CHEE FEI MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

CACV 489/2018
and CACV 490/2018
[2020] HKCA 677
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 489 OF 2018

(ON APPEAL FROM HCAL 73/2013)

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AND

CIVIL APPEAL NO 490 OF 2018

(ON APPEAL FROM HCAL 110/2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  These are applications for leave to appeal to the Court of Final Appeal in respect of our judgment of 16 December 2019 (“the 2^nd CA Judgment”).[1] 

2.  As previously mentioned, these appeals are the second occasion these matters came before this Court.  Previously, in CACV 219 and 220/2014 (“the 1^st CA Judgment”), the Court had upheld the decision of Poon J (as he then was) refusing leave to apply for judicial review based on the grounds advanced in the Court of First Instance.  However, this Court (Cheung CJHC, as he then was, Lam VP and Barma JA) granted leave for new arguments to be pursued and granted leave to apply for judicial review on that basis.  The substantive judicial review was remitted back to the Court of First Instance.

3.  In the meantime, the applicants applied for leave to this Court for leave to appeal to the Court of Final Appeal regarding the 1^st CA Judgment.  The questions of great general and public importance were formulated by the applicants as follows:

(1)  Whether it is reasonably arguable that on its true construction the requirement in Section 104A of the Public Health and Municipal Services Ordinance (Cap 132) for prior approval for display of bills and posters on government land is not applicable to demonstrators’ banners. (“the Construction Question”)

(2)  Whether it is reasonably arguable that the application to demonstrators’ banners of the requirement in Section 104A of the Public Health and Municipal Services Ordinance (Cap 132) for prior approval for display of bills and posters on government land is inconsistent with Basic Law Article 27 and Bill of Rights Articles 16 and 17, in that it fails the proportionality test. (“the Proportionality Question”)

4.  By a decision of 7 September 2016, this Court refused to grant leave.  Upon this Court’s dismissing the notice of motion, the applicants applied for leave to appeal to the Court of Final Appeal regarding the 1^st CA Judgment.  The Appeal Committee determined in FAMV 42 and 43/2016 that leave to appeal should not be granted on questions confining the Court to the original grounds while closely related issues involving fresh evidence and concerning the same legislative and administrative measures are pending to be dealt with at first instance.  It was held that a proportionality analysis of the scheme of control cannot satisfactorily be undertaken piecemeal in separate stages, each relating to different aspects of the scheme.[2]

5.  The Appeal Committee accordingly adjourned the matter sine die with leave to the parties to restore it for hearing, if so advised, in light of the outcome or further developments in respect of the remitter.

The Notices of Motion

6.  By two notices dated 24 February 2020 and filed on 10 March 2020, the Applicants applied for leave to appeal to the Court of Final Appeal pursuant to S.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  The following questions were formulated as questions of great and general public importance or which otherwise ought to be submitted to the Court of Final Appeal.

(1)  Whether Section 104A of the Public Health and Municipal Services Ordinance, Cap 132 (“PHMSO”) applies to display of banners or placards used during demonstrations with a degree of permanence and habitual regularity? (“Question 1”)

(2)  What is a demonstration for the purpose of Article 27 of the Basic Law? (“Question 2)

(3)  On the assumption that section 104A(1)(b) of the Public Health and Municipal Services Ordinance, Cap 132 is applicable to banners displayed during a demonstration, whether Section 104A as so construed is inconsistent with Article 27 of the Basic Law (“BL 27”) and Articles 16 and 17 of Hong Kong Bill of Rights (“the Protected Rights”), and is therefore unconstitutional? (“Question 3”)

7.  The applications are opposed by the Respondents. 

8.  By a letter dated 11 May 2020, the Applicants sought leave from this court to amend the Notices of Motion (“the Amendment Application”).  Draft Amended Notices of Motion were attached to the letter. 

