitutionally protected right of peaceful assembly and would not have been acting unlawfully so that her “inciting” them to do so was equally not unlawful.

173.  BL27 materially provides:

“Hong Kong residents shall have freedom of speech, …; freedom …, of assembly, of procession and of demonstration; …”

174.  BOR17 is set out here again for convenience. It provides:

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

175.  The prohibition against holding the June 4 meeting was plainly a restriction on the right of peaceful assembly. The next step in the proportionality analysis is therefore to ask whether that restriction pursues a legitimate aim. As this Court held in LKH 2005:[123]

“... the legitimate purposes for restriction of this right have been set out in the relevant constitutional text. It must be emphasised that the legitimate purposes specified in art. 21 of the ICCPR [ie BOR17] are the only legitimate purposes. This list is exhaustive. There cannot be a restriction for any other purpose.”

176.  Thus, in asking whether the CP’s prohibition pursues a legitimate aim, one has to ask whether it pursues one of the aims listed in BOR17 and, taking it further, whether it is rationally connected to achieving the relevant aim. On its face, the prohibition order states as its aim the protection of public health, which is a matter coming within the exhaustive BOR17 list. The banning of a mass public gathering to prevent the spread of the Covid-19 virus in the community in the circumstances of the prevailing pandemic is plainly rationally connected with that objective.

177.  The main controversy involves Chow’s argument which replicates that discussed above in the collateral attack context, namely, that the prohibition was disproportionate and unlawful in that (i) the CP was under a positive duty to propose reasonable and appropriate measures to enable lawful assemblies to take place peacefully; (ii) that by virtue of POO section 9(4), this translated into a duty not to prohibit a meeting without having taken the initiative to propose such conditions; and (iii) that the CP failed in this duty thereby rendering the prohibition disproportionate and invalid.

178.  The alleged positive duty on the CP is thus central to Chow’s argument. It is based on the decision of this Court in LKH 2005, where it was held that the police have a positive duty to take reasonable and appropriate measures to enable lawful assemblies to take place peacefully. However, the Court also emphasised that “the Government cannot guarantee that lawful assemblies will proceed peacefully and it has a wide discretion in the choice of the measures to be used. What are reasonable and appropriate measures must depend on all the circumstances in the particular case.”[124] Thus the positive duty does not imply that the police must devise a way to ensure that the assembly can take place. If (and consistently with section 9(4)) the CP gives genuine consideration to whether the specified interests can be met by the imposition of certain conditions but reasonably decides that this cannot be achieved, he is not required either by section 9(4) or the requirement of proportionality to refrain from prohibiting the assembly. Indeed, as noted above, the positive duty should generally be understood to relate to the normal powers and duties of the police in the context of public meetings, processions and gatherings, such as in relation to traffic arrangements, crowd control and the preservation of order, including dealing with counter-demonstrations and the like. It does not import a duty of the type advocated on Chow’s behalf.

179.  It was primarily for the organizers who knew the extent of their own resources and capabilities, to put forward satisfactory arrangements to justify the holding of the mass public assembly notwithstanding the undoubtedly grave risks to public health and safety then existing. It was up to them to identify realistic measures and to persuade the CP that they had the ability to enforce them effectively. As noted above, with respect to the learned Judge, it is hard to see why it should have been “obvious” that the conditions suggested at the hearing of the appeal were a potential basis for permitting the assembly to be held.  Bearing in mind that some 40,000 to 60,000 participants were expected to gather for some hours, it is perfectly understandable that the CP reasonably failed to be convinced that the organizers could effectively ensure that such conditions would be complied with and that they would provide an acceptable level of safety in the circumstances of the prevalent pandemic. The CP had a wide margin of discretion.  The prohibition was, in my opinion, plainly a proportionate and legitimate measure.

180.  It is also my view that the aforesaid considerations meet the requirements of the 4^th step in the proportionality analysis referred to in the Hysan case[125] regarding a reasonable balance between the societal benefits of the restriction and the inroads made into the individual’s constitutionally protected right.

181.  I am thereof respectfully unable to agree with the Judge’s conclusions and would hold that the respondent’s challenge, whether viewed as a collateral attack or as a constitutional challenge, fails on the basis that the CP’s decision to prohibit the June 4^th assembly was proportionate and lawful.

K.  Burden of proof

182.  Barnes J, correctly held that the prosecution bore the legal burden of proving the legality of the prohibition order.[126]  That proposition may be thought to be unsurprising since the validity of the prohibition order is an essential element[127] of the offence. One would thus expect the burden to be on the prosecution to prove every necessary ingredient. Of course, the challenge, whether by way of collateral attack or constitutional challenge, may involve a question of law, such as whether a given act or order was ultra vires or what the true construction of a relevant provision was. Such a question is determined by the court as a legal question rather than a matter involving the burden of proof. If the challenge involves questions of fact, such facts may be undisputed, involving for instance, the contents of relevant documents. But if proof of extraneous facts is needed, in line with general principles, the accused would normally be held to bear an evidential burden to raise the factual issue with the prosecution bearing the legal burden of proving the offence charged.

183.  The issue of burden of proof was not argued at the hearing. However, it is mentioned here because in Boddington,[128] Lord Irvine LC stated: “The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid ...”. His Lordship thus placed the legal burden – to be discharged on the balance of probabilities – on an accused who wished to mount a collateral attack.

184.  Is that approach applicable in the present case? While I would not definitively shut out a contrary argument since the point was not canvassed at the hearing, my answer for present purposes is “No”.

185.  Boddington was a byelaws case. As Lord Hoffmann pointed out in Wicks,[129] this involved an “ancient jurisdiction” (which he upheld, approving R v Reading Crown Court, Ex parte Hutchinson[130]) whereby “defendants prosecuted for breaches of local byelaws have always in the past been allowed to challenge their vires without discrimination as to the grounds upon which they were doing so.”

186.  It was in that context that the accused’s legal burden of establishing the invalidity of the impugned byelaw was asserted. This was explained by the English Divisional Court in DPP v Bugg,[131] where the respondent was charged with contravening a byelaw and contended that it was invalid. The justices found that the prosecutor had not proved beyond reasonable doubt that the byelaws were valid in all necessary respects and dismissed the case. However, the prosecutor’s appeal was allowed and the case remitted with a direction to convict, the Divisional Court explaining that once proved, byelaws are to be presumed to be valid unless and until the defendant discharges the onus upon him of showing that they are invalid. That was endorsed by Lloyd LJ in ex p Hutchinson,[132] stating that the justices in Bugg’s case were “clearly wrong”.

