Lai Man Lok v. Director of Home Affairs

HCAL 183/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 183 OF 2013

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J U D G M E N T

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INTRODUCTION

1.By his Originating Summons dated 22 April 2014, the Applicant applied for judicial review of the decision of the Director of Home Affairs (“the Director”) made on 1 October 2013 –

“directing, permitting, allowing or acquiescing to the security personnel of the HKCEC[1] and/or other unidentifiable persons to remove the Applicant by using force against him at the Ceremony[2] at the Square[3], on the ground that the Applicant entered a wrong viewing area” (“the Decision”),

leave to make the application having been granted by Au J on 22 April 2015 on the grounds as set out in the Applicant’s Amended Form 86 dated 10 April 2015.

2.Two main issues arise for determination in this judgment:-

(1)   whether there was violation of the Applicant’s right to the freedom of the person; and

(2)   whether there was violation of the Applicant’s rights to the freedom of expression, assembly and demonstration.

BAsic FACTS

3.At the hearing on 18 January 2017, the parties submitted a statement of agreed facts prepared for the purpose of the present application.  The following narrative is based on that statement.

4.A flat raising ceremony (“the Ceremony”) to celebrate the founding of the People’s Republic of China was held on 1 October 2013 at the seafront promenade of the Hong Kong Convention and Exhibition Centre (“HKCEC”) near the Golden Bauhinia Statue (“the Venue”).  Since 1997, a flat raising ceremony has been held at the Venue on the anniversary of the establishment of the HKSAR on 1 July and on the National Day on 1 October each year.

5.The Venue consisted of public roadways and several parcels of land allocated and/or leased to various Government Departments and private entities, but the Home Affairs Department (“HAD”) obtained permission so that it would have exclusive use of the Venue on 1 October 2013 for 12 hours from 0000 hours to 1200 hours and for the purpose of the Ceremony.

6.Four separate viewing areas were demarcated, viz: the “Invited Guest Area”, the “Uniformed Groups Area”, the “Community Groups Viewing Area” and the “Public Viewing Area”.

7.On 1 October 2013, the Applicant went to the Venue.  He and his colleagues from Scholarism (including Mr Joshua Wong) joined the queue at the junction of` Convention Avenue and Expo Drive East.  They specifically indicated to the HAD staff present that they were only planning to silently raise high the hand gesture of “universal nomination” during the playing of the National Anthem and it was on that basis that the HAD staff allowed them into the Venue.

8.The Applicant and Mr Joshua Wong somehow went to the Community Groups Viewing Area.  While Mr Joshua Wong was being interviewed by the Television Broadcasts news reporter, the Applicant and Mr Joshua Wong were told by the HAD staff and security personnel that they should return to the Public Viewing Area.  They also offered to escort the Applicant and Mr Joshua Wong back to the Public Viewing Area.

9.The Applicant did not return to the Public Viewing Area.

10.The HAD staff and security personnel tried to remove the Applicant from the Community Groups Viewing Area and to bring him to the Public Viewing Area by dragging and hauling with force.  They managed to remove the Applicant to the edge of the Community Groups Viewing Area but failed to remove him to the Public Viewing Area.  The Applicant remained in the edge of the Community Groups Viewing Area when the Ceremony began.

11.During the playing of the National Anthem, the Applicant made the hand gesture he had planned to make.

12.The entire episode lasted around 30 minutes.

13.The Applicant has confirmed in his 3^rd affirmation (at paragraph 29) that his purpose for attending the Ceremony was to “raise high the hand gesture of ‘universal nomination’ silently during national anthem” and that “[t]here [was] no purpose for [them] to reach the purported Community Groups Viewing Area at all”.

14.At the hearing on 18 January 2017, I was informed by Mr Jeffrey Tam (appearing for the Applicant) and Mr Victor Dawes SC (appearing, together with Mr Anthony Chan, for the Director) that there was one factual matter which the parties could not reach agreement on, namely, whether the force used by the HAD staff and security personnel in trying to remove the Applicant from the Community Groups Viewing Area and to bring him to the Public Viewing Area was “reasonable”. For the purpose of resolving that issue, I was invited to view two video clips of the incident recorded by United Social Press (as contained in a DVD disc produced as an exhibit to the Applicant’s 2^nd affirmation) and formed my own conclusion based on those video clips.  This I have done.  I shall come back to the issue of whether the force used was reasonable later in this judgment.

