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

CACV 219/2014 and
CACV 220/2014

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 219 OF 2014

(ON APPEAL FROM HCAL NO. 73 OF 2013)

________________________

________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2014

(ON APPEAL FROM HCAL NO. 110 OF 2013)

________________________

________________________

(Heard together)

________________

JUDGMENT

________________

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

A.  Introduction

1.  These appeals concern the constitutionality of the statutory scheme under Part IX of the Public Health and Municipal Services Ordinance Cap 132 [“the Ordinance”] which regulates the display and affixing of bills and posters.  Issues of constitutionality are engaged because the 1^st respondent [“the Director”] exercised his power under Section 104C to remove materials displayed without his permission (as required by Section 104A) on Government land in respect of banners, placards and frames used in connection with Falun Gong [“FLG”] static demonstrations at various spots in Hong Kong.  The Applicants are Falun Gong practitioners and they complained that such actions on the part of the Director infringed their constitutional rights of demonstration.  They sought leave to apply for judicial review in which they asked for declaratory relief seeking to read down the scope of this statutory scheme to exclude the display of banners in static demonstration from it.  In short, they contended that as long as the banners are being displayed in conjunction with the exercise of the right of demonstration, the statutory scheme should not be applicable.

2.  It should also be stated at the outset that in the present cases all the demonstrations in question took place on Government land open to public.  Though the statutory scheme also contains provisions for the display and removal of materials over Government land not open to public and private properties, in our consideration of the constitutional arguments in these appeals, we only focus on demonstrations taking place on Government land open to public.  In some respects, the consideration of constitutionality for demonstration on land not open to public or private properties, in particular the legitimate interests and the competing interests involved in the application of the proportionality test may well be different.  It is not necessary for us to address these aspects in this judgment.

3.  On 15 October 2014, after a rolled-up hearing which lasted for 2 days and further written submissions filed subsequently, Poon J (as Poon JA then was) refused to grant leave.  These are appeals against the orders of Poon J [“the Judge”].  Due to an error of judgment on the part of the solicitors for the Applicants, the appeals were brought out of time. Extension of time to serve the notices of appeal was eventually sought by summons on 6 January 2015 and it was granted by the court on 20 April 2015.

4.  As the hearing before the Judge was a rolled-up hearing, there were disagreements between the parties on the precise scope of these appeals.  The court had to hold a direction hearing on 11 September 2015 (before the Chief Judge and Lam VP) for the ventilation of such dispute.  In the end, it was decided that the Applicants could deploy full arguments on the substantive merits in the appeals though the relief that this court could grant in appeals against the refusal of leave in the context of a rolled-up hearing was reserved to be decided by this court at the substantive hearing of the appeals before a three member Court of Appeal.

B.  Appeal against an order made in rolled-up hearing in judicial review 

5.  In light of the history of these appeals, it is opportune that this court should clarify the role of the Court of Appeal in an appeal against an order made by the court below in a rolled-up hearing.

6.  In principle, the following propositions must be correct:

(a)  The courts do not have the power to dispense with the requirement of leave and, properly understood, a rolled-up hearing is no more than a direction for the two stages to be heard on the same date with the substantive application heard immediately after the leave application: see BI v Director of Immigration CACV 9, 103, 134 of 2015, 8 March 2016;

(b)  In an appeal, the Court of Appeal is concerned with an appeal against an order made by the court below.  If the court below refused to grant leave to appeal, this court in such an appeal is concerned with an appeal against the refusal of leave as opposed to an appeal against the refusal to grant substantive relief by way of judicial review;

(c)  It also follows from proposition (a) that this court has no power in the hearing of an appeal to dispense with the two stages in an application for judicial review prescribed by the High Court Ordinance;

(d)  Further, this court does not have the power to convert an order of the Court of First Instance in refusing leave into an order for the refusal of substantive relief;

(e)  Apart from the difference between the threshold burden (at the leave stage) and the substantive merits, the grant of leave and the grant of substantive relief by way of judicial review can involve different considerations.  Substantive relief in a judicial review application is discretionary and some discretionary considerations which are not relevant at the leave stage can be highly relevant in determining whether substantive relief ought to be granted and what relief is appropriate.  Hence, it is possible that a judge refusing leave may not have considered all the relevant discretionary considerations in terms of substantive relief; 

(f)  The direction of the Court of First Instance to hold a rolled-up hearing cannot tie the hands of the Court of Appeal.  Thus, the mere fact that the hearing below was conducted by way of a rolled-up hearing does not mean that this court is obliged to hear full arguments on the merits in the appeal if the order made by the lower court is to refuse leave;

(g)  However, given that full arguments on the merits would have been deployed at the court below, other things being equal, as a matter of case management in light of the underlying objectives in Order 1A, it is usually appropriate for this court to allow parties to canvass full arguments on the merits in the appeal.

7.  It does not follow from proposition (g) above that this court could proceed to grant substantive relief if we agree with the appellant on the substantive merits.  As explained above, the appeal remains an appeal against the refusal of leave and we do not have the power to compress the two stages into one.  Thus, before this court can proceed to grant substantive relief, there has to be a second stage after we overturn the lower court’s decision in refusing leave.      

8.  Whilst it is correct that under Section 13(4) of the High Court Ordinance and Order 59 Rule 10(3), this court can exercise the power to give any judgment and make any order which ought to have been given or made below, this court should always bear in mind that we are exercising our power in an appellate jurisdiction and we should be circumspect when invited to exercise any power which is tantamount to an exercise of original jurisdiction, see Great Perfect Investment v Leung Yat Wah [1990] 2 HKC 219; TCWF v LKKS [2013] 2 HKC 549.