187.  While in Wicks,[133]Lord Hoffmann did not explore the question, in holding that the availability of a collateral attack depended on statutory construction, his Lordship might be taken also to have been suggesting that, as a matter of statutory construction, the burden may rest on either the prosecution or the defence. He stated:

“The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is.”

188.  Since his Lordship was not seeking to modify the “ancient jurisdiction” of the justices, and in the light of the subsequent decision of the House of Lords in Boddington, it would seem that the better view of the English jurisprudence is that the legal burden rests on a defendant only in the special class of case involving a challenge the vires of a byelaw.

189.  Those byelaw cases have no application in the present appeal. We are not concerned with a byelaw or other subsidiary legislation that is prima facie valid. We are concerned with the section 17A(3)(a) offence of which a necessary ingredient is a valid prohibition order issued in accordance with the provisions of Part III of the POO.  Those are provisions which plainly require the prohibition to be justified by the CP. Thus, as discussed above, on the true construction of the offence-creating provisions, in criminal proceedings an impugned order is subject to a collateral attack, with the prosecution ultimately bearing the onus of proving every essential element of the offence. This is a fortiori the case where the prohibition order is subjected to a constitutional challenge. The restriction on the right of peaceful assembly must be justified by the person contending that the restriction is proportionate and lawful. Thus it is the CP in the decision process and the prosecution in subsequent criminal proceedings who bear the legal burden, with the accused, in so far as relevant, bearing no more than an evidential burden.

L.  Summary

190.  Where, in cases like the present, the accused seeks to challenge an impugned order by way of defence in criminal proceedings, the challenge cannot properly be excluded on the ground that the accused ought to have brought proceedings to challenge that order in a different forum in the context of an earlier separate process to which he or she was not a party. The availability of the challenge must be determined within the context of the criminal proceedings themselves. (Section D)

191.  The position is different in “same person” cases which is a category inapplicable in the present case. (Section E)

192.  A challenge may involve a non-constitutional collateral attack or a constitutional challenge (or both). (Section A).

193.  A non-constitutional collateral attack involves an allegation that the impugned order was made in contravention of statutory requirements or was susceptible to public law objections. (Section F)  Whether such an attack is available by way of criminal defence depends on the construction of the applicable statutory provisions, asking whether the legislative intent is that a formally valid order suffices for criminal liability or whether such orders may be impugned. (Section F.1) The starting-point in such a construction exercise is a strong presumption in favour of allowing the accused to mount a criminal defence challenging the relevant order’s validity on any grounds. (Section F.2)

194.  It is necessary for the collateral attack to be directed at what, as a matter of construction, is an essential element of the offence so that if successful, it would constitute a defence to the prosecution. The exercise of construction also seeks to determine where the balance lies between the aforesaid presumption and considerations militating against having the issues adjudicated by a criminal court. (Section F.2)

195.  An accused cannot be precluded from raising a constitutional challenge simply on the basis of statutory construction. This is because constitutional rights are entrenched by the Basic Law and any statutory provisions or administrative orders made thereunder which are inconsistent with those protected rights must give way, save insofar as the restrictions on those rights pass the proportionality test. (Section G.3)

196.  The proportionality test extends to constitutional challenges made by way of defence in criminal proceedings. That test involves examining the legitimacy and rational connection between the purported restriction and the constitutional right concerned and the proportionality of that restriction, bearing in mind the decision-maker’s margin of discretion. (Section G.4)

197.  As with non-constitutional collateral attacks, in a constitutional challenge by way of defence, the subject-matter impugned as unconstitutional must involve an essential element of the offence charged and thus bear directly on the defence. If, as a matter of construction, a successful challenge does not have that effect, it is excluded since it is not relevant by way of defence. (Section G.1)

198.  The lawfulness of the CP’s prohibition of the intended peaceful assembly was an essential element of the section 17A(3)(a) offence. (Section G.2)

199.  It was open to Chow to raise in the alternative, a collateral attack and a constitutional challenge by way of defence in the criminal proceedings. (Sections H.1 and H.2)

200.  However, the collateral attack fails on the true construction of section 9(4). The evidence also shows that the CP and the Appeal Board gave due consideration to conditions that might be imposed. (Section I)

201.  The constitutional challenge fails since the prohibition order was a proportionate measure and represented a fair balance between the restriction on the right of peaceful assembly and the societal benefits of the prohibition. (Section J)

202.  Where such challenges are raised, the prosecution bears the legal burden of proving the validity of the prohibition order as an essential element of the offence charged. (Section K)

M.  A difference of approach

203.  It will be apparent that the approach set out above differs significantly from that adopted by the Chief Justice. It is with the utmost respect that I draw attention to some of those differences.

204.  The Chief Justice holds that the first certified question should be answered in the negative so that it is not open to a defendant in a case like the present to raise by way of defence a challenge to the legality of the prohibition. That conclusion is reached as a matter of statutory construction of the provisions forming the POO’s framework for the control of public assemblies in general, and sections 7, 9, 17A(2), and 17A(3)(a) in particular. It is held that the legislative intent is for it to be sufficient for the prosecution to prove the existence of a formally valid prohibition order which has not been set aside on appeal or quashed on a judicial review as the basis for establishing the section 17A(3)(a) offence and accordingly for proving an incitement of that offence. No challenge to such formal validity is to be permitted in the criminal proceedings, whether by way of a collateral attack or a constitutional challenge.

205.  The reasoning in this judgment differs by holding that both as a matter of statutory construction and on constitutional principles, it was open to Chow to mount a collateral attack or constitutional challenge, each of those challenges involving a different legal approach.

M.1  Collateral attack

206.  In this judgment, the general approach to the question whether a collateral attack is available differs little from that adopted by the Chief Justice: the availability of such a challenge is a matter of statutory construction where the object is to determine whether the statutory intent is to preclude raising a collateral attack by way of defence, with a strong presumption in favour of allowing the defence to be raised; asking whether it relevantly concerns an essential element of the offence and balancing practical considerations against that presumption. I would respectfully agree that if, on the proper construction of the relevant statute, it was intended to preclude a non-constitutional collateral attack in criminal proceedings, that conclusion decides the matter (leaving aside constitutional challenges).

207.  However, for the reasons given in Section H.1 above, it is my view that on the true construction of the relevant provisions of the POO, especially those constraining the CP’s power to prohibit meetings and the requirement that he justify his action, the legislative intention was for the CP’s prohibition order to be subject to challenge, both within the decision process and in subsequent criminal proceedings and not for a formally valid order to be sufficient.