GROUNDS OF JUDICIAL REVIEW

15.As can be seen from the draft Amended Form 86, four grounds are advanced in support of the present application for judicial review, namely:-

(1)   The Decision did not satisfy the “prescribed by law” requirement under Article 39(2) of the Basic Law (“BL”).

(2)   The Decision violated the Applicant’s right to the freedom of the person as guaranteed by BL 28.

(3)   The Decision violated the Applicant’s rights to the freedom of expression, peaceful assembly and demonstration guaranteed by (i) BL 27, (ii) Article 16 of the Hong Kong Bill of Rights (“BOR”)/Article 19 of the International Covenant on Civil and Political Rights (“ICCPR”), and (iii) BOR 17/ICCPR 21.

(4)   The Decision was Wednesbury unreasonable. As indicated in paragraph 63 of the skeleton submissions of Mr Tam dated 9 January 2017, this ground is no longer relied upon by the Applicant in the present application.

16.There are, as I see it, effectively only two grounds of review.  This is because the first ground, which is based on BL 39(2), does not give rise to any independent ground of review.  BL 39(2) states as follows:-

“The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law…”

17.It is clear that BL 39(2) does not confer any substantive right or freedom on Hong Kong residents.  Rather, it provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless such restriction satisfies the “prescribed by law” requirement.  In other words, before BL 39(2) can have application in any given case, one must first identify some particular right or freedom which has been, or is sought to be, restricted.

18.Accordingly, the two questions which require determination in this judgment are:-

(1)   whether there was violation of the Applicant’s right to the freedom of the person; and

(2)   whether there was violation of the Applicant’s rights to the freedom of expression, peaceful assembly and demonstration.

THE DIRECTOR WAS ENTITLED AT COMMON LAW TO USE REASONABLE FORCE TO REMOVE THE APPLICANT FROM THE COMMUNITY GROUPS VIEWING AREA

19.As explained by Mr Wong Kiu Fong, Chief Liaison Officer in the Special Duties Team of the HAD, the Venue was divided into four separate viewing areas:

(1)   The “Invited Guests Area” was a restricted-access seating area for guests with prior invitations only.

(2)   The “Uniformed Groups Area” was a restricted-access standing zone for invited members of 11 uniformed groups subsidized by the Home Affairs Bureau as well as members of the Auxiliary Medical Services and the Civil Aid Services.

(3)   The “Community Groups Viewing Area” was also a restricted-access standing zone for community groups invited by the District Offices.  A total of 800 guests, drawn from schools, women associations and elderly service centres, were invited.

(4)   The “Public Viewing Area” was a standing zone for members of the general public who had not received any prior invitations but who wished to attend the Ceremony. The area had a capacity for 1,000 people.

20.The four viewing areas were distinct and separated from one another.  In particular, the routes leading to the Community Groups Viewing Area and the Public Viewing Area were different and separated by mill barriers.  The Public Viewing Area also had a different entrance point (at the junction of Convention Avenue and Expo Drive East) separate from that leading to the Community Groups Viewing Area.

21.Irrespective of how the Applicant and Mr Joshua Wong managed to get into the Community Groups Viewing Area in the morning on 1 October 2013 and whether, at the time of entry, they knew they had no right or permission to enter and remain in the Community Groups Viewing Area, it is not in dispute that, shortly before the commencement of the Ceremony: (i) they were told by the HAD staff and security personnel to leave the Community Groups Viewing Area and return to the Public Viewing Area, and (ii) they refused to do so.

22.It is, in my view, clear that the Applicant and Mr Joshua Wong knew, prior to force being used by the HAD staff and security personnel to seek to remove them from the Community Groups Viewing Area, that they had no right or permission to remain in the Community Groups Viewing Area, and they refused to leave the Community Groups Viewing Area voluntarily despite being asked to do so.  In short, the Applicant was in the position of a “trespasser”.

23.There were two bases at common law which entitled the Director to use reasonable force to remove the Applicant from the Community Groups Viewing Area.

