郭卓堅及另一人 v. 警務處處長盧偉聰先生及另一人

HCAL 2337/2019

[2019] HKCFI 2557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2337 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  In this application for leave to apply for judicial review, the Applicants seek to challenge an alleged requirement that a member of the public can only hold a public meeting or public procession with the approval of the Commissioner of Police (“the Commissioner”) or the Appeal Board under the Public Order Ordinance, Cap 245 (“the Ordinance”), on the ground that such approval requirement is inconsistent with Articles 27 and 39 of the Basic Law (“BL 27” and “BL 39” respectively).  In what follows, references to sections shall be to the Ordinance.

THE STATUTORY SCHEME RELATING TO THE CONTROL OF PUBLIC MEETINGS AND PUBLIC PROCESSIONS

2.  The Ordinance makes provisions regulating, inter alia, the holding of public meetings and public processions (“the Statutory Scheme”), the essential features of which are set out below.

3.  In so far as public meetings are concerned:

(1)     Under section 7(1), a “public meeting” within the meaning of that expression as defined in Section 2(2) which is not excepted by section 7(2) may take place if, but only if –

(a)     the Commissioner 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 under section 9.

(2)     Section 8 stipulates the manner and timeframe for giving notice of an intended public meeting to the Commissioner.

(3)     Section 9(1) empowers the Commissioner 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.

(4)     Section 9(2) stipulates the manner in which notice of prohibition of an intended public meeting is to be given by the Commissioner, while section 9(3) stipulates the timeframe for the giving of notice of prohibition.

(5)     Section 9(4) provides that the Commissioner 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).

(6)     Section 11(1) provides that 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; and

(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.

(7)     Under Section 11(2), the Commissioner 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.

(8)     By Section 11(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).

4.  In so far as public processions are concerned:

(1)     Under Section 13(1), a “public procession” within the meaning of that expression as defined in Section 2(2) which is not excepted by section 13(2) may take place if, but only if –

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

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

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

(2)     Section 13A stipulates the manner and timeframe for giving notice of an intended public procession to the Commissioner.

(3)     Section 14(1) empowers the Commissioner to object to a public procession being held if he reasonably considers the objection is necessary in the interests of national security or public safety, public order or the protection of the rights and freedoms of others.

(4)     Section 14(2) stipulates the manner in which notice of objection of an intended public procession is to be given by the Commissioner, while section 14(3) stipulates the timeframe for the giving of notice of objection.

(5)     Under Section 14(4), if the Commissioner does not notify, post or publish his having an objection in accordance with subsection (2) and within the time limit specified under the Ordinance, the Commissioner is taken to have issued a notice of no objection for the public procession.

(6)     Section 14(5) provides that the Commissioner shall not exercise his right under subsection (1) to object to the holding of a public procession if 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 imposing conditions under section 15(2).

(7)     Section 15(1) provides that at every public procession –

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

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

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

(8)     Under Section 15(2), the Commissioner may, where he reasonably considers it necessary in the interests of national security or public safety, public order or for the protection of the rights and freedoms of others, impose conditions in respect of any public procession notified under section 13A.

(9)     By Section 15(4), every person who organizes a public procession, or any person acting in place of such person for the purpose of subsection (1)(a), shall comply forthwith with any direction given to him by a police officer for ensuring compliance with or the due performance of any of the requirements of subsection (1) or any conditions imposed under subsection (2).

5.  The Ordinance also makes provisions for an appeal mechanism against decisions made by the Commissioner in relation to public meetings/public processions:

(1)     Under 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 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)     Under Section 44(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.

(3)     Under Section 44(4), the Appeal Board may, after hearing an appeal, confirm, reverse or vary the prohibition, objection or condition appealed against.

(4)     By Section 44A(7), the determination of an appeal by the Appeal Board shall be final.

DISCUSSION

6.  It is important to note at the outset that the Applicants are not challenging any particular decision of the Commissioner or the Appeal Board made under the Ordinance in relation to a proposed public meeting or public procession, although in their joint Affirmation dated 30 August 2019, they produced as an exhibit a copy of a letter issued by the Commissioner to one Mr Chung dated 25 July 2019, in which the Commissioner gave notice of prohibition and objection of or to a proposed public meeting and public procession intended to take place on 27 July 2019 in Yuen Long.  As can be seen from the Form 86 dated 14 August 2019, the Applicants are mounting a systemic challenge to the Statutory Scheme established under the Ordinance for the control of public meetings and public processions.