208.  I would also suggest, with great respect, that many of the provisions in Part III of the POO for controlling public meetings, etc, relied on in the exercise of statutory construction in the Chief Justice’s judgment are relevant only to the decision process, and ought not to be elided with issues arising in the subsequent criminal proceedings (this not being a “same person” case).

209.  Thus, provisions laying down strict time limits for notification and the CP’s decision and the need for expedition on the part of the Appeal Board are directed at arriving at a decision in adequate time for everyone to know whether the assembly is prohibited. They do not seem to me to bear on the criminal proceedings four months later. The same applies to the provisions setting out the limits of the CP’s power of prohibition, involving a balance between public order considerations and respecting the right of peaceful assembly, which are intended to govern the CP’s decision whether or not to prohibit the notified meeting. Likewise, providing for an appeal to an Appeal Board whose composition includes independent and legally competent members is aimed at promoting fairness in determining whether the intended meeting ought to be prohibited as part of the decision process. As indicated above, insofar as these provisions are relevant to the criminal proceedings, they support the view that a collateral attack is permitted.

210.  When POO section 44A(7) provides that “The determination of an appeal by the Appeal Board shall be final”, it defines the end of the statutory decision process. It is concerned only with the finality of the appeal determined by the Appeal Board, an administrative process, and does not purport to exclude challenges to the validity of a prohibition in any extraneous proceedings, much less in criminal proceedings brought against a person who did not take part in the decision process or the appeal. Everyone accepts that section 44A(7)’s “finality” does not preclude post-appeal judicial review proceedings. Neither does it purport to exclude a post-appeal collateral attack or constitutional challenge in subsequent criminal proceedings.

211.  In my view, it is not possible to extrapolate from the abovementioned provisions the conclusion that, as a matter of construction, the statutory intent is to deprive a person who was not party to the decision process of the opportunity to challenge the validity of the prohibition by way of defence in subsequent criminal proceedings. On the contrary, for the reasons set out in Section H.1 above, it is my respectful view that the statutory intent is to accommodate a collateral attack and not to deem a formally valid order sufficient.

212.  Of course such a challenge may fail. But that will not necessarily be the case. The accused may raise issues not mentioned by the organizers before the Appeal Board or in judicial review proceedings; or the criminal court may be more receptive to submissions which may be more cogently made by the accused in the criminal context. If such arguments turn out to be without merit, they will be dismissed, but the accused should not be prevented from raising such issues on the basis of reasons which elide considerations properly relevant only to the decision process.

M.2  Constitutional challenges

213.  A major difference in approach concerns constitutional challenges. For the reasons explained in Section G.3, I am respectfully unable to agree that the exercise of statutory construction is capable of excluding a constitutional challenge mounted by way of criminal defence. A constitutional right is entrenched against inconsistent laws. Assuming that the court is satisfied that the constitutional right relied on is engaged by a measure restricting that right and that the constitutional challenge is relevant to the outcome of the prosecution, it is in my view not open to the court to hold that because it construes the statute as requiring proof only of a formally valid order to establish the offence, the order cannot be impugned as unconstitutional.  

214.  If the order is properly challenged, the court seized of the prosecution has to resolve that challenge. If it is a challenge on constitutional grounds, it has to conduct a proportionality analysis as indicated in Section G.4 above. This is an exercise which should not be regarded as beyond the capabilities of a magistrate. That magistrates can and should resolve such issues (obviously subject to appeal) has generally been accepted, as it was by this Court in Secretary for Justice v Yau Yuk Lung.[134]

215.  It is argued that permitting the defence to be made in the criminal proceedings may create uncertainty and undermine the legitimacy of the CP’s and Appeal Board’s decisions and also create the risk of inconsistency in the decisions of various magistrates. With great respect, such concerns should not be over-stated.

216.  The decision process, following the procedures prescribed in the POO for a timely and reasoned decision to be reached, is designed to avoid any uncertainty. The outcome of the process would be publicised to let everyone know whether going ahead with the meeting would or would not be an offence. If a prohibition order is issued, it takes effect and is acted upon by the police and the public at large. If any persons decide to hold the meeting anyway, they may expect to be prosecuted. In the present case, no meeting took place. Whether or not an accused succeeds in challenging the validity of that order for the purposes of her own defence in criminal proceedings some months later does not retrospectively create uncertainty.

217.  As to legitimacy, if the constitutional challenge fails, no question of legitimacy of the earlier decision process arises. But if it turns out that the impugned order was unconstitutional, a decision to that effect in the criminal proceedings promotes the rule of law and should not be avoided on the footing that the putative legitimacy of the defective order should somehow be preserved.

218.  Inconsistent decisions among different courts inevitably arise from time to time. This is generally resolved by an appeal to a higher court whose decision will be binding. This was recognised in Secretary for Justice v Yau Yuk Lung,[135] which concerned a challenge to the constitutionality of an offence[136] on the ground that it was discriminatory and infringed the constitutional right to equality. That was a challenge to the offence itself but the same applies to constitutional challenges to administrative orders made pursuant to statutory powers which are not themselves subject to constitutional challenge.

219.  Another argument is that a magistrate who encounters a constitutional challenge might adjourn the case to enable the accused to apply for judicial review of the impugned order. With respect, I find it hard to see the virtue of that approach. The accused is only concerned with conducting his or her defence and is not concerned with “re-opening” the decision process or quashing the impugned order which is water long under the bridge. It appears wrong in principle for the court to place a burden on the accused to initiate separate proceedings in a different court rather than to be permitted to raise a relevant matter by way of defence in criminal proceedings brought against her. Moreover, as Lord Steyn pointed out in Boddington v British Transport Police,[137] an accused may be faced with significant difficulties if required to bring judicial review proceedings:

“... The defendant may, however, be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the Divisional Court may be restricted. He may be denied a remedy on a discretionary basis. The possibility of judicial review will, therefore, in no way compensate him for the loss of the right to defend himself by a defensive challenge to the byelaw in cases where the invalidity of the byelaw might afford him with a defence to the charge.” (Italics in original)

220.  As with collateral attacks, constitutional challenges may obviously lack merit, in which case they can be rejected. It is a daily occurrence that thoroughly bad points are raised and rapidly disposed of. This is likely to be true of constitutional challenges mounted in “same person” cases, especially where the same issues have already been adjudicated upon by a higher court. If such a constitutional challenge is made where an available statutory appeal procedure has not been followed by the person against whom the order was directed, that omission may well have an obvious effect on proportionality. The accused may well have difficulty arguing that the impugned decision to issue a prohibition order involved a disproportionate restriction of a constitutional right when he or she ignored a statutory safeguard forming part of the statutory scheme relating to the making of that decision.