9.  We have been referred to the English practice in the past where the Court of Appeal, in overturning a refusal of leave, reserved the substantive hearing back to itself on a new date to be fixed, see R v Industrial Injuries Commissioner, ex p Amalgamated Engineering Union [1965] 2 QB 21; R v Secretary of State for Home Department ex p Adan [1999] 3 WLR 1274.  The source of that jurisdiction stemmed from the historical development in the English courts and the provision in Section 32 of the Supreme Court of Judicature (Consolidation) Act 1925.  Historically, upon a refusal of leave by the Divisional Court, an applicant could renew an application for leave before the Court of Appeal instead of appealing against such refusal.   If the Court of Appeal granted leave, the practice was to issue a notice of motion for substantive relief in the Court of Appeal instead of the lower court.  It was held in the English cases that such jurisdiction was preserved by the 1925 Act.  In the old days judicial review was conducted by the grant of rule nisi for the writ of certiorari (as opposed to leave to apply) and on substantive hearing the rule nisi could be affirmed or discharged.  In Amalgamated Engineering Union, supra, Davies LJ at p.29 suggested that a possible reason for the old English practice was that since the rule nisi was granted by the Court of Appeal, it could only be discharged by the Court of Appeal.  Subsequently, the same power was preserved by section 15(2) of the Supreme Court Act 1981[1].    

10.  As far as we are aware, the practice in Hong Kong is different: challenge against refusal of leave has always been pursued by way of appeal as required by the rules, see Order 53 Rule 3(4) which is a unique Hong Kong provision.  Nor do we have the equivalent of the provisions in the 1925 Act and 1981 Act conferring original jurisdiction on this court.  Our Court of Appeal was established in 1976 under the Supreme Court Ordinance (No 92 of 1975).  Our jurisdiction is circumscribed by Section 13 of the High Court Ordinance and the Court of Appeal has not been conferred with any pre-existing original jurisdiction similar to those exercised by the English Court of Appeal.  As far as one can glean from the law reports, prior to 1976, applications for prerogative writ were heard by the Full Court, which heard the matter in the exercise of its original jurisdiction.  But with the establishment of the Court of Appeal in 1976, the exercise of appellate jurisdiction in the Supreme Court was clearly demarcated from the exercise of original jurisdiction and after 1976 original applications for prerogative writs were heard by judges in the High Court (now the Court of First Instance) instead of the Court of Appeal[2]. Hence, we cannot rely on the English jurisprudence to support the exercise of original jurisdiction by the Court of Appeal to entertain the substantive application for judicial review upon granting leave.

11.  Mr Harris also referred to several local cases where the courts proceeded by way of rolled-up hearing in an application for judicial review.  However, there has not been any case where our Court of Appeal exercised any original jurisdiction in an appeal from a decision of the Court of First Instance in a rolled-up hearing.

12.  Coming back to Section 13(4) of the High Court Ordinance, it is necessary to read the sub-section as a whole.  Though it does provide that the Court of Appeal shall have all the authority and jurisdiction of the court below, it starts by specifying that such power should be exercised “for the purposes of and incidental to the hearing and determination of an appeal”[3].  Thus, one must go back to the scope of the appeal.  In an appeal against refusal to grant leave, albeit a refusal after a rolled-up hearing, the Court of Appeal is primarily concerned with whether leave should have been granted instead of whether substantive relief should be granted.

13.  At the same time, in an appeal from a rolled-up hearing, there is nothing to prevent the Court of Appeal from expressing its view in its judgment on the merits of the full arguments which have been canvassed before it.  The problem is how the gap arising from the absence of a first instance decision on substantive relief can be filled so that this court can legitimately address question of substantive relief.  In this connection, we understand Mr Harris’ concern that the Applicants should not be required to incur unnecessary costs and time for another substantive hearing before the Court of First Instance if all the relevant issues have been decided by us.

14.  We are also mindful of Section 16 (2) of the High Court Ordinance which provides that we should exercise our jurisdiction to secure that, as far as possible, all matters in dispute between the parties are completely and finally determined and multiplicity of proceedings is to be avoided.  The underlying objectives and the duty of active case management in Order 1A are also relevant.

15.  In our judgment, there is a simple way to solve the difficulty identified above.  If we are satisfied that all relevant issues could be determined in the appeal, this court can remit the matter to the Court of First Instance and direct that judgment be entered in accordance with our judgment on all the substantive issues.  This needs not entail another substantive hearing before the Court of First Instance.  This court can give directions for the filing of the relevant Originating Summons by the applicant and then direct the parties to make a joint written application to the Court of First Instance to enter judgment on papers according to our judgment. 

16.  However, this option can only be applied when this court is satisfied that all relevant issues can be determined at the hearing before us.  As mentioned at paragraph 6(e) above, there could be issues which the judge below had not addressed in his judgment in a rolled-up hearing.  In such situation, unless parties agree to leave it to the Court of Appeal to determine such outstanding issues and this court considers this to be the appropriate course to adopt, the matter will have to be remitted to the Court of First Instance for further argument and determination.

17.  In light of the above analysis, judges in the Court of First Instance should be cautious in deciding whether a matter should be processed by way of a rolled-up hearing.  In the present appeals, as we shall explain below, by reason of the new lines of argument run by Mr Harris at a very late stage, it would be unfair and inappropriate for us to resolve all the substantive issues in these appeals.  Hence, as indicated in the course of the hearing, we shall only confine our decision to considering whether leave should be granted and the extent to which such leave is to be granted.

C.  Developments at the hearing of the appeals: the application for leave to re-amend the Form 86 to embrace the new arguments of Mr Harris

18.  At the beginning of the hearing before us, Mr Harris indicated that he wished to advance a new argument based on the proper construction of Section 104A.  It was not an argument foreshadowed in his skeleton submissions.  Counsel explained it was an argument conceived by him after reading the judgment of the Court of Final Appeal in T v Commissioner of Police (2014) 17 HKCFAR 593, a decision which this court drew to the attention of the parties (though that was done for different purposes, see the discussion below).

19.  Further, in his skeleton submissions, Mr Harris advanced an argument challenging Section 104A on the ground that it does not satisfy the “prescribed by law” requirement in Article 39(2) of the Basic Law [“BL 39(2)”] and article 16(3) of the Hong Kong Bill of Rights [“BoR 16(3)”]. 

20.  These arguments were not advanced in the Form 86.  The construction point was not argued before the Judge.  Though the Judge did refer to the “prescribed by law” requirement in his judgment, he did so in the context of assessing the constitutionality of Section 104C, not Section 104A.  Before us, Mr Harris’ challenge was advanced in respect of Section 104A and it had not been properly canvassed in the court below.