24.First, the Director, through the HAD staff and security personnel, was entitled to exercise “self-help” to remove the Applicant, as trespasser, from the Community Groups Viewing Area using no more force than was reasonably necessary for that purpose.  In McPhail v Persons, Names Unknown [1973] Ch 447, at 456D-457B, Lord Denning MR explained the relevant principles in the following passages:-

“Now I would say this at once about squatters. The owner is not obliged to go to the courts to obtain possession. He is entitled, if he so desires, to take the remedy into his own hands. He can go in himself and turn them out without the aid of the courts of law. This is not a course to be recommended because of the disturbance which might follow. But the legality of it is beyond question. The squatters were themselves guilty of the offence of forcible entry contrary to the Statute of 1381 (4 Ric. 2, stat. 1, c. 7). When they broke in, they entered ‘with strong hand’ which the statute forbids. They were not only guilty of a criminal offence. They were guilty of a civil wrong. They were trespassers when they entered, and they continued to be trespassers so long as they remained there. The owner never acquiesced in their presence there. So the trespassers never gained possession. The owner, being entitled to possession, was entitled forcibly to turn them out: see Browne v. Dawson (1840) 12 Ad. & El. 624. As Sir Frederick Pollock put it in his book on Torts

‘A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner’: see Pollock on Torts, 15th ed. (1951), p. 292.

Even though the owner himself should use force, then so long as he uses no more force than is reasonably necessary, he is not himself liable either criminally or civilly. He is not liable criminally (1) because it was said in the old times that none of the statutes of forcible entry apply to the expulsion by the owner of a tenant at will (see Anonymous (1670) 1 Vent. 89; Rex v. Dorny (1700) 1 Salk 260; Rex v. Bathurst (1755) Say. 225); but, even if this is no longer true, (2) in any case the statutes only apply to the expulsion of one who is in possession: see Reg. v. Child (1846) 2 Cox C.C. 102. They do not apply to the expulsion of a trespasser who has no possession. The owner was not civilly liable because the owner is entitled to turn out a trespasser using force, no more than is reasonably necessary: see Hemmings v. Stoke Poges Golf Club [1920] 1 K.B. 720.”

25.Second, when the HAD staff and security personnel sought to remove the Applicant from the Community Groups Viewing Area, they were carrying out their lawful duties, which included preventing trespassing and generally maintaining order and security.  They were entitled to exercise “self-help” to prevent unlawful obstruction of due execution of their duties using no more than reasonable force necessary for that purpose.  In R v Chief Constable of Devon and Cornwall, ex p Central Electricity Generating Board [1982] 1 QB 458, Lord Denning MR said at 470G-H: “Every person who is prevented from carrying out his lawful pursuits is entitled to use self-help, so as to prevent any unlawful obstruction… He must, of course, not use more force than is reasonably necessary; but there is no doubt whatever that he can use force to do it”; see also 478F-G per Templeman LJ (as he then was).

THE FORCE USED BY THE HAD STAFF AND SECURITY PERSONNEL IN TRYING TO REMOVE THE APPLICANT FROM THE COMMUNITY GROUPS VIEWING AREA WAS REASONABLE IN ALL THE CIRCUMSTANCES

26.As earlier mentioned, there was no agreement on whether the force that was used by the HAD staff and security personnel in seeking to remove the Applicant from the Community Groups Viewing Area was “reasonable”.  I was invited to form my view on this issue by watching two video clips of the incident recorded by United Social Press, which I have done.  Neither Mr Tam nor Mr Dawes made any further oral submissions at the hearing on this issue.

27.From the video clips of the incident, one can see, as one would expect, that there was some dragging and hauling of the Applicant by the HAD staff and security personnel when seeking to remove him from the Community Groups Viewing Area.  When considering the question of whether the force used was reasonable, it is relevant to take into account the following matters:-

(1)   The use of force was for the purpose of removing two young men from what was plainly a very crowded space.

(2)   The Applicant and Mr Joshua Wong were determined to obstruct or resist their removal by the HAD staff and security personnel, and kept shouting and verbally provoking them.

(3)   The Applicant did not, apparently, suffer any injury.

28.From the video clips, I consider it to be clear that the HAD staff and security personnel in fact exercised very considerable restraint even though they were provoked by the Applicant and Mr Joshua Wong.  The allegation that the HAD staff and security personnel used unreasonable force to remove the Applicant and Mr Joshua Wong from the Community Groups Viewing Area cannot be any further away from the truth and is, in my view, a complete travesty of the fact.  I conclude that the force that was used was no more than what was reasonably necessary to remove the Applicant from the Community Groups Viewing Area in the circumstances.  As it was, the HAD staff and security personnel only managed to remove the Applicant to the edge of the Community Groups Viewing Area when the Ceremony began.