221.  The court’s appropriate response in such cases, in my view, should generally be for the challenge to be dealt with rather than excluded as inadmissible.

Mr Justice Fok PJ and Mr Justice Gleeson NPJ:

222.  We have had the benefit of reading in draft the judgments of the Chief Justice, Mr Justice Ribeiro PJ and Mr Justice Lam PJ in this matter. Each of their judgments arrive at the same conclusion that the appellant’s appeal must be allowed. With that conclusion, we agree. However, since the respective reasons of the Chief Justice and Mr Justice Lam PJ, on the one hand, and Mr Justice Ribeiro PJ, on the other, for arriving at this conclusion are quite different, it is necessary to state briefly why we support that conclusion on the basis of the reasons set out in the judgment of Mr Justice Ribeiro PJ, with which we respectfully agree.

223.  The fundamental difference in the reasoning concerns the elements of the underlying offence of which the respondent was charged with inciting others to commit, namely an offence under section 17A(3)(a) of the Public Order Ordinance (Cap.245) (“the POO”). Under that provision, any person who, without lawful authority or reasonable excuse, knowingly takes or continues to take part in or forms or continues to form part of an unauthorised assembly commits the offence. The unauthorised assembly is specifically defined as one which takes place in contravention of section 7 or 13 of the POO.[138]

224.  Under section 7, a public meeting may take place if, but only if, (a) the Commissioner of Police has been notified under section 8 of the intention to hold the meeting, and (b) the holding of the meeting has not been prohibited under section 9. This appeal concerns a public meeting that was prohibited under section 9. Section 9 provides for the power under which the Commissioner of Police may prohibit a notified public meeting. He may do so “where he reasonably considers such prohibition to be necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others” (section 9(1)). However, section 9(4) enjoins him from exercising the power to prohibit the holding of a public meeting “in any case where he reasonably considers that the interests of national security or public safety, public order or the protection of the rights and freedoms of others could be met by the imposition of conditions under section 11(2).”

225.  It is in respect of section 9(4) that the fundamental difference between the judgments lies. Does the offence under section 17A(3)(a) require the prosecution to prove the lawfulness of the prohibition issued in respect of the public meeting in question (as Mr Justice Ribeiro PJ holds) or is it sufficient for the prosecution merely to prove the formal validity of a prohibition notice (as the Chief Justice and Mr Justice Lam PJ hold)? The answer to that question determines whether it is open to a defendant to a charge under section 17A(3)(a) to raise by way of defence a collateral challenge to the lawfulness of the prohibition, including a constitutional challenge that the prohibition is a disproportionate restriction of the defendant’s constitutional freedom of assembly. It is not controversial that the answer to that question is a matter of statutory construction.

226.  In this regard, we agree with Mr Justice Ribeiro PJ that, as a matter of statutory construction, a lawful prohibition of the public meeting is an essential element of the offence under section 17A(3)(a).

227.  The starting point of the construction exercise is the fundamental right in Article 27 of the Basic Law (“BL27”) that “Hong Kong residents shall have freedom of … assembly, of procession and of demonstration”. That right is also conferred by Article 17 of the Hong Kong Bill of Rights (“BOR17”), which provides that:

“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.”

228.  BOR17 is given constitutional effect and entrenched by Article 39 of the Basic Law. As such, and by virtue of Articles 8, 11 and 18 of the Basic Law, no law of Hong Kong may contravene the provisions of BOR17. Similarly, by Article 39 of the Basic Law, restrictions on the right under BL27 may not contravene the International Covenant on Civil and Political Rights (“ICCPR”) as applied to Hong Kong.

229.  The POO was substantially amended in 1995, having regard to the Hong Kong Bill of Rights Ordinance, enacted in 1991, and the character of the latter can clearly be seen in various parts of the POO. Thus, section 2(2) expressly links the interpretation of the expressions “public safety, the protection of public health and the protection of rights and freedoms of others” in the POO to their interpretation in the ICCPR as applied to Hong Kong, i.e. the rights entrenched in the Basic Law via Article 39 and including BOR17. Sections 9(1) and (4) both require consideration of a decision to prohibit a public meeting to take into account “the interests of national security or public safety, public order or the protection of the rights and freedoms of others”, thereby reflecting the provisions of BOR17. Similarly, section 11(2) limits the conditions the Commissioner of Police may impose in respect of a public meeting to those he reasonably considers “necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others”, again reflecting BOR17.

230.  The need to interpret the provisions of BOR17 and sections 9(1) and (4) and 11(2) consistently is reinforced by the Court of Final Appeal’s decision in Leung Kwok Hung & Others v HKSAR.[139]

231.  In view of the nature and importance of the rights under BL27 and BOR17, other than in what is referred to in Mr Justice Ribeiro PJ’s judgment as a “same person” case, we do not think the existence of the appeal mechanism under section 16 and Part IX of the POO requires that section 9(4) be read as only requiring formal validity of a prohibition notice for the purposes of a prosecution under section 17A(3)(a). Neither the appeal mechanism nor the constitution of the Appeal Board nor the finality of a determination by the Appeal Board requires, in our view, a conclusion that the prosecution need only prove the formal validity of a prohibition notice for the purposes of a prosecution under section 17A(3)(a).

232.  On the contrary, since it is accepted that the requirement of reasonableness in section 9(4) imports an objective standard, the test of what is “necessary” in sections 9(1) and 11(2) should correspond with that which applies in respect of BOR17, namely one which satisfies the test of proportionality as set out in this Court’s judgment in Hysan Development Co Ltd and Others v Town Planning Board.[140]

233.  As to section 44A(7), the determination of the Appeal Board is final in the sense that it is the end of an administrative process, but the provision does not have the effect that the prohibition, if upheld by the Appeal Board, is deemed to be lawful. Indeed, it is common ground that it could be challenged on judicial review.

234.  For these brief reasons, which in substance reflect those of Mr Justice Ribeiro PJ, we differ, with respect, from the conclusion of the Chief Justice that the lawfulness of the prohibition is not an essential element of the offence in question and that any such collateral challenge could and should only be raised by way of judicial review proceedings separate to and outside the ambit of the criminal prosecution. The respondent was entitled to raise a collateral attack to the lawfulness of the prohibition in question, including a constitutional challenge, by way of defence to the charge she was facing in the criminal proceedings.