21.  Though this court has power to hear new points on appeal, in general we would only do so if we are satisfied that the new points would not occasion any unfairness and that we have all the necessary materials before us to entertain the same, see Flywin Co Ltd v Strong Associates Ltd (2002) 5 HKCFAR 356 and Lehmanbrown Ltd v Union Trade Holdings Inc HCMP 977 of 2015, 17 June 2015. 

22.  Moreover, this court has also held that in order to have a new point properly put before the court, it should be properly set out in the Notice of Appeal, or a draft amended Notice of Appeal.  In the context of an application for judicial review, the point should also be set out in a draft amended Form 86.  In this regard, Ma CJHC (as the Chief Justice then was) gave the relevant guidance in Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKC 393.

23.  We therefore insisted that Mr Harris should properly formulate his new points by placing before us a draft amended Form 86.  As a result, Mr Harris applied for leave to re-amend the Form 86 in these proceedings by adding these paragraphs:

“ (10) The decision was further unlawful in that, on a proper construction, the statutory scheme under sections 104A to 104E of the Public Health and Municipal Services Ordinance did not give the Respondent power to seize the Applicants’ banners.

(11)   Alternatively, the decisions were further unconstitutional in that the requirement in Section 104A of the Public Health and Municipal Services Ordinance to submit demonstrators’ banners for prior approval is not prescribed by law as it fails the test of legal certainty.”

24.  With respect, it was not a very satisfactory amendment and Mr Yu SC (appearing with Mr Mok SC and Mr Ma for the Respondents) justifiably complained about the lack of sufficient particulars in respect of the substance of these new challenges. For new points advanced at this late stage, it behoves a party seeking leave for them to be entertained to give as full particulars as possible in order to enable the opposing party and the court to properly apprise of the same and to assess the extent to which the necessary information is before the court and the prejudice that might be occasioned to the opposing party if the court were to grant such indulgence.

25.  In the present context, we have to say that but for the considerations mentioned in the next paragraphs, we would have been minded to reject Mr Harris’ application and leave it to the Applicants (or other members of the FLG) to commence fresh challenges based on these new points.  There is no explanation as to why these new points were not taken below and we had to agree with Mr Yu that the draft amendments left much to be elaborated upon by way of full understanding of Mr Harris’ new arguments.   

26.  If the matter were a private civil dispute, the most important consideration is fairness between the parties and we would have no hesitation in refusing leave for such new points to be canvassed.  But this is not a private civil dispute.  Though we agree with Mr Yu that strict case management discipline is of no less importance in public law cases, the court must also have regard to its role in such cases.  These challenges in respect of the construction and the constitutionality of Section 104A would always loom large in the background if we do not resolve them in these proceedings.  We were told by Mr Harris that there are outstanding criminal prosecutions of offences under Section 104A awaiting the decision in these appeals.  And there is always a possibility (and we put it no higher than that) that the case may go further and it would not be satisfactory if the Court of Final Appeal is required to consider a matter of great general public importance when some highly relevant aspects of Section 104A had not been properly examined by us. 

27.  Moreover, and perhaps more importantly, the issues which are properly before us in these appeals presuppose that on proper construction Section 104A is applicable to the FLG banners.  We find it difficult to address the question of constitutionality without the court first mapping out the proper construction of Section 104A.  Otherwise, we could end up in dealing with the challenge on constitutionality on a completely false premise. 

28.  As regards the “prescribed by law” point, it is relevant in the application of the proportionality test to ask what criteria were to be applied if an approval is sought under Section 104A.  Though these are separate points, we can see that there could be common evidence relevant to both of them.  Because of the way in which the case was developed in the court below, the Judge did not focus on that aspect.  Instead the focus was on Section 104C.  For reasons canvassed below, we respectfully disagree with the Judge and the relevant evidence on approval under Section 104A would have to be examined afresh anyway.

29.  Hence, in the exceptional circumstances of these appeals, we decided we should allow Mr Harris to canvass these new points in the appeals.  We appreciated that it would be unfair to the Respondents not to allow them to put in further evidence, especially in the context of the “prescribed by law” aspect.  Thus, we decided what we should do was to entertain these new points (which had not been considered by the Judge as they were not argued before him) only in the context of leave to apply for judicial review. Further, as a condition for granting such indulgence to the Applicants, in order to ameliorate the prejudice to the Respondents, we also required them to abandon their claims for damages.  Mr Harris indicated to us that his clients accepted this condition.  We therefore granted leave to the Applicants to re-amend their Form 86 accordingly.  For the sake of record, we direct the Applicants to file the re-amended Form 86 within 3 days from the handing down of this judgment. 

30.  After we granted leave to re-amend the Form 86, we asked Mr Yu whether the Respondents wished to put in additional evidence in these appeals.  We granted a short adjournment to facilitate counsel taking instructions from the Respondents.  Subsequently, Mr Yu informed us that in light of our indication that we would only consider the appeals in the context of leave to apply for judicial review, the Respondents were prepared to continue with the appeals on the existing materials.

31.  In light of the concerns as to the deficiency in the re-amendment expressed in the course of arguments, Mr Harris applied for an adjournment to enable him to put in further amendments to the Form 86.  That application was opposed.  Given that, as we had already indicated, we would only be concerned with leave to apply for judicial review, we decided that there should not be any further delay.  If, after hearing submissions, leave is granted in respect of any of these new grounds, it would be up to counsel to apply to the Court of First Instance for leave to further re-amend the Form 86.  Needless to say, we should not pre-empt the decision of the Court of First Instance if such application were to be made.  Thus, we refused a further adjournment.

D.  The proper construction of Section 104A

32.  As we said above, it is necessary to work out the proper construction of Section 104A before we consider the other challenges.  Hence, we start with the question of construction. 

33.  In Section D.3 of the judgment below, the Judge carefully analysed the statutory scheme in Part IX of the Ordinance.  In light of that, we do not need to repeat the same exercise here.  For our purposes, it is sufficient to set out some relevant provisions.

34.  Section 104A(1) is in the following terms:

“ (1) No bill or poster shall be displayed or affixed – ...(b) on any Government land, except with the written permission of the Authority.”