NO VIOLATION OF THE APPLICANT’S RIGHT TO THE FREEDOM OF THE PERSON

29.BL 28 states as follows:-

“(1) The freedom of the person of Hong Kong residents shall be inviolable.

(2) No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.  Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited…”

30.In this case, the court is not concerned with arrest, detention or imprisonment, or search of the body, or deprivation of the freedom of the person, but with restriction of the freedom of the person.  In Wong Tze Yam v Commissioner of Police (No 2) [2011] 3 HKLRD 369, the police carried out a licence check and anti-crime operation in a disco in Tsimshatsui, and did not allow the complainant or any other patrons to leave the premises for about half an hour while the police were conducting the operation.  It was held that the complainant was not subject to arrest, detention or imprisonment under BL 28, nor deprivation of his liberty as the element of coercion did not clearly exist.  It was, however, held that his freedom of the person was subject to “restriction” within the terms of BL 28 (see paragraph 25 per Kwan JA, with whom the other members of the Court of Appeal agreed).  It is important to note, though, that the complainant in that case was otherwise lawfully entitled to go to and leave the disco at any time.

31.It cannot, in my view, seriously be argued that the right to the freedom of the person as guaranteed by BL 28 permits or allows (i) a person who otherwise has no right or permission to enter or remain in a property to do so despite the owner’s objection, or to be immune from action taken to remove him from the property which does not go beyond the use of reasonable force necessary to effect the removal, or (ii) a person to resist or obstruct the due execution of lawful duties by public officers.

32.In this case, the Applicant had no lawful right to remain in the Community Groups Viewing Area.  I do not consider that there was “restriction of the freedom” of the Applicant when all that the HAD staff and security personnel sought to do was simply to remove him from that area using no more than reasonable force. 

33.In any event, what is prohibited by BL 28 is “arbitrary” or “unlawful” restriction of the freedom of the person.  BL 28 does not confer on Hong Kong residents a right to absolute freedom of the person.  In Wong Tze Yam v Commissioner of Police (No 2), Kwan JA expressed agreement with the analysis of Jeremy Poon J (as he then was) in another case involving the same complainant (Wong Tze Yam v Commissioner of Police [2009] 5 HKLRD 836) regarding the meaning of the words “arbitrary” and “unlawful” in BOR 14/ICCPR 17 (which prohibits arbitrary or unlawful interference with privacy, family, home or correspondence):

“30 As for the ‘unreasonable/arbitrary or unlawful interference’ requirement, the term “unlawful” means that no interference can take place except as envisaged by the law, and that the legislation in question must comply with the provisions, aims and objectives of the ICCPR: see The International Covenant on Civil and Political Rights, Cases, Materials and Commentary, at paragraph 16.0815. The aim of sections 54 and 10(b) of the Police Force Ordinance is to prevent and detect crimes, but those provisions also govern the use of the relevant police powers. This type of provisions, which seek to strike a balance between the need to maintain peace and order and the need to guard against the abuse of police powers, is indispensable in a civilized region such as Hong Kong. The provisions in question are certainly in compliance with the provisions, aims and objectives of the ICCPR.

31 As for ‘unreasonable/arbitrary’, the term means that the interference in question must be reasonable in the particular circumstances of a given case, and reasonableness implies that any interference must be proportional to the end sought and be used for the sole purpose of achieving that end: see The International Covenant on Civil and Political Rights, Cases, Materials and Commentary, at paragraph 16.1216…”

34.Kwan JA further held that the above analysis was equally applicable to the identical words used in BL 28 (see paragraph 34 of her judgment in Wong Tze Yam v Commissioner of Police (No 2)).

35.When considering the issues of lawfulness, reasonableness and proportionality, the following matters are also relevant:-

(1)   The Ceremony to celebrate the founding of the People’s Republic of China was, and was meant to be, a solemn and dignified occasion.

(2)   The Ceremony involved the raising of the National Flag and the playing of the National Anthem for which due respect ought to be shown.

(3)   The actual Ceremony was scheduled to commence and complete within a very tight time frame, in particular –

(a)   By 7:50 am, the Masters of Ceremony would remind all guests to take seat.