235.  Turning to the respondent’s defence to the charge of the offence, it was argued before the Magistrate and Judge below that the prohibition was not lawful because (1) it was issued for an improper purpose, (2) it was ultra vires (i.e. made without jurisdiction) since there was no power to prohibit a public meeting on public health grounds, and (3) the prohibition was not a reasonable restriction on the respondent’s right of assembly, i.e. was not proportionate.

236.  The Judge decided in favour of the respondent, holding that the Commissioner of Police had failed to comply with section 9(4).

237.  For the reasons fully developed by Mr Justice Ribeiro PJ in Sections I and J of his judgment, we agree that the respondent’s collateral attacks on the prohibition and her constitutional challenge based on BL27 and BOR17 are without merit and must be rejected. Accordingly, her challenge to the lawfulness of the prohibition in respect of the meeting which she was held to have incited others to attend fails and she was rightly convicted by the Magistrate of the offence charged.

238.  We should add that we also agree with the discussion and conclusion in respect of the burden of proof in Section K of Mr Justice Ribeiro PJ’s judgment.

239.  We would therefore allow the appellant’s appeal and remit the respondent’s appeal against sentence to the Judge for determination.

Mr Justice Lam PJ:

240.  I have had the advantage of reading in draft the judgments of the Chief Justice and Ribeiro PJ. On Question (1), the Chief Justice holds that by the design of the legislative regime under the Public Order Ordinance, Cap. 245 (“POO”) proportionality of the prohibition is not a relevant issue for the criminal court to decide. On the other hand, Ribeiro PJ is of the view that a defendant is entitled to raise that issue as a defence in the criminal proceedings.

241.  Further, applying the proportionality test under Question (2), Ribeiro PJ concluded that the prohibition in question was proportionate and the judge erred in holding otherwise.

242.  On either view, the appeal should be allowed and the conviction restored. The appeal against sentence should be remitted for determination. I concur with these outcomes in the appeal.

243.  On the divergence between the Chief Justice and Ribeiro PJ, I respectfully agree with the Chief Justice on Question (1). Even though such agreement would render Question (2) otiose, I also agree with Ribeiro PJ that the judge erred in holding that the prohibition failed to satisfy section 9(4) of the POO. I also agree that even assuming that there is scope for this Court to conduct a Hysan proportionality assessment[141], the prohibition should be upheld.   

244.  Whilst freedom of peaceful assembly is a fundamental right protected under article 27 of the Basic Law (“BL 27”) and article 17 of the Hong Kong Bill of Rights (“HKBOR 17”), it is subject to proportionate restrictions prescribed by law which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

245.  In Leung Kwok Hung v HKSAR[142], this Court examined the statutory regime regarding unauthorised assembly under the POO and held that it is a proportionate restriction of the freedom of assembly in BL 27 and HKBOR 17.

246.  In that case, it was accepted that the notification requirement is proportionate and justified. The challenge by the appellants focused on the Commissioner of Police’s discretion to object to a notified public procession and his discretion to prohibit or to impose conditions under section 9 of the POO[143]. The Court took account of the appeal mechanism and the availability of judicial review in coming to the conclusion that the restriction imposed by such discretion (including a discretion to prohibit) satisfied the proportionality test[144].

247.  This Court held that the Commissioner has to apply the proportionality test in the exercise of his discretion to restrict the right of peaceful assembly[145]. In the event of a judicial review brought to challenge the decision of the Commissioner or the Appeal Board[146], the Court would have to consider whether the Board has properly applied the proportionality test[147].

248.  Hence, the proportionality of a decision to object to the holding of a notified meeting could be challenged through judicial review notwithstanding that it is stipulated under section 44A(7) of the POO that the determination by the Appeal Board is “final”.

249.  The POO regime designated the Commissioner to be the primary decision maker in determining whether there should be objection to the holding of a public meeting involving large numbers of participants (as provided for under section 7(2)). Such a legislative choice is not surprising since the police has to work with whoever organising a public meeting of such a scale to maintain public order and public safety.

250.  The POO also provides that the decision of the Commissioner is subject to challenge by way of appeal to the Appeal Board. The legislature further deems it appropriate to provide that the determination of the Appeal Board shall be final. In accordance with the long established approach in public law, such finality leaves the avenue of judicial review open. Subject to that, there could not be any challenges to the finality by other avenue in other legal proceedings. In the present appeal, the Respondent accepted that the courts in taking up a supervisory role should accord an appropriate margin of appreciation to the police and the Appeal Board[148].

251.  As explained by the Chief Justice, finality of the determination serves the important objective of bringing certainties on the regulation of a proposed public meeting under the POO regime. Since the purpose of the creation of the offence of unauthorised assembly POO is to prevent public disorder from arising, certainty of the legality of a public meeting is important to members of the public who may take part in the meeting and law enforcement officers who are duty bound to enforce a prohibition. In this connection, I echoed the observations of L’Heureux-Dubé J cited by the Chief Justice at [34] of his judgment. In the same judgment, Her Honour succinctly summarised the issue for the criminal court as follows:

“In summary, the question whether a penal court may determine the validity of an administrative order on a collateral basis depends on the statute under which the order was made and must be answered in light of the legislature’s intention as to the appropriate forum. In doing this, it must be presumed that the legislature did not intend to deprive a person to whom an order is directed of an opportunity to assert his or her rights.”[149]

252.  With great respect, I prefer this approach to asking if the validity of an administrative order constitutes an essential ingredient of the offence[150]. The difference may merely be a matter of emphasis. If the relevant statutory provisions are construed in its proper context paying due regard to the object and purpose of the legislation, either approach should yield the same result. However, the approach of L’Heureux-Dubé J has the advantage of focusing precisely on the question that the court has to resolve in terms of identifying the legislative intent on forum. The disadvantage of focusing on the essential ingredients of the offence is that one may fall into the temptation of construing the offence creating provision without paying sufficient regards to the other provisions relevant to legislative intent on forum.

253.  In the present context, the most relevant provision reflecting the legislative intent on forum is section 44A(7). It reads:

“The determination of an appeal by the Appeal Board shall be final.”

254.  It is necessary to construe what finality provided under that subsection means in light of the overall statutory context.

255.  On the other hand, if one were to follow the essential ingredient approach, one would naturally start from sections 7 and 8 of the POO. Since the purpose of the exercise is to discover the legislative intent on forum, in deciding whether the prohibition is “essential” one must give due weight to section 44A(7).  

The statutory context in which section 44A(7) operates

256.  In this section, I shall set out my view on the proper construction of the POO and the effect of section 44A(7) as a matter of statutory construction. In the next section, I shall turn to a discussion on constitutional challenge.