35.  Section 104E contains definitions for Sections 104A, 104B and 104C.  The Director is the Authority in respect of the spots in question in these appeals, see Section 104E(1)(f). 

36.  Section 104E(4) provides:

“ “bill or poster” includes any word, letter, model, sign, placard, board, notice, device or representation and also includes any advertisement painted on any wall, fence, railing, post, rock, road-cutting or tree but does not include any structure, apparatus or hoarding used for the display of a bill or poster.”

37.  There is no definition for “display” in the Ordinance.  But Section 104B imposes a duty to maintain a bill or poster in clean and tidy condition on a person displaying the same.  It reads:

“(1) Where a bill or poster is displayed on any private land or on any Government land, the bill or poster shall be maintained in a clean and tidy condition to the reasonable satisfaction of the Authority.

(2) A person displaying a bill or poster in contravention of subsection (1) commits an offence.

(3) A person prosecuted for an offence under this section shall not be convicted of that offence unless prior to the commencement of the prosecution the Authority served on him a notice in writing informing him of the condition of the bill or poster and warning him that unless the bill or poster is removed within the period specified in the notice (being not less than 24 hours) he may be liable to be prosecuted.”

38.  Section 104C confers the power to remove bills and poster on the Director:

“ (1) Where-

(a) a bill or poster is displayed in contravention of section 104A(1); or

(b) a bill or poster is not maintained in a clean and tidy condition as required under section 104B(1),

the Authority may remove the bill or poster and may recover the cost of removal from the person displaying the bill or poster as a civil debt.”

39.  Mr Harris submitted that on proper construction Section 104A does not apply to a banner used in conjunction with a static demonstration.  Counsel said the words “bill or poster” should be construed as excluding such banners.  Counsel supported his construction by contending that the use of banner in conjunction with demonstration is part of the right of demonstration, a constitutional right protected by Article 27 of the Basic Law [“BL 27”] and BoR 16(2).  By virtue of the principle of construction expounded by Lord Hoffmann in R v Home Secretary, Ex p Simms [2000] 2 AC 115 at p.131F to G (counsel also cited the reference to a similar principle mentioned by Fok PJ in T v Commissioner of Police, supra at §196), the general phrase “bill or poster” is not specific enough to be applied to banner used in static demonstration and Section 104A should be construed as not being applicable to the same. 

40.  In Ex p Simms, supra, Lord Hoffmann said:

“ Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. ...”

41.  On behalf of the Respondents, Mr Yu submitted that the purposes of this statutory scheme include the protection of the cityscape against environmental nuisance, as well as the proper regulation of public resources in terms of the use of public space to disseminate ideas. Counsel referred to section D3.3 of the judgment below where the Judge set out the legitimate aims of the scheme in his discussion on the proportionality of Section 104C.  Mr Yu emphasized the orderly and fair distribution of public resources as an objective which equally applies even if a member of the public wishes to use the public space for dissemination of political ideas in a demonstration. 

42.  At the same time, Mr Yu contended that Section 104A does not apply to mobile demonstration (like the use of banner in a parade) or an occasional demonstration.  Mr Yu submitted that the word “display” in Section 104A must be construed in the context of the whole statutory scheme.  Obviously, the mere wearing of a T-shirt with a slogan printed on it cannot be regarded as the “display” of a poster or bill notwithstanding the very wide definition for “bill or poster”.  In light of the reference to a duty to maintain the bill or poster displayed on Government land in Section 104B and its use in conjunction with the word “affixed” in Section 104A, Mr Yu submitted that “display” for the purpose of that section should carry with it a degree of permanence and habitual regularity.  Thus, Section 104A does not catch the use of banners or placards in a demonstration (whether mobile or static) which does not occupy the same spot with a degree of permanence and habitual regularity. Such an interpretation is consistent with the judgment of the Court of Final Appeal in Yeung May Wan v HKSAR (2005) 8 HKCFAR 137 where the Court of Final Appeal held that the reasonable exercise of right of demonstration on public road cannot constitute obstruction.  At §43 of the judgment (at p.157C), the Court alluded to the relevance of the extent and duration of the activity in assessing whether something done is reasonable.   

43.  Construed in this way, Mr Yu submitted Section 104A is not an absolute prohibition against the exercise of the right of demonstration.  A person only needs to obtain the approval of the Director when he wishes to occupy a spot on some permanent and habitually regular basis.  In that kind of situation, the use of banner, even though it is in association with the exercise of a right of demonstration, will like the display of bill and poster for other purposes attract the legitimate concerns which are addressed by this statutory scheme. 

44.  Mr Yu further submitted that in respect of these statutory objectives, there is no particular reason why special exemption should be conferred on someone who displays a banner simply because he is exercising his right of demonstration.  In terms of the use of banner to disseminate ideas, the right of demonstration can be equated with the freedom of expression.  Freedom of expression is also constitutionally protected and this fundamental right is inevitably engaged when one deals with restriction on the display of bill and poster, irrespective of the message set out in the bill or poster (it could either be a political, commercial, religious or other social message).  Looking the matter from that angle, the legislature must have the restriction on such fundamental rights in mind when it passed the law imposing these restrictions.  

45.  In our judgment, Mr Yu’s construction of these statutory provisions is correct and we agree with his analysis.  The difficulty with Mr Harris’ approach is that counsel read the right of demonstration as a right to conduct demonstration in what he perceived to be a reasonable manner without regard to other legitimate competing interests and concerns.  We agree with the Judge (supported by Mr Yu) that one of the legitimate objectives is the orderly, fair and prioritised allocation of public space for dissemination of ideas.  Without some proper control in place, there would be chaotic scramble for the display of bill or poster.  And there could also be chaotic scramble even in the context of the competing exercise of the right of demonstration by different political or social factions in our society.  The construction of Mr Harris will frustrate one very important objective of this statutory scheme.

46.  Further, we do not regard the wordings of the statute to be too general and unspecific.  The definition for “bill or poster” is indeed wide and all-embracing, and as submitted by Mr Yu, the legislature could not have missed the impact of this scheme on the exercise of freedom of expression and the associated right of demonstration.

47.  For these reasons, we do not see any reasonably arguable case on the construction advocated by Mr Harris and leave should not be granted for this point to be canvassed.

