HKSAR v. Fong Kwok Shan Christine
Read the full judgment text of FACC 2/2017 on BabelCite. This Court of Final Appeal judgment was delivered on 4 October 2017 before Chief Justice Ma, Ribeiro PJ, Fok PJ, Chan NPJ, Lord Neuberger of Abbotsbury NPJ.
Criminal law – constitutional law – freedom of expression – freedom of assembly – Legislative Council – public gallery – Administrative Instructions – proportionality – Basic Law – Hong Kong Bill of Rights – appeal against conviction – 'rights not applicable' argument – 'non-intervention' argument – 'prescribed by law' argument – 'blanket prohibition' argument – fundamental rights not trumped by property rights – location as intrinsic dimension of right – purposive construction – ordre public The appellant, a member of the Sai Kung District Council, was convicted of two offences under the Legislative Council (Powers and Privileges) Ordinance (Cap 382) for her conduct during meetings of LegCo's Public Works Subcommittee discussing the extension of the South-East New Territories landfill. At the first meeting on 7 May 2014, she removed her jacket to display a T-shirt bearing 'Defend Tseung Kwan O' and her assistant held a poster depicting a Nazi swastika with characters meaning 'Poison Gas Concentration Camp – Landfill' against the public gallery glass, causing a commotion in which a security guard sustained bruising. At the second meeting on 13 May 2014, the appellant and others chanted opposing slogans and linked arms to resist ejectment, causing the meeting to be reconvened in a different room with the public excluded. She challenged the constitutional validity of Administrative Instructions (AI) sections 11 and 12 as infringing her right of freedom of expression under BL 27 and BOR 16. The Court of Final Appeal unanimously dismissed the appeal. First, on the 'rights not applicable' argument, the Court rejected the contention that freedom of expression is presumptively excluded from government premises, holding that property rights of LegCo cannot trump fundamental rights and that the location of expression is an intrinsic dimension of the right. The proper approach is to focus on the right itself and assess any restriction by proportionality analysis, recognising that denial of access is a restriction requiring constitutional justification. The 'hard line' and intermediate forms of the argument based on Committee for the Commonwealth of Canada v Canada were rejected; per BL 8, fundamental rights cannot be subjugated to property interests. On private property, while restrictions on access to homes and residential premises carry very substantial weight, the position on commercial properties such as shopping malls could in an exceptional case result in invalidity (Appleby v United Kingdom). Second, on the 'non-intervention' argument, the Court held that regulation of strangers within LegCo precincts falls outside LegCo's internal management and the principle yields to constitutional requirements where a criminal offence is at stake (Leung Kwok Hung v President of LegCo (No 1)). Third, on the 'prescribed by law' argument, the Court held AI section 11, properly construed in its statutory context aimed at creating a secure and dignified environment, is sufficiently certain; the authorities in Steel v UK, Hashman v UK, Lau Wai Wo, and Brooker v Police were distinguishable as they concerned conduct at large without such contextual framework. Fourth, on the 'blanket prohibition' argument, the Court held AI section 12, properly construed purposively, does not create a blanket prohibition but targets displays risking disorder in public galleries and is a valid, proportionate restriction serving the legitimate aims of protecting the rights of others and maintaining public order and ordre public. Conviction upheld; appeal dismissed; fines of $1,000 on each charge remain.
Legal issues: Whether freedom of expression is engaged in LegCo public gallery · Whether non-intervention principle bars constitutional review · Whether AI section 11 is sufficiently prescribed by law · Whether AI section 12 is a valid proportionate restriction
Outcome: Appeal dismissed; conviction upheld
Cited by 42 cases · Cites 16 cases
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FACC No. 2 of 2017 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 2 OF 2017 (CRIMINAL) (ON APPEAL FROM HCMA NO. 666 OF 2015) ____________ BETWEEN
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___________________________ JUDGMENT ___________________________ Chief Justice Ma: 1.I agree with the judgment of Mr Justice Ribeiro PJ. Mr Justice Ribeiro PJ: 2.In this appeal, which arises out of demonstrations mounted in a public gallery during sittings of a subcommittee of the Legislative Council (“LegCo”), the validity of two Administrative Instructions regulating admittance to and conduct within LegCo’s precincts is challenged on the basis that they infringe the right to freedom of expression. A. The relevant events 3.The facts are not in dispute. The appellant was a member of the Sai Kung District Council. Together with two of her assistants[1] and several others, she attended meetings of LegCo’s Public Works Subcommittee held on 7 and 13 May 2014 respectively when a project for extending the South-East New Territories landfill was discussed. It was a project which she and fellow residents strongly opposed. 4.On each occasion, she was admitted to the public gallery above Conference Room 1 in the LegCo complex where the meeting was being held. At the first meeting, she removed her jacket so that the characters 保衛將軍澳 (“Defend Tseung Kwan O”) were displayed on the T-shirt that she was wearing. She also handed to Cheung Mei-hung, one of her assistants, a paper poster depicting a Nazi Swastika with the characters 毒氣集中營 – 堆填區 (“Poison Gas Concentration Camp – Landfill”) which he displayed by holding it against the glass panel which walled off the public gallery above the conference room. This led to a commotion as security guards sought to seize the sign, leading to one guard sustaining bruising on her left wrist. The incident caused the Subcommittee’s meeting to be prematurely adjourned. 5.At the second meeting, the appellant and several others in the public gallery chanted slogans opposing the project, causing the Subcommittee’s chairman to warn them that they would be ejected if they did not stop. As the warnings were ignored and as the appellant and others linked arms to resist ejectment, the meeting was stood down and reconvened in a different conference room about an hour later with the public excluded from attendance.[2] B. The charges and the decisions below 6.Section 8 of the Legislative Council (Powers and Privileges) Ordinance (“LCPPO”)[3] regulates the admittance of persons to the LegCo complex. Section 8(3) provides that the President may:
7.By LCPPO section 20(b), contravention of such an administrative instruction or any direction given thereunder is made an offence punishable by a fine of $2,000 and imprisonment for 3 months. 8.Pursuant to section 8(3), the President issued the Administrative Instructions for Regulating Admittance and Conduct of Person[4] (“Administrative Instructions”) which include the following provisions which are under challenge:
9.The appellant was charged jointly with Cheung Mei-hung with contravening AI section 12(1) at the 7 May 2014 meeting of the Subcommittee “in that they displayed sign and message in the public gallery”. They were also charged with contravening AI section 11 at the 13 May 2014 meeting “in that they failed to behave in an orderly manner within the precincts of the Chamber of the Legislative Council”. 10.The appellant was convicted after trial by the Magistrate[5] and fined $1,000 on each charge. Her appeal was dismissed by Wong J[6] who certified the following questions, reflecting the appellant’s constitutional challenge, as raising points of law of great and general importance, namely:
11.Leave to appeal was granted by the Appeal Committee on the basis of the questions so certified.[7] C. The constitutional provisions 12.Article 27 of the Basic Law (“BL 27”),[8] on which the certified questions are based, states: Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike. 13.By BL 39, the Basic Law relevantly provides:
14.As is well-established,[9] the Hong Kong Bill of Rights Ordinance (“HKBORO”)[10] which enacts the Hong Kong Bill of Rights, implements the International Covenant on Civil and Political Rights (“ICCPR”) so that the Bill of Rights is given constitutional status by BL 39. Article 16 of the Bill of Rights (“BOR 16”) provides:
15.This Court has held[11] that there is no difference between the right of peaceful assembly guaranteed by BL 27 and that provided for in BOR 17.[12] The same applies to freedom of speech under BL 27 and freedom of expression under BOR 16. The Court has also noted[13] that the rights to freedom of expression, of public assembly and of procession and demonstration are closely related, making the case-law on these associated freedoms collectively relevant. 16.Accordingly, by the combined effect of BL 39 and BOR 16, if any purported restriction on the right of free expression is to be valid, it must have sufficient legal certainty to qualify as a restriction “prescribed by law”[14] and must be “necessary for respect of the rights or reputations of others; or for the protection of national security or of public order (ordre public), or of public health or morals.” It is established that the requirement of necessity involves the application of a proportionality test[15] and that the objectives listed in BOR 16 are exhaustive of purposes qualifying as legitimate aims to justify a purported restriction of the guaranteed right.[16] D. The issues in this appeal 17.The issues raised by Mr Hectar Pun SC[17] fall within a relatively narrow compass. 18.On the charge relating to the first incident, he submits that “the total and blanket prohibition imposed by section 12(1) of the Administrative Instructions on the display of any ‘sign, message or banner’ in a press or public gallery in the LegCo fails to satisfy the third stage of the proportionality test.” He argues that the only legitimate purpose said to be pursued by AI section 12 is the protection of public order within the LegCo building and that “by ... rendering all forms of display of any ‘sign, message or banner’ a criminal offence regardless of its purpose, nature, manner and its impact (if any) on the public order in the LegCo”, the section is unjustifiably wide.[18] He invites the Court to hold that AI section 12 is inconsistent with BL 27 and BOR 16 and thus unconstitutional. I shall call this the “blanket prohibition” argument. 19.As to the charge relating to the second incident, the appellant’s argument is that AI section 11 is invalid as a restriction on the guaranteed right because it is legally uncertain and does not constitute a restriction “prescribed by law”. Mr Pun SC submits that the section’s requirement for one to “ ‘behave in an orderly manner’ ... leaves a person entering or within the precincts of the Chamber of the LegCo unclear precisely what he must avoid doing in order to avoid committing a criminal offence under section 20(b) of the LCPPO”.[19] I shall call this the “prescribed by law” argument. Mr Pun SC contends that the Judge wrongly treated the relevant offence as having as one of its elements, a failure to comply with a direction given by an officer of the Council – an erroneous approach based on a misconstruction of AI section 11 and postulating an offence with which the appellant was never charged. 20.In response, Ms Anna Lai SC[20] begins by raising an important basic issue. She submits that members of the public, including the appellant, “do not have a right to exercise their freedom of expression in the public gallery” of LegCo so that “the constitutional challenges fail in limine.”[21] This involves the proposition, by analogy (so it is argued) with decisions relating to demonstrations sought to be mounted on private property, that there is “no freedom of forum” and that the right to freedom of expression does not apply if sought to be exercised on government premises to which the general public has not been given free access.[22] The contention is that on such properties, the guaranteed right simply does not arise so that there is no room for examining the aim, rationality or proportionality of the restriction. I shall call this the “rights not applicable” argument. 21.In the alternative, Ms Lai SC submits that if the right is engaged, the restrictions imposed by AI sections 11 and 12 are sufficiently certain and satisfy the test of proportionality, so that they are constitutionally valid. This responds to Mr Pun SC’s blanket prohibition argument and also to his prescribed by law argument. 22.Another issue raised by Ms Lai SC (although said to be “by no means determinative of the issue”[23]) involves the submission that regulation of the admittance and conduct of persons within the precincts of LegCo is an internal matter for the legislature so that, applying self-restraint in accordance with the non-intervention principle, the Court should refrain from interfering. I shall call this the “non-intervention” argument. E. The “rights not applicable” argument E.1 The nature and basis of the argument 23.Since it involves the submission that the constitutional challenge fails in limine, I shall deal first with the “rights not applicable” argument. 24.Ms Lai SC submits that the right of free expression is not engaged in the present case because members of the public are not given free access to the LegCo complex and because those that are allowed in only enter subject to restrictions on their conduct. Since LegCo, in common with the Government in relation to government-owned properties, is entitled to exercise its property rights so as to deny or restrict access to the LegCo complex, no one (so it is argued) can assert a right to be admitted and if admitted, no one can object to restrictions being placed on their conduct by invoking the right to freedom of expression. 25.This argument was accepted by Wong J who held: “Members of the public do not have the right to demonstrate in the Legislative Council Building, especially when meetings are in session. Having regard to the principle discussed in paragraphs 23 and 24 of this judgment,[24] I take the view that the rights the appellants mentioned have not been infringed. Neither the Basic Law nor the Bill of Rights gives members of the public the freedom to exercise such rights inside the Legislative Council Chamber, especially when they in fact do not have the absolute right to enter the Chamber.”[25] 26.A similar argument was made in the Canadian Supreme Court in Committee for the Commonwealth of Canada v Canada,[26] a case in which the respondents had been distributing leaflets and engaging passers-by in discussion of the respondents’ political aims in the state-owned passenger terminal of Montreal’s Dorval Airport. The question was whether the respondents were entitled to rely on the right of free expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms[27] so as to require the government to justify restricting their canvassing activities in accordance with section 1 of the Charter.[28] 27.One line of argument which is echoed by Wong J’s judgment and the respondent’s submissions, is what L'Heureux-Dubé J called the “hard line” taken by the Canadian Government in that case, “submitting that as owner of property, the government has the right to exclude whomever it wants, and to impose conditions on invitees to its property without limitation by the Charter”.[29] As McLachlin J explained, the Government’s position was that:
28.In my view, for the following reasons, the “rights not applicable” argument cannot be accepted. E.2 Fundamental rights not trumped by property rights 29.The argument takes as its premise the existence of an entitlement on the part of the Government (or LegCo in this case) as property owner to exclude the public. It reasons from that premise to the conclusion that the guaranteed right of freedom of expression is excluded. It therefore subjugates a fundamental constitutional right to property interests, leaving the applicability or otherwise of that right to the unfettered choice of a Government agency regarding the grant of access. 30.Such an argument is, in my view, wrong in principle. As BL 8 makes clear,[31] an existing statutory or common law rule which comes into conflict with a constitutional requirement must give way. The “rights not applicable” argument inverts this principle. 31.For similar reasons, the Canadian Government’s “hard line” argument in the Montreal Airport case did not find favour with any of the judges. As Lamer CJ put it: “... the government’s right of ownership cannot of itself authorize an infringement of the freedom guaranteed by section 2(b) of the Charter.”[32] And as McLachlin J stated: “To accept the Crown's argument would be to restrict the freedom guaranteed by the Charter to limits much narrower than those with which it has traditionally been associated. Little would remain of the right. ... the state's property interest in a forum does not give it the absolute right to control expression on that forum.”[33] E.3 Other attempts at a priori exclusion of guaranteed rights 32.Examples can be found, including in Committee for the Commonwealth of Canada v Canada,[34] where judges have endeavoured to develop an intermediate doctrine for screening out the application of the right to free expression on some, but not all, state-owned properties by virtue of the state’s right as property owner to deny access. It is not, with respect, an attractive line to follow since it shares the flaws afflicting the “hard line” argument in respect of excluded properties and because major difficulties arise in trying to draw a definitional line between the two categories of properties. 33.Thus, Lamer CJ proposed a rule based on compatibility of the exercise of free expression with the function of the state-owned property in question:
34.However, as McLachlin J pointed out, the appropriateness of this test may be questioned because of difficulties with the uncertain and relative concepts of “function” and “incompatibility”:[36]
35.The test which her Honour proposed for “defining what types of government property should prima facie be regarded as constitutionally available for forums for public expression”[37] was to require the claimant to:
36.With respect, I do not think that is a test that could or should be adopted in Hong Kong. BL 27 and BOR 16 guarantee the right to freedom of expression subject only to the specified permitted restrictions. It would not be appropriate for our courts to place hurdles in the way of a person claiming those rights where such rights are factually engaged, by requiring such person to show that the content, manner and form of the proposed expression promote the matters identified as the underlying purposes of free expression. As indicated in the discussion which follows, rather than imposing a burden on the claimant to prove that the proposed expression qualifies for constitutional protection, the burden is rightfully placed on the government to prove that its limitation of the guaranteed right is justified. 37.It also seems to me that an official trying to decide whether access to a venue should be granted or denied will find it hard to know beforehand whether the intended demonstration will meet the somewhat amorphous criteria articulated. Moreover, the criteria themselves appear debatable. It is well-established that, subject to permissible limitations, freedom of expression extends to views which may be “disagreeable, unpopular, distasteful or even offensive to others”.[40] It is unclear whether the suggested criteria accommodate the expression of such views. 38.What the two approaches just discussed have in common is a search for some a priori basis for dis-applying fundamental rights on state-owned properties, without ever proceeding to examine whether exclusion of the right is justified in terms of the legitimacy and proportionality of such restriction. I think that a more orthodox approach is preferable. E.4 Focussing on fundamental rights 39.In my view, the correct starting-point and the proper focus throughout is on the guaranteed right, adopting the assumption that it is universally applicable, subject to any constitutionally valid restriction. Thus, where the right to freedom of expression is invoked, one asks whether factually, that right is engaged. If so, the question becomes whether any restriction which purports to limit its exercise is valid, that is, whether it pursues a legitimate aim which falls within one of the permitted categories listed in BOR 16; and if so, whether it is rationally connected with accomplishing that aim; whether the restriction is no more than reasonably necessary for accomplishing that purpose; and whether a reasonable balance has been struck between the societal benefits of the encroaching measure on the one hand and the inroads made into the guaranteed right on the other.[41] 40.A person exercising the right to free expression or the related freedoms of peaceful assembly, demonstration and procession has choices. As BOR 16 recognizes, communication may be made “orally, in writing or in print, in the form of art, or through any other media of his choice”. If the expression is communicated using the postal service or by transmissions in the traditional media or by internet postings, no physical activity on the ground may be involved. But where the choice is to exercise the right through seeking, receiving or imparting information or ideas in some physical location, the exercise will have various physical and temporal dimensions. Choices will be made (amongst other matters) as to when, where, by whom, in what form and for what duration the exercise of the freedom will take place. 41.That the right inherently involves various dimensions in its exercise was recognized in a series of English cases involving demonstrations which took the form of tented encampments on prominent or symbolically important sites. One such case[42] involved the Aldermaston Women’s Peace Camp which had been going for some 23 years as a protest against nuclear weapons, with the women assembling on one weekend of each month on government land close to a weapons establishment. Laws LJ held that in some cases, including the case at hand:
42.Another such case is Mayor of London v Hall,[44] which involved a demonstration by protesters who had, for over two months, set up a camp in Parliament Square Gardens bounded by the Palace of Westminster, Westminster Abbey and the United Kingdom Supreme Court. Lord Neuberger of Abbotsbury MR noted the importance of recognizing that the manner and location of the protest was part and parcel of the exercise of free expression:
43.His Lordship favoured the approach which is espoused in this judgment, namely, treating the rights as generally available and then subjecting the validity of particular restrictions to scrutiny. As Lord Neuberger MR put it:
44.In my view, a coherent analysis of the issues arising where access to property is denied to would-be protesters is facilitated by recognizing that the right of free expression encompasses as one of its dimensions, the location of its exercise. If access to that place is denied, such denial is properly viewed as a restriction imposed on the exercise of the right so that the legitimacy, rationality and proportionality of that restriction fall to be considered. This involves applying established constitutional principles for determining when fundamental rights may validly be limited, without being diverted towards a doctrine involving an a priori or presumptive exclusion of such rights on the basis of a property owner’s interests in the proposed venue. 45.A rule presumptively excluding free expression at certain types of venues is too blunt an instrument. A proportionality analysis, on the other hand, enables the court to take into account the dimensions of any particular exercise of such rights and the exigencies of the intended venue. 46.A restriction may, for instance, be disproportionate in relation to a silent, orderly demonstration mounted by a limited number of protesters displaying placards for a few hours without unduly inconveniencing other members of the public. But the same restriction may be entirely justified in respect of a demonstration conducted in a manner or taking a form which is much more intrusive, affecting the rights of others or posing risks to public order, ordre public, or public health and morals, especially where more acceptable alternatives are open to the protesters. It was by application of a proportionality analysis, weighing up the manner, form and impact of each of the demonstrations at the sites concerned, that the English courts distinguished between the Aldermaston camp[47] (which was held entitled to continue) on the one hand and the much more invasive camps in Parliament Square[48] and around St Paul’s Cathedral[49] (which were held to have been justifiably curtailed) on the other. 47.As Lord Neuberger MR stated in The Mayor Commonalty and Citizens of London v Samede,[50] the case involving the camp around St Paul’s Cathedral:
E.5 “Obvious cases” for restricting rights 48.There are many locations in which, as a matter of common sense, one would think it obvious that demonstrations and similar exercises of free expression should be excluded. One might therefore be tempted to conclude that there ought to be some principle excluding in limine engagement of the right in such places. 49.Such views can be found in Committee for the Commonwealth of Canada v Canada,[51] where, for instance, L'Heureux-Dubé J stated:
50.Similarly, McLachlin J was of the view that:
51.The examples given are all compelling and one can readily accept that in the vast majority of such cases, one would rapidly conclude that outsiders cannot validly assert a constitutional right to speak or demonstrate in such locations. However, the proper conclusion to draw in those cases is that the right to freedom of expression may validly be restricted and not that the Court should accept a presumptive rule excluding engagement of the right in limine,carrying with it the objections of principle and problems of definition that have been discussed above. A proportionality approach enables individualised and nuanced assessments and caters for the possibility that in exceptional circumstances such rights might be engaged even in such ostensibly improbable places. 52.Prisons are a good example. One might be inclined to think it obvious that for security reasons, demonstrations (say, against prison conditions) cannot be allowed to be mounted by outsiders within the precincts of a prison. However, other forms of exercising the right to free expression and other fundamental rights may have an important role to play. While prisoners necessarily forfeit their right to personal liberty as a consequence of their lawfully-imposed incarceration, the European Court of Human Rights (“ECtHR”) has held that generally, they otherwise continue to enjoy all the fundamental rights and freedoms subject to restrictions justified on principles of proportionality.[54] Absolute and non-derogable rights against torture and cruel, inhuman or degrading treatment or punishment which do not raise proportionality issues clearly remain applicable.[55] The Court of First Instance has held that the right to vote under BL 26 continues to apply and that a blanket exclusion of that right, regardless of the nature and gravity of the offence, the length and type of sentence, etc, is invalid as a disproportionate restriction of that right.[56] Similarly, the right to confidential legal advice under BL 35 may also be expected to persist, subject to proportionate limitations, within prison precincts.[57] 53.This approach is in principle applicable to the right of free expression. To take a hypothetical example, if the system of visits by Justices of the Peace,[58] traditionally designed to inspect prison conditions and to allow prisoners to air their grievances, were to be abolished and the JPs denied access, a challenge might well be made on the basis that such denial infringes the prisoners’ and the visiting JPs’ rights to freedom of expression so that the validity of the restriction would have to be assessed on the basis of proportionality. 54.Within the framework of restrictions permitted under BOR 16, the principle of proportionality presents a coherent basis for judging whether and to what extent guaranteed rights may be excluded or limited in prisons or similarly restrictive locations. In the vast majority of “obvious cases”, exclusions or limitations of rights, especially rights sought to be exercised in forms incompatible with the maintenance of public order or ordre public,will be upheld as necessary and proportionate. But the proportionality principle permits flexibility to be retained. A presumptive exclusionary rule is ill‑suited to the task. E.6 Private property 55.The discussion so far has concerned the exercise of free expression on government-owned property. Is the position different regarding private property? As this did not receive full argument, my remarks must be taken to be tentative and subject to possible adjustment in a future case. But some discussion is merited here because the respondent seeks to derive support for the “rights not applicable” argument from what is said to be the analogous position regarding private property rights. It is therefore relevant to consider whether any such analogy exists. 56.It has been suggested that a bright line can be drawn to exclude any right to exercise one’s freedom of expression on someone else’s private property. This is sometimes put in terms of there being “no freedom of forum” or of the Government having no positive duty to secure access to private property for use as a forum for expression. This represents another a priori argument in which the fact of private ownership presumptively precludes engagement of the right and application of the proportionality test. 57.Thus, for example, in Committee for the Commonwealth of Canada v Canada,[59] McLachlin J stated:
58.In my view, where the guaranteed right is engaged, the orthodox approach of ascertaining whether any restriction of access is proportionate and valid remains applicable but with the qualification that elements of particular significance regarding private property must be given special weight in the proportionality analysis. 59.Such considerations flow from the existence of constitutional protections relating to private property and the right to privacy. Thus, BL 6 requires the Government to protect the right of private ownership in accordance with law; and BL105 mandates such protection for the rights of individuals and legal persons to the acquisition and use, etc, of property. Particular protection is conferred on the “homes and other premises of Hong Kong residents”, BL 29 stating that they “shall be inviolable” and prohibiting arbitrary or unlawful intrusion. Similarly, BOR 14 prohibits “arbitrary or unlawful interference with [a person’s] privacy, family, home or correspondence”. 60.Consequently, where a limitation on the right to freedom of expression involves denial of access to private property, justification of the restriction as a measure necessary for the protection of the rights of others has to be given very substantial weight in the proportionality balance. 61.Such weight is further enhanced where the property involves a resident’s home or other premises, since such “rights of others” comprehend both property rights and the right to privacy and inviolability of the home. This was noted by the New Zealand Supreme Court in Brooker v Police,[60] in relation to section 14 of the New Zealand Bill of Rights Act 1990,[61] where Blanchard J stated:
62.While “never say never” is “a wise judicial precept”,[62] applying the orthodox test, it is exceedingly difficult to envisage a case where refusal of access to other persons’ private homes (or their curtilages or common areas) to be used as a forum for free expression would be ruled a disproportionate limitation on the right. 63.In HKSAR v Au Kwok Kuen,[63] Andrew Cheung J[64] had to consider “... the limits of the right of assembly and of the right to freedom of expression when they are sought to be exercised in private residential property without the permission of its owners or occupiers.”[65] It involved 26 persons associated with a housing concern group forcing their way through a police cordon to enter and mount a demonstration in the common areas of a private residential development with the intention of delivering a petition to a person who resided in one of the flats. His Lordship noted that under our constitution, restrictions necessary for the protection of the rights of others are permitted[66] and that where one is concerned with a private residential development, it protects home and privacy rights.[67] He considered alternative possible locations for the demonstration and noted that ample opportunities exist to exercise the relevant rights in public places[68] and concluded that:
64.While the passage just cited might be read as espousing a private property-based presumptive exclusion of the right to freedom of expression, the better view seems to me to be that the judgment as a whole proceeds on the orthodox basis that the denial of access, involving as it did a private residential development, was legitimate and valid, applying proportionality principles. 65.The position may, however, be a little less obvious when it comes to privately owned commercial properties such as shopping malls and similar premises, to which the public are freely admitted in furtherance of the owners’ business interests. While it will no doubt still be rare for a refusal of access amounting to a restriction on the right to freedom of expression to be held to be constitutionally invalid, such an outcome could be reached in an exceptional case. 66.This was acknowledged by the ECtHR in Appleby v United Kingdom,[70] where the applicants were prohibited from setting up stands at the entrance to a privately-owned shopping mall in the town centre when campaigning against the local authority’s decision to allow a playing field in the vicinity to be built upon, the complaint being that this would deprive their children of green areas for play. 67.The Court stated:
68.The Court indicated that the outcome in any case depends on the principle of proportionality and a balancing exercise:
69.It follows from the foregoing discussion that there is only a limited and imperfect analogy between the approaches to freedom of expression as exercised in public versus private properties. In each case, assuming that the right is engaged, its limitation embodied by denial of access to the site is assessed on proportionality principles. But, where private property is concerned, special elements involving the constitutional protections of private property and privacy in the home enter the equation, weighing heavily in favour of validating restricted access although this may be subject to rare possible exceptions. E.7 Conclusion as to the “rights not applicable” argument 70.As indicated in the foregoing discussion, there are, in my opinion, two main reasons for rejecting the “rights not applicable” argument. First, whether in its “hard line” version of excluding the right to freedom of expression on all government-owned properties or in its intermediate form of excluding the right only on some of them, it impermissibly seeks to subjugate fundamental rights to property interests, inverting the usual principle. Secondly, it fails to recognize that the proposed location of a demonstration or other form of expression is an intrinsic dimension of the right so that exclusion from that location is properly analysed as a restriction of the right which requires to be justified on orthodox proportionality principles. In short, the proper approach is to focus on the right instead of on property interests, and to examine the validity of any restrictions imposed on its exercise by applying the principle of proportionality within the framework of the permitted restrictions listed in BOR 16. F. The “non-intervention” argument 71.Logically, the next argument to deal with is the respondent’s “non-intervention” argument which involves the suggestion that the Court should not interfere with LegCo’s decision to regulate conduct as set out in AI sections 11 and 12 because they represent aspects of the internal management of LegCo’s affairs. This can be dealt with briefly and must be rejected for two reasons. 72.The non-intervention principle was explained by this Court in Leung Kwok Hung v President of the Legislative Council (No 1),[73] as:
73.Thus, the first answer to the respondent’s argument is that regulation of the admittance and conduct of strangers who wish to enter the precincts of the Chamber falls outside the category of managing LegCo’s internal processes so that the principle simply does not apply. 74.Secondly, as this Court held in the abovementioned case:
75.Accordingly, even if such regulation did fall within the internal management category, the non-intervention principle would have to give way since the Court is duty-bound to examine the validity of AI sections 11 and 12 in so far as they impose restrictions on the exercise of a constitutional right, all the more so when a criminal offence is involved. G. The “prescribed by law” argument 76.As we have seen,[75] BL 39 and BOR 16 require any purported limitation of the right of free expression to have sufficient legal certainty to qualify as a valid restriction “prescribed by law”.[76] In Mo Yuk Ping v HKSAR,[77] this principle was summarised as follows:
77.The appellant’s “prescribed by law” argument involves a challenge to the validity of AI section 11.[78] Mr Pun SC submits that penalising a person for failing to “behave in an orderly manner” leaves him, because of the vagueness of those words, “unclear precisely what he must avoid doing” and so constitutes an invalid restriction on the guaranteed right. G.1 The proper construction of AI section 11 78.I cannot accept that argument. To ascertain whether a provision is legally uncertain, it is necessary for it to be construed. And as the Court in HKSAR v Lam Kwong Wai[79] emphasised:
79.Mr Pun SC has not construed AI section 11. Instead, his argument merely focusses on the phrase “behave in an orderly manner” taken in isolation. When the section is properly construed in the light of its context and purpose, it is impossible to say that it lacks legal certainty or that it leaves a person “unclear precisely what he must avoid doing”. 80.In the first place, AI section 11 does not simply penalise a failure to “behave in an orderly manner” without more. The orderly behaviour is demanded only of persons who enter or are within precincts of the LegCo complex. The section also requires compliance with any directions given by an officer of the Council “for the purpose of keeping order”. The section is therefore self-evidently concerned with keeping order in those precincts. 81.As was pointed out in HKSAR v Chow Nok Hang,[80] citing Gleeson CJ in Coleman v Power,[81]“[concepts] of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs.” It was held that:
82.In the present situation, the clear purpose of AI section 11 is to set a standard of orderly behaviour on the part of visitors congruent with LegCo’s institutional and social importance. Its context shows that it is part of a statutory framework aimed at creating a secure and dignified environment in the LegCo complex conducive to the legislature carrying out its constitutional functions at its sittings without disruption or disturbance, while permitting members of the public to observe the proceedings within the Chamber as an open legislative process. The section’s context is provided by its mother Ordinance, the LCPPO, and the other sections of the Administrative Instructions. 83.Thus, the LCPPO’s Long Title states that it aims (among other things):
