HKSAR v. Fong Kwok Shan, Christine

FAMC No. 29 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 29 OF 2016 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 666 OF 2015)

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BETWEEN

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DETERMINATION

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Mr Justice Ribeiro PJ :

1.After dismissing the applicant’s appeal, Wong J (HCMA 666/2015, 14 September 2016) certified the following questions as raising points of law of great and general importance, namely:

(1) “Whether the enactment of section 11 of the Administrative Instructions for Regulating Admittance and Conduct of Persons pursuant to section 20(b) of the Legislative Council (Powers and Privileges) Ordinance (Cap 382) is inconsistent with the principle of freedom of speech guaranteed by article 27 of the Basic Law and article 16 of the Bill of Rights, which rendered section 11 unconstitutional?

(2) “The same question ... in respect of section 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Persons.”

2.We are satisfied that these questions are of sufficiently great and general importance to merit leave and that they are reasonably arguable.  We therefore grant leave to appeal on those questions.

3.We note that the learned Judge’s view was that the question of reasonable arguability would only arise before the Appeal Committee.  With respect, that is incorrect.  Before certifying a question as being of the requisite importance, an intermediate appellate court is required to be satisfied that the question is reasonably arguable.

4.We refuse leave to appeal on the substantial and grave injustice basis.  In other words, while the true construction of section 11 of the Ordinance is within the grant of leave, the factual issues raised in paragraphs 60 and following of the applicant’s submissions are not.

5.The hearing will take place on a date to be fixed.

Mr Hectar Pun SC, Mr Harrison Cheung and Mr Anson Wong Yu Yat, instructed by Y. S. Lau & Partners, assigned by the Director of Legal Aid, for the Applicant

Mr Andrew Li SPP, of the Department of Justice, for the Respondent