E.  Secretary for Justice v Ocean Technology 

48.  In his judgment, the Judge focused on Section 104C instead of Section 104A.  This was because the actual decisions being challenged in the Form 86 were the decisions to remove the banners and placards and the confiscation of the same.  The Judge relied on the judgment in Secretary for Justice v Ocean Technology [2009] 1 HKC 271 to support his approach and explained at §102:

“ The attack against the constitutionality of section 104A(1)(b) and the Management Scheme comes in the forefront in the applicants’ case on Ground 1. However, all the Decisions were either made directly under or referable to section 104C(1), the enforcement-enabling provision. That being the case, the first and foremost question concerns the constitutionality of section 104C(1) and not section 104A(1)(b) or the Management Scheme. One cannot simply assume that the constitutionality of section 104C(1) is necessarily dependent on the constitutionality of section 104A(1)(b) or the Management Scheme. Whether it is so depends on a proper construction of section 104C(1). If section 104C(1) is free standing, in the sense that it survives constitutional scrutiny regardless of the validity of section 104A(1)(b) and the Management Scheme, then the decisions cannot be impugned on the ground that section 104A(1)(b) and the Management Scheme is unconstitutional. I derive support for this approach from the judgment of the Court of Appeal in Secretary for Justice v Ocean Technology Ltd & Others [2009] 1 HKC 271.”

49.  After referring to Ocean Technology and Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, the Judge identified three questions as questions to be determined at §114:

“ Applying the approach as articulated by the Court of Appeal in Ocean Technology, three questions arise for determination in the present context :

(1) Whether on a proper construction of section 104C(1), the enforcement-enabling provision, the constitutionality of section 104A(1)(b), the permission-seeking provision, and the Management Scheme, is a necessary ingredient that triggers the former’s operation resulting in the Decisions. (Question 1)

(2) If the answer to Question 1 is yes, whether the restrictions imposed by section 104A(1)(b) and the Management Scheme are constitutionally justified.

(3) Even if the answer to Question 1 is “no” or the answer to Question 2 (if arisen) is “yes”, whether the restriction imposed by section 104C(1), the enforcement-enabling provision, is on its own constitutionally justified. (Question 3)”

50.  He determined Question 1 in the negative, see §§116 to 118 of the judgment.  As a result he said it was not necessary for him to determine Question 2.  However, for completeness sake, he also considered Question 2 and determined that Section 104(1)(b) meets the proportionality test, §§119 to 141 of the judgment.  Then the Judge considered the constitutionality of Section 104C on its own and answered Question 3 in the affirmative, §§142 to 148.  

51.  With great respect to the Judge, we do not think the reasoning in Ocean Technology is applicable to the present cases.  Both Ocean Technology and Leung Kwok Hung v HKSAR, supra, are decisions in the context of criminal prosecution of offences.  The courts therefore had to examine the essential ingredients of an offence, which were the only issues that the magistrate exercising criminal jurisdiction should be concerned with.  It is a question of construction of the offence creating provision.  Thus, Stock JA (as he then was) said at §65 in Ocean Technology:

“ ... If the offence-creating provision is free-standing, in the sense that it survives constitutional scrutiny regardless of the validity of the licensing regime and of the licensing decision, then the remaining issues [on the constitutionality of the licensing regime] addressed by the magistrate... were and are irrelevant.”

See also R v Wicks[1998] AC 92, discussed at §§79 to 83 in Ocean Technology.

52.  And His Lordship also noted the argument of the Secretary for Justice at §62:

“ It is argued that the correct and only avenue for [a challenge against the constitutionality of the licensing regime] by an applicant who is refused a licence is an application for judicial review.”

53.  Further, in Ocean Technology, it was accepted that control of airwaves by a ban on broadcasting without a licence was a constitutionally permissible fetter on the freedom of expression, see §§66 to 70 of that judgment.  And this was important for the construction of the relevant statutory provision in that case, see §§91 to 95 of the judgment.    

54.  In contrast, in these appeals, the Applicants challenged by way of judicial review the constitutionality of the statutory scheme under the Ordinance which regulates the display and affixing of bills and posters.  Though the actual decisions which led to the challenge were the decisions to remove the banners, a challenge to the constitutionality of Section 104A is within the scope of the amended Form 86.  Paragraph 5 of the Amended Relief sought a declaration that Section 104A, as read-down for constitutional reasons, does not prohibit, or require approval to be obtained for, reasonable display of banners or placards at moving or static demonstrations.  In the Amended Grounds, paragraphs 50 to 72, 76 to 87 were directed against Section 104A instead of the subsequent decisions to remove the banners under Section 104C.

55.  Unlike the situation in Ocean Technology where licensing for use of airwave was accepted as constitutionally permissible, Mr Harris did not accept that there could be any requirement for approval regarding the display of bills and posters in conjunction with a static demonstration.

56.  In the circumstances of these proceedings, with respect to the judge, we are of the view that it is too narrow to focus on Section 104C and the decisions to remove the banners.  Once it is appreciated that the scope of the applications for judicial review is wider than a challenge to the removal of the banners, the analogy with Ocean Technology ceases. 

57.  Further, as a matter of statutory construction, we do not think Section 104C can be a free-standing provision.  It refers to a bill or poster displayed in contravention of Section 104A(1).  Thus, if the restriction in Section 104A(1) is to be read down for constitutional reason as contended by Mr Harris, there could not be any display of poster in contravention of it by the FLG demonstrators.  In that event, the power to remove the poster under Section 104C would not be engaged.

58.  For these reasons, we beg to differ from the judge on the applicability of Ocean Technology in the present context. As we see it, the constitutionality of Section 104A is the central issue in these appeals and we shall now examine this question.  

F.  ;The constitutional right of demonstration

59.  The Judge discussed the constitutional rights engaged in these proceedings at Section D.1 of the judgment.  We gratefully adopt what he said in that section:

33.  Article 27 of the Basic Law guarantees that:

‘ Hong Kong residents shall have freedom of speech ... of assembly ... and of demonstration ...’

34.  Such freedoms may however be restricted as prescribed by law: see Article 39(2) of the Basic Law.

35.  Article 16(2) of the Hong Kong Bill of Rights protects the freedom of expression thus:

‘ (2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.’