84.In LCPPO section 2, “Chamber” is defined to mean:
And “Precincts of the Chamber” is defined to mean
85.Protection of the core activity of free debate during proceedings in the Chamber is taken up in LCPPO section 3:
86.Section 5(b) immunises members from arrest “for any criminal offence whilst attending at a sitting of the Council or a committee” and section 6(1) forbids the service of civil proceedings or the process of civil execution “within the precincts of the Chamber while the Council is sitting”. 87.Section 8 is especially important. Section 8(1) provides: “Subject to this section, sittings of the Council shall be open to the public.” The statutory intention is thus to admit the public into LegCo’s precincts so that they can observe the sittings of the Council. Regulation of such attendance is obviously needed, so section 8(3) empowers the President to issue Administrative Instructions:
88.Section 17(c) directly penalises interruptions of LegCo sittings:
89.And similarly, as we have seen,[84] section 20(b) penalises contravention of:
90.AI section 2 provides specifically for admittance to public galleries during LegCo sittings:
91.Taking into account the abovementioned provisions, there is nothing uncertain about AI section 11.[85] In the light of the context and purpose illuminated by those provisions, anyone reading the section, with appropriate advice if necessary, would know that creating a disturbance by demonstrating in the public gallery while a LegCo subcommittee was sitting constitutes a contravention. Indeed, that is a conclusion any layman would have no difficulty reaching, exercising common sense. G.2 The authorities relied on by the appellant 92.In support of his “prescribed by law” argument, Mr Pun SC relies on Steel v United Kingdom,[86] and Lau Wai Wo v HKSAR,[87] two cases concerning legal certainty regarding binding-over orders; as well as Brooker v Police,[88] a New Zealand case involving the summary offence[89] of behaving in an offensive or disorderly manner. These are clearly distinguishable authorities, involving as they do, an uncertainty argument relating to the requirement that someone “be of good behaviour” or the prohibition against “behaving in a disorderly manner” at large, without the contextual framework provided by a statutory scheme such as that applicable to AI section 11 just discussed. 93.Because of their open-endedness, binding-over orders have faced challenges on the ground that they lack legal certainty. Thus, in Steel v United Kingdom,[90] certain protesters were ordered to be bound over “to be of good behaviour” with imprisonment to follow if they refused to be bound over, such orders having been made after they were found to have committed a breach of the peace. The ECtHR regarded the requirement that a person “be of good behaviour” to be vague and imprecise, but it held that the prior finding of a breach of the peace provided a sufficient context to rescue the order from failing the “prescribed by law” test. The Court stated:
94.Hashman v United Kingdom,[92] is a contrasting case where fox hunting saboteurs disrupted a hunt and were bound over in the sum of £100 not to breach the peace and to be of good behaviour for 12 months, an order made solely on the basis of a finding that they had behaved in a manner contra bonos mores.[93] Since that concept (which had been defined in the English courts as behaviour which is “wrong rather than right in the judgment of the majority of contemporary fellow citizens”) offered no more certainty than the broad “good behaviour” requirement, the ECtHR was unable to adopt the Steel v UK technique and held that the order prospectively binding over the protesters to be of good behaviour at large was uncertain.[94] Distinguishing Steel, the Court stated:
95.In Lau Wai Wo v HKSAR,[96] this Court was concerned with a case where the defendant was acquitted of the charge of common assault on his brother but was bound over by the Magistrate in the sum of $1,000 to be of good behaviour for one year and to keep the peace. In deciding that that order did not pass the “prescribed by law” test, the Court did not approve the Steel technique of discovering certainty on the basis of prior findings made. Lord Scott of Foscote NPJ, writing for the Court, held that a prospective requirement to be of good behaviour at large failed the test and that the order would only be valid if it was made specific by its own terms:
96.Brooker v Police,[98] posed a different problem. The appellant believed that a certain police constable had unfairly harassed him by obtaining a search warrant against him. He went to her home and knocked on her door, waking her up after a night shift, and then protested in the street outside, playing his guitar and singing songs critical of the constable. He was charged with a statutory offence of disorderly behaviour under section 4(1)(a) of the Summary Offences Act which provided:
97.It was thus an offence defined in minimalist terms. It had only two elements: (i) behaving in an offensive or disorderly manner; (ii) while being in or within view of any public place. It lacked any contextual framework to provide guidance as to the kind of behaviour which would qualify as “offensive or disorderly” and the Supreme Court of New Zealand was primarily engaged in construing the section to provide such guidance. The majority held that “disorderly” had to involve disruption of public order. As Elias CJ put it:
98.The “prescribed by law” test was therefore not directly relevant. It was only obliquely touched on when one of the reasons given by Elias CJ for adopting “[a] narrower interpretation of ‘disorderly behaviour’, anchored in disruption of public order” was that this would be “more consistent with the fundamental principle that criminal law must be predictable.”[100] 99.These three authorities therefore had to grapple with issues that do not arise in connection with AI section 11 which has the benefit of a clear contextual focus and is not concerned with disorderly behaviour at large. Those authorities do not advance the appellant’s case and the “prescribed by law” argument fails. 100.Before leaving this argument, I should mention the criticism of the Judge’s construction of AI section 11 referred to in Section D above. With respect, I think that the Judge fell into error by eliding the two disjunctive strands in the Instruction and treating the offence as involving proof of both disorderly behaviour and a failure to comply with the direction of an officer of the Council.[101] His Lordship also erred in so far as he considered a “remedial interpretation” warranted.[102] The respondent does not seek to uphold the Judge’s approach on this matter. As the error does not affect the analysis or outcome, I will say no more about it. H. The “blanket prohibition” argument 101.It will be recalled that Mr Pun SC’s argument is that:
H.1 The proper construction of AI section 12 102.Just as the “prescribed by law” argument requires AI section 11 to be construed to decide whether it is legally uncertain, the “blanket prohibition” argument requires AI section 12 to be construed to see if it does indeed lay down a blanket prohibition. 103.It is once again important not to ignore material words in the section and to construe it in the light of its context and purpose. AI section 12 does not simply make “all forms of display of any ‘sign, message or banner’ a criminal offence”. It only does this with regard to displays “in a press or public gallery”, indicating its intended scope. 104.In considering AI section 12’s context and purpose, the exercise of construction undertaken regarding AI section 11 is equally applicable. For the reasons given in Section G.1 above, the purpose of the relevant rules in the LCPPO and the Administrative Instructions is to create a secure and dignified environment in the LegCo complex conducive to LegCo properly carrying out its constitutional functions at its sittings without disruption or disturbance. AI section 12 lays down certain prohibitions as a condition of allowing members of the public to observe legislative proceedings within the Chamber. 105.Thus, on a purposive construction, although couched in wide terms, the words of AI section 12 taken in context, do not render “all forms of display of any ‘sign, message or banner’ a criminal offence regardless of its purpose, nature, manner and its impact (if any) on the public order in LegCo” as the appellant alleges. On the contrary, the Administrative Instruction is issued very much with such impact in mind. The prohibitions are aimed at displays which entail the risk of disorder in public galleries and which may disturb LegCo sittings and the rights of others observing the proceedings. 106.This is a construction that receives support from AI section 12(3) which provides:
107.The words I have italicised strongly indicate that the prohibition of signs, messages or banners, including signs or messages on items of clothing in a public or press gallery, is aimed at conduct which amounts to behaving in a disorderly manner, thus contextually limiting the scope of subsections (1) and (2). A person in a public gallery wearing a T-shirt which happens to bear an innocuous message unconnected with the legislature’s proceedings, not brandished intrusively, is not intended to be caught. 108.This construction is reinforced if one keeps in mind the terms of section 8(3) of the LCPPO, which authorized the issue of AI section 12. Section 8(3) specifies that the President is to exercise this power “for the purpose of maintaining the security of the precincts of the Chamber, [and] ensuring the proper behaviour and decorum of persons therein ...”.[104] Thus, if he were to issue an Administrative Instruction laying down a blanket prohibition going far beyond that stated purpose, it would amount to an ultra vires exercise of the power and the rule of construction expressed in the maxim ut res magis valeat quam pereat would apply. That maxim is explained in Bennion on Statutory Interpretation[105] as follows:
109.The contextual and purposive construction limiting the scope of AI section 12 discussed above, avoids an ultra vires outcome and preserves the validity of the rule. I arrive at this conclusion applying ordinary common law principles of construction. If it had been necessary, I would not have hesitated to arrive at the same conclusion applying a remedial interpretation in accordance with the principles explained in HKSAR v Lam Kwong Wai.[106] 110.I therefore conclude that properly construed, AI section 12 does not lay down the alleged “blanket prohibition” and the appellant’s argument advanced on that rejected basis fails. H.2 Does AI section 12 create a valid restriction on the right to freedom of expression? 111.AI section 12 plainly catches the conduct of the appellant and her co-defendants. Their demonstration was noisy and caused a commotion in the public gallery largely caused by the display of the Swastika sign and the slogan on their T-shirts opposing the landfill extension. It led on both occasions to the session being interrupted and, on the second occasion, to the exclusion of the public from observing proceedings in the substituted conference room. The question is whether, in limiting the right to freedom of expression by prohibiting such demonstrations, AI section 12 imposes a constitutionally valid restriction.[107] 112.This involves first examining whether the section operates as a restriction which is necessary for accomplishing one of the purposes listed in BOR 16. In my view, it clearly does. If not prohibited, demonstrations and interjections by persons in public galleries would inevitably interfere with debates and other proceedings on the floor of LegCo. A demonstration on a controversial issue is likely to be met with a counter-demonstration and a confrontation between the two camps in a public gallery would pose an obvious risk of conflict and public disorder. It would also interfere with the rights of persons who simply wish to observe the debate or other proceedings. 113.Given such prospects, the AI section 12 restrictions can be justified as necessary for respect of the rights of others and for the protection of public order or ordre public. The applicability of the categories of respect for the rights of others and the protection of public order is self-evident. However, the protection of ordre public as an aim may call for some elaboration. 114.Ordre public is a broad and flexible concept which, as Li CJ explained in HKSAR v Ng Kung Siu,[108] and as the majority reiterated in Leung Kwok Hung v HKSAR,[109]can be imprecise and elusive. It is much wider than “public order” in terms of the maintenance of law and order and “includes what is necessary for the protection of the general welfare or for the interests of the collectivity as a whole”being “a function of time, place and circumstances.” Various formulations of the meaning of ordre public were considered by the Court. The concept has been described as “a basis for restricting some specified rights and freedoms in the interests of the adequate functioning of the public institutions necessary to the collectivity...” Another formulation, taken from the Siracusa Principles[110] is that it “... may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.” In my view, a restriction on the right to freedom of expression to safeguard the proper functioning of the legislature comes within these formulations of the protection of ordre public. 115.The next question is whether the restrictions are rationally connected with accomplishing the aforesaid aim, the answer to which is obviously “Yes”. They directly operate to restrict intrusive or disruptive conduct in the legislative Chamber. 116.Does the restriction do no more than reasonably necessary for accomplishing that purpose? In my view, it clearly does pass this test. AI section 12 has a limited scope, applying only to persons who are in a press or public gallery. It targets intrusive behaviour to protect good order during a LegCo meeting. The appellant was not prohibited from exercising her freedom of expression in opposition to the proposed landfill extension in other venues, including in designated areas of the LegCo complex. She was free to canvass support from fellow residents and to lobby elected legislative councillors who were members of the subcommittee concerned. She was free to campaign for public support using social media and other forms of public communication. What she was prohibited from doing was confined to her mounting a disruptive demonstration in the public gallery during the subcommittee’s sessions. 117.A reasonable balance has plainly been struck between the benefit to society of enabling LegCo properly to carry out its constitutional functions on the one hand and the limited restriction on the guaranteed right of freedom of expression on the other. AI section 12 in my view is clearly a proportionate and valid restriction on the right. I. Conclusion 118.Although the respondent’s arguments that the appeal should fail in limine have not been successful, the appellant’s arguments challenging the legal certainty of AI section 11 and the proportionality of AI section 12 must be rejected. I would accordingly dismiss this appeal. Mr Justice Fok PJ: 119.I agree with the judgment of Mr Justice Ribeiro PJ. Mr Justice Chan NPJ: 120.I agree with the judgment of Mr Justice Ribeiro PJ. Lord Neuberger NPJ: 121.I agree with the judgment of Mr Justice Ribeiro PJ. Chief Justice Ma: 122.The Court unanimously dismisses the appeal.