7.  The Applicants’ premise that a public meeting or public procession can only be held with the approval of the Commissioner or the Appeal Board is not strictly accurate.

(1)     In relation to a public meeting, it can be held provided that the Commissioner has been properly notified of the intention to hold the meeting, although the Commissioner has a discretion to give a notice of prohibition of the intended meeting on specified statutory grounds.

(2)     On the other hand, in relation to a public procession, it is correct to say that it can be held only after the Commissioner has issued a notice of no objection, or is taken to have issued a notice of no objection, based on specified statutory grounds.

8.  In their Form 86, the Applicants contend that the alleged approval requirement is inconsistent with BL 27 and BL 39.

(1)     BL 27 states as follows –

“Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

(2)     BL 39(1) states as follows –

“The provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.”

(3)     BL 39(2) goes on to provide that –

“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.”

9.  As is well known, the International Covenant on Civil and Political Rights is applied or implemented in Hong Kong through the Hong Kong Bill of Rights Ordinance (Cap 383).  The article in the Hong Kong Bill of Rights relevant for the present purpose is Article 17 (“BOR 17”, corresponding to ICCPR 21), which states as follows –

“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.”

10.  It is well established that the freedom of assembly, procession and demonstration under BL 27, and the right of peaceful assembly under BOR 17, are not absolute, and the exercise of such freedom or right may be subject to restrictions which are (i) prescribed by law (or imposed in conformity with the law), and (ii) “necessary” (tested by the application of a proportionality analysis) in the interests of national security or public safety, public order or the protection of the rights and freedoms of others (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229).  In that case, it was held by the Court of Final Appeal that the notification requirement for a public procession was constitutional (see paragraph 65 of the judgment), and that the Commissioner’s discretion to restrict a public procession from taking place based on the “public order” ground (in the law and order sense, that is, the maintenance of public order and prevention of public disorder) satisfied the “prescribed by law” requirement (see paragraphs 82 and 83 of the judgment). Further, the restriction based on the public order ground was rationally connected with the wider constitutional legitimate purpose of “public order (ordre public)” and was no more than was necessary to accomplish that purpose, and hence satisfied the proportionality test and the “necessity” requirement (see paragraphs 90-95 of the judgment).  Although the Court of Final Appeal expressly left open the question of whether the Commissioner’s discretion based on “the protection of the rights and freedoms of others” ground satisfied the “prescribed by law” requirement (see paragraphs 86-88 of the judgment), that matter has no bearing on the present application.

11.  The same reasoning, in my view, would lead to the conclusion that the notification requirement in respect of a public meeting and the restriction of the right to hold a public meeting based on the public order ground (in the law and order sense) is also lawful and constitutional.

12.  That the right guaranteed by BL 27 and BOR 17 is not absolute, but may lawfully be restricted by the need to maintain or uphold national security or public safety, public order or the protection of the rights and freedoms of others has recently been affirmed by the Court of Appeal in Secretary for Justice v Joshua Wong Chi Fung and Others [2017] 5 HKC 116, at paragraphs 116 to 118.  That part of the judgment of the Court of Appeal was not affected by the judgment of the Court of Final Appeal in the same case ((2018) 21 HKCFAR 35).

13.  The Applicants have failed to raise any reasonable argument that the Statutory Scheme is inconsistent with BL 27 and/or 39.

14.  In any event, the current Statutory Scheme has been part of the laws of Hong Kong since around 2008.  The Applicants have substantially delayed in making the present application to challenge the Statutory Scheme, without giving any reason or explanation for the delay.  The principles governing an application for an extension of time to apply for leave to apply for judicial review are well known and shall not be repeated here.  I do not consider that there is good reason for extending the period within which the present application for leave to apply for judicial review shall be made.

15.  Also, I am not satisfied that the intended application for judicial review is reasonably arguable, or has a realistic prospect of success.

DISPOSITION

16.  The court does not grant any extension of time to the Applicants to make the present application for leave to apply for judicial review, and dismisses the application for leave to apply for judicial review.