36.  Similarly, the protection is not absolute as Article 16(3) provides :

‘ (3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary-

(a) for respect of the rights or reputations of others; or

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

37.  Article 17 of the Hong Kong Bill of Rights provides that the right of peaceful assembly shall be recognized.  It goes on to deal with restrictions:

‘ 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.’

38.  The freedoms of speech, peaceful assembly and demonstration, protected by Article 27 of the Basic Law, Articles 16 and 17 of the Bill of Rights, are all fundamental rights.  They are precious and lie at the very foundation of Hong Kong as a democratic society.  As the majority of the Court of Final Appeal put it in Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229 :

‘ 2. These freedoms are of cardinal importance for the stability and progress of society for a number of inter-related reasons. The resolution of conflicts, tensions and problems through open dialogue and debate is of the essence of a democratic society. These freedoms enable such dialogue and debate to take place and ensure their vigour. A democratic society is one where the market place of ideas must thrive. These freedoms enable citizens to voice criticisms, air grievances and seek redress. This is relevant not only to institutions exercising powers of government but also to organizations outside the public sector which in modern times have tremendous influence over the lives of citizens. Minority views may be disagreeable, unpopular, distasteful or even offensive to others. But tolerance is a hallmark of a pluralistic society. Through the exercise of these freedoms minority views can be properly ventilated.’

39.  Although these fundamental rights are not absolute, they are jealously protected by our courts. As the Court of Final Appeal said, the courts must give those fundamental rights a generous interpretation so as to give individuals its full measure.  At the same time, the courts must narrowly interpret restrictions of such fundamental rights.  The burden rests with the Government to justify any restriction.  In considering if the Government has discharged its heavy burden, the courts must be vigilant in the protection of fundamental rights and must rigorously examine any restriction that may be placed on them.  See Leung Kwok Hung, supra, at §16.”

60.  The constitutional right of demonstration has to be exercised reasonably and it can be subject to restraint by the law.  Thus, in Yeung May Wan v HKSAR, supra, the Court of Final Appeal accepted that the exercise of the right to demonstrate must not cause an obstruction exceeding the bounds of what is reasonable in the circumstances, see §44 of the judgment.     

61.  In other words, the manner in which a right of demonstration is to be exercised may be subject to other proportionate statutory or common law restraints serving other public interests like the preservation of public order and public safety: see Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556 at §§50 to 58.  In T v Commissioner of Police, supra, the Court of Final Appeal reiterated that the right of demonstration and freedom of expression are not absolute: see §§2, 136-137, 143, 314.

62.  As the Judge observed, the restraints imposed by law have to be justified.  At Section D.2, the judge considered the two-tier public law requirements for these restrictions: (1) they must be prescribed by law; and (2) they must satisfy the proportionality test.

63.  The “prescribed by law” requirement is mandated by BL39(2) and BoR 16(3).  It was discussed in Ocean Technology at §§107 to 110 and in the recent judgment in Hong Kong Television Network Ltd v Chief Executive in Council CACV 111 of 2015, 6 April 2016, §§83 to 100. 

64.  The proportionality test is a well established public law concept in Hong Kong.  In the context of the right of demonstration, the permissible scope of legitimate aims is defined by BoR 16(3) in terms of what is “necessary in a democratic society in the interest 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”.  Once the legitimate aims are established, the restriction must also satisfy two other limbs in the proportionality test: (a) it must be rationally connected with the legitimate aims; and (b) the restriction must be no more than is necessary to accomplish the legitimate aims.  In the application of the proportionality test, our courts recognize that there could be a reasonable range of options and in the enactment of statutory restraints the legislature has a discretionary judgment to make.  See the discussion in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2015] 5 HKLRD 881.  

65.  Further, as illustrated by the discussion on constitutionality in T v Commissioner of Police, supra, in the judgment of Ribeiro PJ (with whom the Chief Justice and, on this aspect of the case, Lord Neuberger also agreed), particularly in comparing the position of buskers with a public event of a larger scale, there could be overlapping layers of restraints catering for different needs in the safeguard of public order and safety.         

66.  As mentioned above, the Judge had examined Section 104A against the proportionality test at §§119 to 141 of the judgment. However, since there was no effective challenge based on the “prescribed by law” ground before him, he did not address that question in the context of Section 104A.  For reasons already canvassed, we exceptionally permitted Mr Harris to advance such challenge before us.  As we said earlier, the contents of the discretionary consideration in an application for approval under Section 104A is relevant in the assessment of proportionality.  The prior question is whether the contents of such discretion are adequately set out in a manner which could satisfy the “prescribed by law” requirement.  We shall therefore address the “prescribed by law” requirement before we turn to proportionality. But before we do so, Mr Yu has made a preliminary objection which we need to examine at this juncture.  

G.  Can there be a challenge against the constitutionality of Section 104A when there had not been any application for approval?

67.  Neither the Applicants nor any other members of FLG had made any applications for approval under Section 104A though there had been enquiries.  In the course of his submissions, Mr Yu contended in light of that, the court should not examine whether approval would have been given if such applications were to be made.

68.  Subject to what we shall say below, we agree that without any specific application being made, the court cannot consider an application for judicial review by projecting what would have happened if there had been an application. 

69.  However, as accepted by Mr Yu, there are instances where the court entertains an application for judicial review even though the issue was in a sense raised in abstract.  In Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at §20, Ma CJHC (as he then was) examined the relevant discretionary considerations for deciding whether the court should entertain such application.  As observed by His Lordship, in the sphere of public law, when the duties of public bodies fall to be exercised on a continuing basis and a large number of similar cases exist or can arise in the future, the court may find that there is a good reason in the public interest to address the issue though strictly speaking there is no longer any lis between the immediate parties before the court.

70.  In Leung v Secretary for Justice [2006] 4 HKLRD 211, the court considered the constitutionality of section 118C of the Crimes Ordinance when the applicant had neither been prosecuted nor subject to any decision by a public body in respect of that section.  Notwithstanding so the court found in that case the applicant had sufficient standing to bring the challenge.  In light of the number of persons in the same position as the applicant and the question raised was of significant public interest and could be determined without any need to make finding of fact, the court held that an exceptional case had been made out for the challenge to be entertained.  Ma CJHC said at §30(4):

“ Where the constitutionality of laws ... is involved, the court should be more eager to deal with the matter. Put bluntly, if a law is unconstitutional, the sooner this is discovered, the better.”