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 Appellant Ms Anna YK Lai, SC, DDPP and Mr Andrew Li, SPP of the Department of Justice, for the Respondent [1] Cheung Mei-hung and Fong Yu-ching. They were convicted as co-defendants at the trial but are not parties to this appeal. [2] Although a live video feed was arranged for the public. [3] Cap 382. [4] Cap 382A. [5] Mr Chu Chung Keung, ESCC 3792/2014 (7 October 2015). The other defendants were also convicted. [6] HCMA 666/2015 (19 May 2016). Wong J’s judgment was delivered in Chinese and references in this judgment are to the English translation. [7] Ribeiro, Tang and Fok PJJ, FAMC 29/2016 (8 February 2017). Enactment of AI sections 11 and 12 was of course pursuant to LCPPO section 8(3) rather than section 20(b) but the error is of no consequence. [8] In this judgment, Basic Law Articles are cited with the prefix “BL” followed by the number of the Article. [9] See eg, Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at §53; and Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §19. [10] Cap 383. Articles of the Bill of Rights are cited with the prefix “BOR” followed by the number of the Article. [11] Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §20. [12] BOR 17: “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.” [13] Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §12; and HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837 at §31. [14] Under BL 39(2), or, to the same effect, as a restriction “provided by law” under BOR 16(3): see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §18. [15] HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442 at 461; and Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §33. [16] Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §35; HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837 at §36; and Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at §49. [17] Appearing for the appellant with Harrison Cheung and Anson Wong Yu Yat. [18] Appellant’s Written Case §§43-45. Italics in the original. [19] Appellant’s Written Case §57. Italics in the original. [20] Appearing for the respondent with Mr Andrew Li. [21] Respondent's Written Case §9(a). [22] Respondent's Written Case §§17(a) and (b), 18-20. [23] Respondent's Written Case §§26-31. [24] Those paragraphs refer to the need to accord fundamental rights a generous interpretation and to accommodate annoying or offensive views, citing Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229. [25] Judgment §35. [26] [1991] 1 SCR 139. [27] Section 2(b): “Everyone has the following fundamental freedoms: ... freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ...” [28] Section 1: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” [29] Ibid at 192. [30] Ibid at 229. [31] BL 8: “The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.” [32] Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139 at 155. [33] Ibid at 230. [34] [1991] 1 SCR 139. [35] Ibid at 156 and 158. [36] Ibid at 235. [37] Ibid at 237. [38] Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927. [39] Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139 at 238-239. [40] Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §2. [41] Applying the proportionality analysis discussed in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372. [42] Tabernacle v The Secretary of State for Defence [2009] EWCA Civ 23. [43] Ibid at §37. [44] [2011] 1 WLR 504. [45] Ibid at §37. Articles 10 and 11 referred to are Articles in the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) which deal respectively with the rights to freedom of expression, to freedom of peaceful assembly and to freedom of association with others in terms very similar to the rights guaranteed by the Basic Law and HKBORO. See also R (Gallastegui) v Westminster City Council [2013] 1 WLR 2377 per Lord Dyson MR at §26: ““I accept that the importance of the right to express views publicly and to assemble for the purpose of expressing and discussing those views can extend to the manner in which it is wished to express the views and the location where they wish to express them...” [46] Ibid at §42. [47] Tabernacle v The Secretary of State for Defence [2009] EWCA Civ 23. [48] Mayor of London v Hall [2011] 1 WLR 504. [49] The Mayor Commonalty and Citizens of London v Samede [2012] EWCA Civ 160. [50] [2012] EWCA Civ 160 at §39. See also R (Gallastegui) v Westminster City Council [2013] 1 WLR 2377, for a proportionality analysis. [51] [1991] 1 SCR 139. [52] Ibid at 198. Although her Honour generally favoured the universal applicability of freedom of expression subject to justification under s 1 of the Charter. [53] Ibid at 241. [54] See Hirst v UK (No 2) [2005] ECHR 681 at §§69-71 and Velyo Velev v Bulgaria, Application No 16032/2007 (27 May 2014) at §30. Similar views have been expressed at common law: see eg, Raymond v Honey [1983] 1 AC 1 at 10 and R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at §5. The question was addressed in HKSAR v Wan Thomas [2016] 5 HKLRD 656, but as an application for leave to appeal is pending before this Court, I say nothing about that decision. [55] See Lau Cheong v HKSAR (2002) 5 HKCFAR 415; Ubamaka v Secretary for Security (2012) 15 HKCFAR 743. [56] Andrew Cheung J in Chan Kim Sum v Secretary for Justice [2009] 2 HKLRD 166. [57] Cf Golder v United Kingdom (1979-80) 1 EHRR 524. See Prison Rules, Cap 234A, r 52 for the rules relating to such visits currently in force. [58] See Prisons Ordinance (Cap 234) section 23 and Prison Rules, Part III, especially rules 226-229. [59] [1991] 1 SCR 139 at 228. [60] [2007] 3 NZLR 91 at §60. [61] Section 14: “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.” [62] Per Lord Nicholls of Birkenhead in a very different context: In re Spectrum Plus Ltd (In Liquidation) [2005] 2 AC 680 at §41. [63] [2010] 3 HKLRD 371. [64] As the Chief Judge of the High Court then was. [65] [2010] 3 HKLRD 371 at §1. [66] Ibid at §25. [67] Ibid at §26. [68] Ibid at §37. [69] Ibid at §53. [70] (2003) 37 EHRR 38. [71] Ibid at §47. [72] Ibid at §40. [73] (2014) 17 HKCFAR 689 at §28. [74] Ibid at §32. [75] Section C above. [76] Under BL 39(2) and “provided by law” under BOR 16(3): Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at §18. [77] (2007) 10 HKCFAR 386 at §61, citing Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381. [78] Set out in Section B above. [79] (2006) 9 HKCFAR 574 at §63. [80] (2013) 16 HKCFAR 837 at §67. [81] (2004) 220 CLR 1 at §12. [82] (2013) 16 HKCFAR 837 at §68. [83] In the citations of legislative provisions in this Section of the judgment, the italics are supplied. [84] Section B above. [85] There being no suggestion that AI section 12 suffers from uncertainty. [86] (1999) 28 EHRR 603. [87] (2003) 6 HKCFAR 624. [88] [2007] 3 NZLR 91. [89] Under section 4(1)(a) of the Summary Offences Act. [90] (1999) 28 EHRR 603 [91] Ibid at §76. [92] (1999) 30 EHRR 241. [93] Ibid at §§25, 27 and 35. [94] Ibid at §§38-41. [95] Ibid at §40. [96] (2003) 6 HKCFAR 624. [97] Ibid at §49. [98] [2007] 3 NZLR 91. [99] Ibid at §41. [100] Ibid at §38. [101] Judgment §§81-82, 88 and 94. [102] Judgment §§83-84. [103] Appellant’s Written Case §§43-45. Italics in the original. [104] As well as for “other administrative purposes”. [105] Rule 198, Lexis Nexis On-line edition. [106] (2006) 9 HKCFAR 574. [107] The appellant does not suggest that AI section 11 is disproportionate. [108] (1999) 2 HKCFAR 442 at 457-460. [109] (2005) 8 HKCFAR 229 at §§69-74. [110] The Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, issued by the American Association for the International Commission of Jurists (1984) §22. |
Cases cited in this judgment