9.  By a letter dated 12 May 2020, the Respondents opposed the Amendment Application, arguing that the proposed amendments were unnecessary as the questions framed in the original Notices of Motion were in substance the same.  Furthermore, the proposed amendments were in the nature of skeleton submissions. 

10.  On 12 May 2020, Lam VP dismissed the Amendment Application and reserved the questions of costs.  Further, as directed by Lam VP the draft amendments were treated as part of the Applicants’ submissions.

11.  It is unfortunate that those acting for the Applicants failed to pay heed to what the Court had previously said at [4] of the Decision of 7 September 2016.  We reiterated the same here:

“ 4. The essential function of a Notice of Motion in an application for leave is to identify the questions for the determination of the Court of Final Appeal and explain how those questions arise in the intended appeal and how they satisfy the requirement in Section 22 of the HKCFAO. Whilst arguability of the questions is a matter that the courts will consider in deciding whether leave is to be granted, it is primarily a matter of submissions which should not be set out at length in a Notice of Motion. Disguising submissions as grounds of appeal in a Notice of Motion (and we will also say the same regarding Notices of Appeal in respect of appeals to this Court) is not appropriate…”

Question 1

12.  In our view, the essence of Question 1 comes down to the true and proper construction of Section 104A of the PHMSO.  This is part of the Construction Question ventilated in the 1^st CA Judgment.  If the Applicants wish to pursue the same (even with the added argument based on a prescribed by law dimension which had not been raised before us in these appeals), they should re-activate the application in FAMV 42 and 43/2016 instead of making an application in the context of these appeals in which the question were not addressed (since it has been addressed before in the 1^st CA Judgment). 

13.  We therefore decline to grant leave to the Applicants under Question 1.  

Questions 2 and 3

14.  According to our understanding, the nub of the Applicants’ argument under these 2 questions is that a distinction should be drawn between their display of banners in static demonstrations and other unattended banners such as bills, posters and graffiti.  They accepted that the latter forms of display can be subject to control under Section 104A in the public interest of maintaining the tidiness of the city.  However, the Applicants seek to argue that Section 104A was never intended to cover their banners used in static demonstration by virtue of BL 27.

15.  In essence, Mr Harris SC sought to argue that the balance should be struck differently in respect of static demonstrations and this Court erred in treating them in the same way as graffiti containing political or social messages at [21] of the 2^nd CA Judgment.

16.  In our judgment, the Applicants failed to pay proper regard to the context in which we made our comparison with graffiti under [21].  At that paragraph we addressed the relevance of the legitimate aims served by Section 104A.  We did not address how the balance is to be struck in that paragraph.

17.  Given that the challenge in the present case is a systemic one, we rested our decision on the applicability of Section 104A to display of banners associated with static demonstrations, see [91] to [95] of the 2^nd CA Judgment which also referred back to [44] and [45] of the 1^st CA Judgment.  We did not find it necessary to address the proportionality issue in the 2^nd CA Judgment for the reasons we gave at [97] to [99].

18.  Insofar as the Applicants seek to argue that Section 104A should not be construed to apply to display of banners in static demonstrations, it falls within the scope of the Construction Question.  As said above, they should re-activate their applications in FAMV 42 and 43/2016 instead of seeking leave from us in the context of the present appeals.

19.  Insofar as the Applicants seek to argue on a systemic level, the proportionality balance should be struck against the application of Section 104A to display of banners in static demonstrations, it falls within the scope of the Proportionality Question.  Again they should incorporate this argument in their applications in FAMV 42 and 43/2016 instead of seeking leave from us in the present appeals.

20.  Therefore, we are not minded to grant leave under Questions 2 and 3. 

21.  We dismiss the two Notices of Motion.  The Applicants shall pay the Respondents’ costs of the motion and the Amendment Application, such costs are fixed at HK$114,957.00 as per the Statement of Costs of the Respondents.  The Applicants’ own costs are to be taxed under Legal Aid Regulations.