257.  An organiser of a public meeting exercises his freedom of assembly and such freedom is restricted by the POO in a proportionate manner. If a meeting is held with proper safeguards for public order and safety as provided under the POO, participants in the meeting also exercise their freedom of assembly. Such freedom of the participants is only lawfully exercisable when a public meeting is duly held in accordance with the POO. The participation in any other form of public meeting would be taking part in an unauthorised assembly. These are the effects of the POO regime on the regulation of public meetings which this Court held to be constitutionally valid in Leung Kwok Hung v HKSAR[151].  

258.  As we shall see, the design of the POO regime focuses on the organiser at the pre-meeting stage and there is good reason for such design. However, a decision by the Commissioner to prohibit the holding of a meeting could have bearings on subsequent stages if the organiser persisted in holding the meeting notwithstanding the prohibition.

259.  The basic premise of Ribeiro PJ’s analysis is the segregation of the finality of a prohibition in what His Lordship called the statutory decision process (determining whether a notified meeting should be prohibited) from subsequent criminal proceedings brought against persons other than the organiser under section 17A of the POO. With the greatest respect, I cannot agree with such segregation.

A1.  No demarcation of finality under Section 44A(7) from criminal proceedings

260.  I cannot discern from the text and the object and purposes of the POO a legislative intent to draw a distinction in respect of the finality of a prohibition between the statutory decision process and the criminal proceedings. The relevant offences under section 17A of the POO were created to provide criminal sanctions for acts and conducts in defiance of the regulation regime in POO of which a prohibition forms one component. Sections 17(1)(a), (3), (4), (5) and (6) conferred powers on police officers to disperse a meeting which takes place in contravention of section 7 and to bar access to a public place to prevent such public meeting from taking place. Such powers, insofar as they are exercised in respect of a meeting subject to a prohibition, operated on the premise that the prohibition is valid. Likewise, when a police officer arrested a person for participating in such unauthorised assembly or for other section 17A offences committed at such unauthorised assembly, he or she would be doing so on the premise of a valid prohibition.

261.  The regime of the POO also includes a prohibition against advertising or publicizing an unauthorised meeting, including a prohibited meeting. As a pre-emptive measure to prohibit the notified meeting from being held, section 17A(1)(d)(iii) imposes restriction on announcement or advertisement against all persons, including a person who is unrelated to the organiser who had given the notice leading to the prohibition. The relevant part of the subsection reads:

“Any person who makes any announcement or publishes any advertisement or notice …advertises or publicizes a public meeting which is prohibited under section 9 and which prohibition has not been reversed on appeal commits an offence …” (my emphasis)

262.  The highlighted part of this subsection clearly shows that the finality of a prohibition shall continue to have effect after the statutory decision process.    

263.  Given the purpose for which these offences were created, the legislature could not have intended that a prohibition is only “final” (meaning that it could not be challenged in any proceedings other than a challenge brought by way of judicial review) for the statutory decision process but not for subsequent criminal proceedings buttressing the effectiveness of the prohibition. Confining the effect of section 44A(7) to the statutory decision process would strip the provision of any practical effect. Such construction cannot be sustained if section 44A(7) is to take effect coherently with the other sections in the POO in regulating public meetings.

A2.  The essential role of organiser in the POO regime 

264.  Some importance is attached to the lack of standing of any person other than the organiser to bring an appeal against a prohibition to the Appeal Board. Though it is true that section 16(1) of the POO only provides an avenue of appeal for the organiser, one must have regard to the role placed upon an organiser in the POO regulatory regime in order to understand the statutory design. In the light of such statutory design, the lack of standing of other persons to mount an appeal cannot be a sufficient reason for holding that the finality under section 44A(7) should only be confined to the organiser. This is particularly so in cases where the organiser abandons the intention to hold the notified meeting after the prohibition.

265.  The POO restrictions are only placed upon public meeting of specified scale as set out in section 7(2) and of a nature which does not come within the exclusion in the definition of “meeting” in section 2. The definition in section 2 provides as follows:

“meeting (集會) means any gathering or assembly of persons convened or organized for the purpose of the discussion of issues or matters of interest or concern to the general public or a section thereof, or for the purpose of the expression of views on such issues or matters, and includes any gathering or assembly of persons whether or not previously convened or organized at which any person assumes or attempts to assume control or leadership thereof for any such purpose; but does not include any gathering or assembly of persons convened or organized exclusively—

(a) for social, recreational, cultural, academic, educational, religious or charitable purposes, or as a conference or seminar bona fide intended for the discussion of topics of a social, recreational, cultural, academic, educational, religious, charitable, professional, business or commercial character;

(b) for the purpose of a funeral;

(c) for the purposes of any public body; or

(d) for the purpose of carrying out any duty or exercising any power imposed or conferred by any Ordinance”.

Section 7(2) reads:

“This section shall not apply to—

(a) a meeting of not more than 50 persons;

(b) a meeting in private premises (whether or not the public or any section of the public are permitted to attend) where the attendance at the meeting does not exceed 500 persons;

(c) a meeting in any school registered or provisionally registered or exempted under the Education Ordinance (Cap. 279), or in any college registered under the Post Secondary Colleges Ordinance (Cap. 320), or in any educational establishment established by any Ordinance, if—

(i) the meeting is organized or approved by an accredited society or similar body of such school, college or educational establishment; and

(ii) the meeting is held with the consent of the management of such school, college or educational establishment in accordance with the terms of that consent,

whether or not the public or any section of the public are permitted to attend.”

266.  In the context of a public meeting of over 50 persons held in public place and a public meeting of over 500 persons in private premises, the proper and safe conduct of the meeting depends on the readiness, willingness and ability of a responsible person or organisation to observe the requirements of the POO. Thus, it is not surprising that the notice required to be given under sections 7(1)(a) and 8(1) is a notice of “the intention to hold a public meeting”. The intention must be that of the organiser, not the intention of someone else. In the notice, an organiser has to be identified: section 8(4)(a)(i) requires the name, address and telephone number of the organiser to be provided. Section 8(4) reads:

“(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 meeting and any society or organization promoting or connected with the holding of the meeting; and

(ii) a person able to act, if necessary, in place of the organizer for the purpose of section 11(1)(a);

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

(c) the date, location, time of commencement and duration of the meeting; and

(d) an estimate by the person organizing the meeting of the number of people expected to attend the meeting.”