71.  Mr Yu properly accepted that systemic constitutional challenge in terms of the proportionality of Section 104A could be brought by the Applicants notwithstanding that no application for approval had been made.

72.  We do not see any material difference in this regard in respect of a systemic challenge (as opposed to an isolated challenge based on the facts of a particular application) stemming from the “prescribed by law” requirement.  As we shall elaborate below, the intended challenge by Mr Harris in the present case is in respect of the lack of certainty on the criteria for approval under Section 104A and lack of accessibility of such criteria.  The section itself appears to give an absolute discretion to the Director. 

73.  Further, on the facts of the present appeals, it is not a situation where there is no lis between the parties.  The right of the Director to remove the banners is very much in issue and it hinges on the constitutionality of Section 104A (and whether it has to be read down as a result of the assessment on constitutionality).  We were also told that there are criminal prosecutions pending the outcome of these applications for judicial review (though we are not sure if the Applicants are defendants in those proceedings).  In any event, the Applicants had sufficient interest to mount the challenge.

74.  The “prescribed by law” aspect is as important as the proportionality aspect in the constitutional challenge and both are issues of general public importance.  It can hardly be disputed that the criteria set out in Leung v Secretary for Justice, supra, are satisfied. 

75.  We cannot see how the absence of application for approval can be a hurdle to the court’s consideration of these systemic challenges if the relevant materials could be properly and adequately placed before the court.

H.  Prescribed by law

76.  Turning now to the newly added challenge that the scheme for approval does not meet the “prescribed by law” requirement, we are mindful that due to the belated application for amendment of the Form 86, the Director did not have any opportunity to put forward the relevant evidence pertaining to this issue.  As mentioned, despite such handicap Mr Yu did not ask for an adjournment to put in further evidence to resist the appeal against refusal of leave.  Counsel was content to advance arguments against the grant of leave on existing materials.  Having said that, it does not mean that the Director would not file further evidence if we decide to grant leave. 

77.  Having heard and considered the submissions of Mr Harris and Mr Yu, we decide that we should grant leave for this line of argument to be canvassed by way judicial review and we would remit the cases to the Court of First Instance.  In light of our decision and the possibility of further evidence being filed, we shall be very brief in our reasons on this aspect.

78.  Section 104A does not give any guidance on how the power on granting or withholding permission should be exercised.  Mr Yu took us through the objectives of the statutory scheme, the provisions in the Management Scheme (discussed by the Judge at Section 3.2 of the judgment) and the common law requirement of proportionality as part of the underlying legal context in which the power must be exercised.  He asked us to read the Management Scheme in the light of the evidence of the Assistant Director of the Lands Department on the genesis of the Management Scheme.  Counsel submitted that if the discretion is exercised by reference to factors other than those relevant to the objectives of the Ordinance or if it is applied in a disproportionate manner, the court can intervene.  He also asked us to regard the provisions in the Management Scheme as giving sufficient guidelines on how similar discretion would be exercised in respect of lands or spots not covered by the Management Scheme.  He submitted that the requirement of seeking approval is not disproportionate.   

79.  With respect, whilst there is some force in these submissions, we are not persuaded by Mr Yu that the challenge by Mr Harris is not reasonably arguable.

80.  We shall come to the question of proportionality later but we can say immediately that we do not regard the mere fact that approval is required is disproportionate.  There are many authorities showing that when such measure is introduced with legitimate aims safeguarding public interest, a requirement to obtain prior approval can be a justifiable restriction on the freedom of expression, T v Commissioner of Police, supra, at §§125 to 128 where Ribeiro PJ discussed section 4(15) of the Summary Offences Ordinance as adequate control over buskers; Butler v Derby City Council [2006] 1 WLR 1346; Mouvement Raelien Suisse v Switzerland (2013) 56 EHRR 14; R (Core Issues Trust) v Transport for London  [2014] EWCA Civ 34.

81.  But it is reasonably arguable (and we put it no higher than that) that the “prescribed by law” requirement is not satisfied by a potential organizer simply being told that approval is required under Section 104A.  An important facet of this requirement is that a norm must be formulated with sufficient precision to enable a citizen to regulate his conduct so that he is able, with legal advice if necessary, to foresee the consequences which a course of action will entail, see Sunday Times v United Kingdom (1979-80) 2 EHRR 245 at §49; Secretary for Justice v Ocean Technology Ltd, supra, §107.  In Ocean Technology at §108, Stock JA said:

“ ... as an aspect of the principle of contextual and reasonable certainty, that where the law confers a discretion upon a public official to exercise a power, that law must indicate the scope of that discretion with clarity ...”

And His Lordship’s reference to Glas Nadezhda Eood v Bulgaria [2007] 24 BHRC 239 in that paragraph is arguably applicable in the present context. 

82.  Notwithstanding the efforts of Mr Yu, we are of the view that it is reasonably arguable (again we put it no higher than that) that the existing framework for approval does not meet this requirement.  Handicapped by the way in which the argument was developed, Mr Yu understandably could not tell us whether the conditions for approval would be more stringent or more relaxed in respect of spots not managed by the Lands Department.  On the existing materials, we do not know to what extent approval would be granted or withheld by reference to the contents of the poster or bill and the criteria to be applied in vetting the contents (if they are relevant).  The Director may address these issues in the evidence to be filed.

83.  Since we are only considering the matter in the context of leave without any assurance that all material information is before us, we should not say more than what is necessary.  It suffices for us to state that we are satisfied that the Applicants meet the Chan Po Fun threshold in this respect.

I.  Proportionality

84.  It is fair to say that the focus of the proportionality argument had been shifted.  In the court below, and even in the written skeleton submissions before us, Mr Harris attacked the proportionality of Section 104A by reference to its requirement for prior approval.  That was how the Judge understood his argument and at §§119 to 141 of the judgment he explained why he rejected Mr Harris’ argument. 