(b)   By 7:55 am, the Chief Executive would take his seat.

(c)   By 7:58 am, the flat raisers would take their position behind the flat poles.  The Masters of Ceremony would announce the commencement of the Ceremony and would ask all to raise at 7:58:30 am.

(d)   By 7:58:45 am, all guests were expected to stand in solemn silence.  The National Anthem would be played and the National Flag and the Regional Flag would be raised starting at 7:59:15 am.

(e)   By 8:00 am, the National Flag and the Regional Flag would be fully raised.

In other words, time was of the essence.

(4)   The HAD had the exclusive use of the whole of the Venue, but permitted different groups of persons to enter the four viewing areas to view the Ceremony.

(5)   The HAD was entitled to adopt reasonable measures for safety, security and crowd control purposes.

(6)   The Applicant had no permission, and knew that he had no permission, to remain in the Community Groups Viewing Area prior to force being used to seek to remove him from that area.

(7)   The Applicant refused to leave the Community Groups Viewing Area voluntarily despite being asked to do so.

(8)   There were at that time some harsh comments and verbal abuse directed at the Applicant and Mr Joshua Wong by some onlookers present at the Community Groups Viewing Area (including calling them “trouble makers” and “rubbish”), which could potentially escalate into a wider or more serious conflict.  It was justifiable for the HAD staff to take prompt action to prevent escalation of the conflict.

(9)   The force used by the HAD staff and security personnel was, as earlier mentioned, no more than what was reasonably necessary for the purpose of seeking to remove the Applicant and Mr Joshua Wong from the Community Groups Viewing Area.

36.Overall, if there was any restriction of the Applicant’s freedom of the person under BL 28 (which, as earlier mentioned, I do not accept), the restriction in the circumstances of this case was, in my view, lawful, reasonable and proportional.

37.Insofar as BL 39(2) is concerned, as earlier mentioned, it provides that: “[t]he rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law…”.  The meaning of the “prescribed by law” requirement is well settled – the relevant law, covering both statute and unwritten law (including common law), must be certain and accessible (see Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005, at paragraphs 84 to 88 per Cheung CJHC).  Questions concerning the requisite level of certainty of the relevant law for the purpose of the “prescribed by law” requirement do not arise in the present case, and I do not propose to examine the authorities mentioned by the Chief Judge of the High Court in those paragraphs which discussed this issue.  It is, in my view, clear that the common law principle of “self-help”, which permits no more than reasonable force to be used to remove a trespasser and to prevent unlawful obstruction of due execution of duties, is both “certain” and “accessible”.

38.In all, I find that there was no restriction of the Applicant’s freedom of the person under BL 28 and therefore his right under that article was not engaged. In any event, if there was a restriction of his right to the freedom of the person under BL 28 in the present case, such restriction was neither “arbitrary” nor “unlawful”.  It also satisfied the “prescribed by law” requirement.  On either view, there was no violation of the Applicant’s right to the freedom of the person under BL 28.

No violation of the applicant’s rights to the freedom of expression, assembly and demonstration

39.The following rights are relied upon by the Applicant:-

(1)   BL 27:-

“Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration…”

(2)   BOR 16/ICCPR 19:-

“(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.

(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.”

(3)   BOR 17/ICCPR 21:-

“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.”

40.There are two reasons why I consider that there was no violation of the Applicant’s rights to the freedom of expression, assembly and demonstration.  First, I accept Mr Dawes’ submission that, properly analysed, no such rights of the Applicant were engaged on the facts of the present case.

41.It is clear law that, notwithstanding the importance of the rights to the freedom of expression, assembly and demonstration, they do not entail a freedom of the forum for the exercise of such rights.  In Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556, Lam JA analysed the relevant authorities and stated the following:-

“48 In HKSAR v Au Kwok Kuen [2010] 3 HKLRD 371, A Cheung J (as he then was) held that the right of peaceful assembly and the right to freedom of expression stopped at the boundary of private residential property belonging to others in the absence of any permission to enter. His Lordship came to that conclusion after a careful and detail analysis of the other provisions in the Basic Law, the HKBoR and the duty and power of the police and the relevant overseas jurisprudence on the right to demonstrate. His Lordship left open the question as to how section 18 would be applied in the context of an assembly or demonstration which took place at premises of a public nature as it was not necessary to address the point on the facts of that case. But what His Lordship said at para 52 may have a wider application,

‘… In my view, in Hong Kong, notwithstanding the acknowledged importance of the right of peaceful assembly and the right to freedom of expression, neither the provisions in the Basic Law nor those in the Hong Kong Bill of Rights bestow any freedom of forum for the exercise of those rights….’