267.  The role played by the organiser is set out in various provisions of the POO. It is clear from those provisions that the organiser, working in conjunction with the police, bears the responsibility for the safe and orderly conduct of the meeting. Section 11(1) requires the organiser or his nominated representative to be present at the meeting with a view to maintain good order and public safety throughout the meeting. Section 11 reads:

“(1) At every public meeting—

(a) there shall be present throughout the meeting either the person who organized the meeting 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 meeting;

(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 meeting.

(2) The Commissioner of Police may, where he reasonably considers it necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others, impose conditions in respect of any public meeting notified under section 8; except that if the meeting is to take place in a designated public area the Commissioner may, insofar as the interests of public order are concerned, only impose conditions relating to the time at which such a meeting may be held.

(3) Notice of any condition imposed pursuant to subsection (2) shall be given in writing to the person by whom the public meeting has been notified or to some other person concerned in the holding, convening, organizing or forming of the meeting and shall state the reasons why such condition is considered necessary.

(4) 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.

(5) Every person who organizes a public meeting, 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).  …”

268.  Notice of the conditions imposed by the Commissioner under section 11(2) is given to the organiser who would then have a legal obligation to comply with the same under section 11(5) as well as the further directions given by a police officer for ensuring that good order and public safety is maintained throughout the meeting. This legal obligation is reinforced by criminal sanction under section 17A(1A).

269.  Hence, under the regulatory regime for public meetings in the POO it is essential that the organiser has to assume responsibility for a public meeting. The identity of the organiser and his ability and readiness to maintain, in conjunction with the police, the good order and public safety of the public meeting are essential components in the scheme of notification under section 7. Thus, the notice that is required to be given under section 8(1) is the notice of the intention of a particular organiser to hold the public meeting.

270.  Therefore, it is not surprising that the right of appeal against a prohibition is only conferred upon the organiser. Other persons cannot appeal against a prohibition because they could not oblige the organiser who has previously given notice to the Commissioner to continue with the organisation and the holding of a meeting. If the organiser does not pursue an appeal in the wake of a prohibition, it is most likely that the organiser abandons any intention to hold the meeting. After all, under section 9(1) the prohibition issued by the Commissioner is a prohibition against the holding of the public meeting notified by a particular notice. It primarily functioned as a pre-emption against the organiser to hold the meeting though notice of such prohibition would be given to the public under section 9(2).

271.  As we have seen, the identity of the organiser and the proposed manner the meeting is to be conducted by that organiser (including the resources and measures that the organiser could put in place to safeguard good order and public safety) are important considerations for the Commissioner in deciding whether the notified meeting should be prohibited. It also follows that the notice given under section 8 and the subsequent prohibition issued by the Commissioner under section 9 are only effective in respect of the holding of the public meeting by that organiser.  

A3.  When the organiser abandons the intention to hold the meeting 

272.  A prohibition does not preclude another person from giving another notice to the Commissioner of that person’s intention to hold a similar meeting though there are time constraints laid down in section 8(1) and (2). Upon receipt of a new notice, the Commissioner would have to consider afresh the notice and other relevant information given by the new organiser. If the Commissioner also issues a prohibition regarding that notification, the new organiser could appeal.

273.  In my view, based on the above analysis, a public meeting to which section 7 of the POO is applicable which has no organiser is necessarily an unauthorised one since no effective notice could have been given under section 8. The requirement of having a responsible organiser to hold a public meeting is the legislative balance struck between the freedom of assembly (including the freedom of the organiser as well as the freedom of those intend to participate in a public meeting) on the one hand and the interests of national security, public safety, public order and the protection of the rights and freedoms of others on the other hand.

274.  After an organiser has abandoned the intention to hold the meeting in light of a prohibition, if no new organiser comes forward to give a fresh notice for the meeting, it would be counterintuitive to suggest that, despite the absence of any organiser, a meeting could still proceed as an authorised meeting based on the notice previously given by the original organiser. The holding of a public meeting without the involvement of any organiser obviously entails greater risk to public safety and public order than the aborted meeting for which the organiser has given notice (which has then been subject to prohibition by the Commissioner). The legislature could not have intended that such a meeting could be an authorised one simply because the organiser capitulated in the wake of the Commissioner’s prohibition.

275.  For this reason, on proper construction, reading the scheme of the POO regulating public meetings as a coherent whole, section 7 only countenances public meeting involving large number of participants when there is an organiser accountable for the safe conduct of the meeting. That organiser must give a notice of his intention to hold the meeting pursuant to section 8. He cannot rely on a previous notice given by another organiser. Nor can a participant rely on a notice given by an organiser who has since the giving of notice abandoned his intention to hold the meeting.

A4.  The prohibition is not an essential ingredient of the offence when the organiser abandoned the intention to hold the meeting   

276.  In light of the above analysis, it is difficult to see the rationale for permitting a defendant charged with an offence of participating in an unauthorized assembly to raise by way of his defence a challenge to a prohibition issued to an organiser who no longer played any role in holding the meeting. As far as that defendant is concerned, he participated in an unauthorised meeting which had not been subject to any notice under section 7(1)(a).

277.  In order to establish that the meeting is an unauthorised meeting, the prosecution does not even need to prove that a prohibition had been made. The meeting contravened section 7 because there was no person willing to take up the role of an organiser to give a notice to the Commissioner with regard to his intention to hold the meeting in which the defendant took part.   

278.  In a nutshell, when the organiser who had previously given notice of his intention to hold the meeting subsequently abandoned such intention in light of a prohibition, the prohibition has no relevance in any subsequent criminal proceedings against other parties.

279.  A meeting could be held in the absence of an organiser and an offence of participating in an unauthorised assembly could be committed in respect of such meeting. The definition in the POO for “meeting” in section 2 provides that “meeting” includes “any gathering or assembly of persons whether or not previously convened or organized at which any person assumes or attempts to assume control or leadership thereof …”.

280.  Viewed in such context, a participant who took part in such unauthorised meeting is not deprived of any opportunity to challenge any relevant element of the offence in the criminal proceedings he faced.

A5.  When the organiser proceeded with holding the meeting despite a prohibition

281.  If the organiser held the notified meeting notwithstanding a prohibition, he could be prosecuted under section 17A(3)(b). It is common ground that the organiser could bring a judicial review to challenge the prohibition after he failed before the Appeal Board notwithstanding section 44A(7).

282.  A person who knowingly takes part in such meeting without lawful authority or reasonable excuse could be prosecuted under section 17A(3)(a). I agree with the Chief Justice that when someone is arrested for participating in an unauthorised assembly, he would have the requisite standing to bring a judicial review to challenge the proportionality of the prohibition. Further, I am of the view that someone arrested for inciting others to participate in such unauthorised assembly held by that organiser would also have standing to do so.