85.  As we said above, we agree with the Judge that the mere fact that approval is required for display of posters and bills used in conjunction with a demonstration does not render Section 104A unconstitutional.

86.  However, with the addition of a challenge based on the “prescribed by law” requirement, the contents of the discretion in the approval process assumed a greater emphasis and significance in the application of the proportionality test.  It is reasonably arguable that the outcome on the application of proportionality test would be different if the discretion is exercised solely by reference considerations like road safety and streetscape, fair and equal allocation of public space for dissemination of information, as compared with the situation where the discretion is exercised in a manner which amounts in substance to censorship on materials that could be displayed in public.  There is no suggestion in the materials before us that the latter is the case in the application of the statutory scheme in Hong Kong.  We only make this comparison to demonstrate the relevance of the criteria and procedure for approval in the context of proportionality.

87.  Based on the provisions in the Management Scheme, Mr Harris submitted that approval for non-designated spots would likewise involve examination of the content of the banners.  Though content-screening is not per se unjustifiable (see R (Core Issues Trust) v Transport for London [2014] EWCA Civ 34), whether it is proportionate will depend on the criteria to be applied for screening.  We do not have adequate evidence in this regard at the moment.  On the existing materials, based on the provisions in the Management Scheme it is reasonably arguable that FLG’s members could not obtain approval for the display of their banners.    

88.  The Amended Form 86 did not advance a clear challenge in this regard though there were some references to the inadequacies of the Management Scheme.  As a result, we are not satisfied that all relevant evidence on the processing of applications for approval in respect of display at spots other than those managed by the Lands Department under the management scheme is before us. 

89.  In the circumstances, though we are in agreement with the Judge on his analysis on proportionality as argued before him, the Judge had not focused on the new argument on proportionality.  With the new focus, we are satisfied that on existing materials the argument on proportionality is reasonably arguable. Thus, we shall also grant leave for this ground to be canvassed.

J.  Ground 2: Beatty v Gillbanks

90.  The Applicants contended that the true reason for the decisions to remove the FLG banners was the activities of the Hong Kong Youth Care [“HKYC”] who conducted hostile demonstrations in the vicinity of FLG demonstrators.  Mr Harris drew an analogy with the situation in Beatty v Gillbanks (1882) 9 QBD 308 and submitted it was impermissible to impose the restriction in Section 104A on FLG demonstrators because of the disruptions caused by HKYC.

91.  The Judge addressed this ground at §§150 and 151 of the judgment.

92.  In our judgment, no analogy could be drawn with the situation in Beatty v Gillbanks, supra.  In that case, the appellants conducted their assembly in a lawful manner.  In contrast, if Section 104A is constitutionally valid, the Applicants and FLG had conducted their demonstrations in an unlawful manner.

93.  The constitutionality of Section 104A is to be determined by the two questions discussed above: whether it is prescribed by law and proportionate.  If it is constitutionally valid, the display of banners by FLG was as objectionable as the display of banners by HKYC.  There is no justification for prescribing that the Director should only take enforcement actions against HKYC but not against FLG.

94.  There is no merit in this ground.  The Judge was correct in refusing leave for this ground to be canvassed.

K.  Ground 3: discrimination

95.  The discrimination ground was advanced by Mr Harris by reference to paragraphs 35 and 36 of the Operational Guidelines.  They were addressed by the Judge at §§153 to 156 of the judgment.

96.  In light of the proper construction of Section 104A as discussed in Section D above, it does not apply to mobile demonstration, or to the display of bill or poster on a pole in the course of a mobile demonstration or an occasional demonstration is not caught by the scheme.  In that respect, paragraph 35 of the Operational Guidelines should be amended.

97.  As explained in Section D above, different considerations apply in respect of static demonstration taking place at the same spot with a substantial degree of permanence on a habitually regular basis.  This criterion applies to the display of banners whether they are affixed to a wall or mounted on a placard or being held by persons by hands (though the last one is an unlikely scenario given the requirement of substantial degree of permanence).

98.  Viewed thus, we cannot see how the Disability Discrimination Ordinance, Sex Discrimination Ordinance or Article 22 of the Bill of Rights can be engaged.

99.  The Judge was correct in holding that this ground is wholly misconceived.

L.  Ground 4: legitimate expectation

100.  The Judge considered the legitimate expectation argument of the Applicants at §§157 to 160 of the judgment.  Mr Harris submitted that the Judge failed to address implied expectation of meaningful consultation arising from a long course of practice in not seizing demonstrators’ banners under Section 104C.

101.  We agree with Mr Yu’s submission that irrespective of the inaction in the past, there was no promise or representation.  Also, there could not be any legitimate expectation after the prior notices given in April 2013 (see §22 of the judgment) before actual enforcement actions were taken.

102.  Further, there cannot be any legitimate expectation that the law would not be enforced: R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 1115. 

103.  This ground is not reasonably arguable and the Judge was correct in refusing leave.

M.  Disposition

104.  For the reasons given, we uphold the Judge on his refusal of leave on the arguments run before him.  However we shall allow the appeal on the basis of the new arguments raised belatedly before us and grant leave to the Applicants to apply for judicial review on the two grounds set out in Sections H and I above.  As indicated earlier, we direct the Applicants to file the re-amended Form 86 within 3 days from the handing down of this judgment.  As we have now decided to grant leave on limited grounds only, the Originating Summons to be issued under Order 53 Rule 5 should reflect the limited scope for debate in the substantive applications for judicial review.

105.  As for costs, in light of our reasons above for granting leave, we make a costs order nisi as follows:

(a)  We would not disturb the costs order of the Judge;

(b)  In respect of the costs of the appeal, since the Applicants would not succeed in obtaining leave but for our indulgence granted on the first day of hearing to permit the new arguments to be run at a very late stage, we order the Applicants to pay 75% of the costs of the appeal, such costs are to be taxed if not agreed;

(c)  The Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.

106.  Mr Harris is anxious that the matter shall proceed expeditiously.  We direct the parties to take out an appointment with a judge of the Court of First Instance within 14 days from the handing down of this judgment seeking directions for the future conduct of the applications for judicial review.

107.  Lastly, we thank counsel for their assistance.