49 A Cheung J briefly referred to the exercise of the right of assembly in public places or places of a public character at paras 38 to 41. He distinguished Police v Beggs [1999] 3 NZLR 615, a case where a protest took place in Parliament grounds and the New Zealand High Court applied a test of reasonableness to determine whether the eviction process was consistent with the right of peaceful assembly protected by the New Zealand Bill of Rights. As can be seen from the discussion in the judgment in Au Kwok Kuen of overseas cases, there is a spectrum in terms of the character of a place: private residential property, private commercial building, large shopping mall or shopping centre where the public had been invited to congregate freely and as such can be said to have acquired a public character, buildings used by the Government which are not open to the public, buildings used by the Government which are open to the public only upon application (as in the case of the Parliament grounds in Beggs) and Government buildings or premises which are generally open to the public without any application. Different considerations apply with regard to different places in this spectrum. It is not simply a dichotomy between public places and private properties.

66 … First, as discussed above, whether a person is entitled to demonstrate at a place without the permission of its owner does not simply depend on a dichotomy between private premises and public premises. There is a wide spectrum and even in premises which can be said to have a public character within the spectrum there is no absolute right to enter for the purpose of demonstration. Even for premises with a public character, one must consider whether it is a premises generally open to the public and if there are restrictions, what those restrictions are, and what are the objectives for those restrictions. The right of a property owner, including governmental agencies, to set conditions for the use of his property is an exercise of his proprietary right. As underscored in Au Kwok Kuen, this right is constitutionally protected although in the case of a government premises generally open to the public, the restriction may have to be justified as necessary and proportionate in order to be consistent with the government’s positive duty to enable lawful assemblies to take place peacefully.

67   In the case of a government premises not generally open to the public, there is no right of access to demonstrate at such premises.  The positive duty on the part of the government is a duty to enable lawful assemblies to take place.  I can find nothing in the judgment of the Court of Final Appeal in Leung Kwok Hung v HKSAR, supra which remotely suggests that such duty can be elided into a duty to open all government premises for demonstration.  Protesters who entered into premises not generally open to the public are not exercising their right of assembly lawfully.”

42.In the present case, although the Venue was made up of what normally would be public roadways and parcels of land allocated and/or leased to various Government Departments and private entities, at the material time (ie between 0000 hours to 1200 hours on 1 October 2013) the HAD had the right to the exclusive use of, and control over access to, the Venue for the purpose of the Ceremony. The HAD was entitled to give permission to any particular person to enter and remain in the Venue, and likewise to withdraw such permission at any time.  At the material time, the Venue was not premises generally open to the public but was more like private premises.  There was no right of access by the Applicant to assemble or demonstrate at the Community Groups Viewing Area.

43.In my view, BL 27 and BORs 16 and 17 can, and should, be read as conferring on the Applicant rights to express, assemble and demonstrate lawfully.  They cannot, and should not, be read as authorising the Applicant to exercise those rights in an unlawful manner or by unlawful means.  In the present case, the Applicant was not exercising his rights to the freedom of expression, assembly or demonstration lawfully at the Community Groups Viewing Area in which he had no right or permission to remain.

44.Furthermore, it is an agreed fact that all that the Applicant and Mr Joshua Wong wanted to do, as they indicated to the HAD staff present at the time of entry to the Venue, was to silently raise the hand gesture of “universal nomination” during the time when the National Anthem was played, and it was on that basis that the HAD staff allowed them into the Venue.  It was no part of their request to perform the hand gesture at any particular area inside the Venue.  In fact, the Applicant has confirmed in his affirmation that it was not his “purpose” to go to the Community Groups Viewing Area.  At no time did the HAD staff and security personnel prohibit the Applicant and Mr Joshua Wong from performing any hand gesture during the Ceremony.  What the HAD staff and security personnel were trying to do was merely to remove the Applicant and Mr Joshua Wong from the Community Groups Viewing Area in which they had no right or permission to remain.  Had the Applicant and Mr Joshua Wong complied with the request of the HAD staff and security personnel to leave the Community Groups Viewing Area peacefully, they could have returned to the Public Viewing Area and performed the hand gesture in any manner and form that they wanted.  As a result of their obstruction or resistance to their removal, the HAD staff and security personnel could only manage to remove the Applicant and Mr Joshua Wong to the edge of the Community Groups Viewing Area when the Ceremony began. Significantly, during the playing of the National Anthem, the Applicant did, as a matter of fact, made the hand gesture as he had planned to do.

