Read the full judgment text of CACV 219/2014 and CACV 220/2014 on BabelCite. This Court of Appeal judgment was delivered on 6 June 2016 before Cheung CJHC, Lam VP, Barma JA.
Constitutional law – freedom of demonstration – freedom of expression – statutory interpretation – right of judicial review – Public Health and Municipal Services Ordinance (Cap 132) Part IX, sections 104A, 104B, 104C, 104E – requirement of written permission from Authority to display bills or posters on Government land – banners used in Falun Gong static demonstrations on Government land open to public – whether Section 104A is constitutionally valid – whether 'prescribed by law' requirement under Basic Law Article 39(2) and Hong Kong Bill of Rights Article 16(3) is satisfied – whether proportionality test is satisfied – Court of Appeal's role in appeals against refusal of leave in rolled-up hearings in judicial review – whether leave to re-amend Form 86 to raise new arguments should be granted – whether Secretary for Justice v Ocean Technology [2009] 1 HKC 271 approach applies in judicial review context – whether Beatty v Gillbanks (1882) 9 QBD 308 analogy applies – discrimination claim – legitimate expectation claim – whether absence of prior application for approval bars constitutional challenge – The Applicants are Falun Gong practitioners who displayed banners in static demonstrations on Government land open to the public. The Director of Food and Environmental Hygiene removed their materials under Section 104C on the basis they were displayed without the written permission required by Section 104A. The Applicants sought leave to apply for judicial review to read down the statutory scheme. Poon J refused leave after a rolled-up hearing. The Applicants appealed out of time and obtained an extension. The Court of Appeal held: (1) on proper construction, Section 104A applies to bills and posters displayed with a degree of permanence and habitual regularity, including banners used in static demonstrations; (2) the Secretary for Justice v Ocean Technology approach focusing on the enforcement-enabling provision does not apply in judicial review proceedings; (3) systemic constitutional challenges to Section 104A can proceed even without prior application for approval; (4) leave is granted on the 'prescribed by law' ground as reasonably arguable that Section 104A's framework does not give sufficient guidance on how the discretion to grant or withhold permission should be exercised; (5) leave is granted on the proportionality ground as reasonably arguable that outcome might differ depending on the criteria for approval, with possible content-screening implications; (6) the Beatty v Gillbanks analogy does not apply; (7) the discrimination ground is wholly misconceived; (8) the legitimate expectation ground is not reasonably arguable. The Court of Appeal upheld the Judge's refusal of leave on the original arguments but granted leave on the two new grounds and remitted the cases to the Court of First Instance. Applicants required to abandon damages claims as condition. Costs: Applicants to pay 75% of appeal costs, with directions for further conduct.
Legal issues: Role of Court of Appeal in appeals against refusal of leave in rolled-up hearings · Leave to re-amend Form 86 to raise new arguments on construction and prescribed by law · Proper construction of Section 104A regarding banners used in static demonstrations · Applicability of Secretary for Justice v Ocean Technology approach · Standing to challenge constitutionality of Section 104A without prior application for approval · Whether Section 104A meets the 'prescribed by law' requirement · Whether Section 104A satisfies the proportionality test · Beatty v Gillbanks analogy for restrictions on FLG demonstrators · Discrimination ground based on Operational Guidelines · Legitimate expectation ground
Outcome: The Court of Appeal upheld the Judge's refusal of leave on the arguments run before him, but allowed the appeal on the basis of new arguments raised belatedly and granted leave to the Applicants to apply for judicial review on two grounds: (1) whether Section 104A meets the 'prescribed by law' requirement, and (2) whether Section 104A satisfies the proportionality test. The cases were remitted to the Court of First Instance.
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