283.  Likewise, someone arrested for the offence under section 17A(1)(d) for making an announcement or publishing an advertisement or notice a public meeting which is prohibited would also have standing to bring such judicial review application.

284.  The issue before us is whether, in addition to judicial review, a defendant could challenge the proportionality of the prohibition in criminal proceedings. No matter how this question is to be answered, a defendant would not be deprived of the opportunity for bringing a challenge to the relevant prohibition in a court of law.

285.  For the reasons given by the Chief Justice, and in light of the other features in the POO regime which I have previously mentioned, I respectfully agree that it could not have been the intention of the legislature to permit the substantive validity of a prohibition to be canvassed in criminal proceedings. The only avenue for mounting a challenge against a prohibition is by means of judicial review.    

286.  The above survey on the operation of the POO also demonstrates that it is impossible to draw a line at the end of the determination of an appeal by the Appeal Board to delimit the effect of section 44A(7) on the “finality” concerning challenges to the validity of a prohibition. It could not have been the intention of the legislature that section 44A(7) only serves to define the end of the statutory decision process. The statutory decision process is only a means to serve the ends of having a prohibition in place to facilitate the regulation of a notified public meeting. Such regulation takes practical effects through the other statutory measures in the POO which operate after the decision process.

287.  Subject to judicial review, section 44A(7) instils certainty on the legality of a prohibition. As explained by the Chief Justice[152], such certainty is important for the proper and effective functioning of the regulatory regime under the POO.

288.  Viewed in light of the above analysis, I support the Chief Justice’s construction of sections 17A(2) and (3)(a).

B.  Constitutional challenge

289.  Ribeiro PJ also held that since freedom of assembly is a constitutionally entrenched right a defendant is entitled to challenge the prohibition as a disproportionate restriction of such right in criminal proceedings irrespective of the legislative intention embodied in the POO.

290.  For my part, I would reckon that the analysis as to the restriction on freedom of assembly is a more nuanced one. The prohibition was made by the Commissioner under the POO regime which, according to Leung Kwok Hung v HKSAR[153], imposes a proportionate restriction on freedom of assembly.

291.  There is no universal rule that where the activity of a defendant in committing of an offence took the form of a protest or demonstration, the criminal court must examine the proportionality of the interference with such right in the circumstances of each individual case, see In re Abortion Services (Safe Access Zones) (NI) Bill[154]at [28] and [34].

292.  Offences containing a reference to “lawful or reasonable excuse” do not necessarily require an assessment of proportionality in the circumstances of each case, Abortion Services[155]at [53] and [58]. The correct approach is a nuanced one involving the following steps even when freedom of assembly is engaged:

(a)  Whether the offence is one where the ingredients of the offence themselves strike the proportionality balance: if the offence is so defined to ensure that any conviction will meet the requirements of proportionality, the court does not have to go through the process of verifying that a conviction would be proportionate on the facts of every individual case, see [55];

(b)  If the proof of the ingredients of the offence does not in itself ensure the proportionality of a conviction, the court should ask if there is a means by which proportionality of a conviction can be ensured. One possibility is to interpret a defence of lawful or reasonable excuse as providing a route for proportionality assessment, see [56] to [57].

293.  Lord Reed PSC summed up the approach at [58] in these words:

“But the mistake should not be made of assuming that the presence of a reference to a lawful or reasonable excuse in the definition of an offence necessarily means that a proportionality assessment in respect of Convention rights is appropriate…Further, where the ingredients of the offence in themselves do strike the appropriate balance, there is no need for a Convention proportionality assessment when considering the lawful excuse defence. That defence can be relied on in other circumstances that do not raise Convention issues, such as where the defendant asserts that he acted in self-defence or out of necessity, or had been lawfully authorised to engage in the conduct alleged.”

294.  In James v Director of Public Prosecutions[156], the English Divisional Court considered whether a criminal court should decide on the proportionality of a direction given by a senior police officer under section 14 of the Public Order Act 1986 imposing a condition requiring a protest not to take place on a zebra crossing in the wake of protesters crossing and re-crossing it to impede the progress of traffic by way of protest. The defendant was charged with the offence of knowingly failing to comply with such direction. The Divisional Court held that satisfaction of the statutory test is proof of the proportionality of the making of a direction because the statute requires the senior officer to hold the necessary belief that a public assembly may result in serious public disorder and to have reasonable grounds for that belief[157].

295.  James was cited by Lord Reed in Abortion Services[158] as an example of a criminal offence achieving inherent proportionality without the need for a fact-specific assessment in individual cases.

296.  As noted by Ribeiro PJ, there is a close resemblance of wording of HKBOR 17 and sections 9(1) and (4) of the POO and the relevant HKBOR 17 concepts have been incorporated into the POO. This suggests that the POO restrictions on freedom of assembly are, like the offence in James, inherently proportionate. Under this regime, “operational proportionality” is primarily a matter for the Commissioner and, on appeal, the Appeal Board. There is a residual route of challenge by way of judicial review.

297.  These concerns have to be addressed before the court launches into a Hysan proportionality analysis on a fact-specific assessment in individual case.

298.  There is no systemic challenge to the POO regime in the present case. The respondent does not contend that the finality laid down by section 44A(7) (confining the avenue of further challenge to a prohibition to judicial review) is constitutionally disproportionate.

299.  In these circumstances, the real debate in the present context is not whether there is any scope for advancing “operational proportionality” challenge against a prohibition when the “systemic proportionality” under the POO is not in issue[159]. Neither the Chief Justice nor Ribeiro PJ discussed this issue in their draft judgments. I prefer to leave it open as it may be subject to further debate in another case for which an application for leave to appeal to this Court is forthcoming.  

300.  The immediate issue before us is whether “operational proportionality” of a prohibition could be considered in the context of the criminal proceedings instead of an application for judicial review. In the absence of any contention that the restriction on avenue for judicial redress by section 44A(7) is disproportionate, I agree with the Chief Justice that the constitutional challenge does not make any difference in the present case.

301.  In any event, as indicated earlier, I agree with Ribeiro PJ that the judge erred in coming to the conclusion that the Commissioner was under a positive duty to put forward alternatives for the consideration of the organiser.    

Chief Justice Cheung:

302.  Accordingly, the Court unanimously allows the appeal, restores the conviction of the respondent and remits the appeal against sentence to the judge for determination.