45.Overall, I consider that the Applicant’s rights to the freedom of expression, assembly and demonstration were not engaged, or restricted by the Decision.

46.Second, even if the Applicant’s rights to the freedom of expression, assembly and demonstration were engaged and restricted by the Decision, it is trite that those rights were not absolute.  BORs 16 and 17 expressly provide for restriction of the relevant rights, while the rights under BL 27, although not subject to any express qualification, may be impinged by laws if they pass the proportionality test (see T v Commissioner of Police (2014) 17 HKCFAR 593, at paragraphs 136 and 137 per Ribeiro PJ).

47.When considering the issue of proportionality, the following matters are relevant:-

(1)   At the Venue, there were thousands of people being aggregated in a relatively small area for the purpose of viewing the Ceremony.  The HAD was plainly entitled to take reasonable measures to ensure the safety of the participants and for crowd-control purposes.

(2)   In view of some harsh comments and verbal abuse being directed at the Applicant and Mr Joshua Wong by some onlookers present at the Community Groups Viewing Area, the HAD staff was justifiably concerned that the situation could potentially escalate into a wider or more serious conflict.  Removing the Applicant (and Mr Joshua Wong) from the Community Groups Viewing Area was, in the circumstances, a reasonable safety measure to take to prevent escalation of the conflict.

(3)   Furthermore, as earlier mentioned, the Ceremony to celebrate the founding of the People’s Republic of China was, and was meant to be, a solemn and dignified occasion.

(4)   The Ceremony was a form of assembly.  The right of other participants to attend the Ceremony in a solemn, dignified and peaceful manner was also entitled to protection under BL 27 and BOR 17.  The HAD was entitled to take reasonable measures to protect such right of the other participants from improper interference or disturbance, which could result from an escalation of the verbal conflict mentioned above.  

(5)   There were five other designated “Public Activity Areas” around the vicinity of Convention Avenue and Harbour Road for members of the public to hold public meetings and assemblies there.

(6)   It has not been suggested that it would make any real or material difference for the Applicant to perform the hand gesture which he wanted to do at the Community Groups Viewing Area or the Public Viewing Area.

48.I pause to observe that there is sometimes a tendency, whenever a constitutional challenge is being raised by a person against a decision made by the Government or other public authorities, to focus solely on the constitutional rights of that person without regard, or sufficient regard, being paid to the rest of the public whose constitutional rights may well also be engaged and are equally entitled to protection.  In a pluralistic society that Hong Kong is, the proper exercise of one’s rights must have regard to the rights of others, including the right to hold different views.  And when the court is being asked to judge whether there has been infringement or violation of that person’s constitutional rights, particularly in the context of any proportionality analysis, it must take into account the rights of all members of the public and strike a proper balance amongst their competing rights.

49.In the circumstances of this case, if the Applicant’s rights to the freedom of expression, assembly and demonstration were engaged and restricted by the Decision, I consider the restriction to be reasonable and proportional.  For reasons explained above, it also satisfied the “prescribed by law” requirement under BL 39(2).

50.In all, I find that there was no violation of the Applicant’s rights to the freedom of expression, assembly and demonstration.

DISPOSITION

51.For the forgoing reasons, I dismiss the Applicant’s Originating Summons.

52.The present application for judicial review is, in my view, completely without merits.  The antics of the Applicant on 1 October 2013 have achieved nothing except to create a case which has been litigated at great expense to the public.  I make an order nisi that the Applicant shall pay the costs of the Director, to be taxed on an indemnity basis if not agreed, with certificate for 2 counsel (notwithstanding the fact that the Applicant obtained leave to apply for judicial review).  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.

53.Lastly, I thank counsel for their assistance rendered to the court.

Mr Jeffrey Tam, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the Applicant

Mr Victor Dawes, SC and Mr Anthony Chan, instructed by Department of Justice, for the Respondent