Chee Fee Ming v. Director of Food and Environmental Hygiene and Another
Read the full judgment text of HCAL 73/2013 on BabelCite. This High Court CFI judgment was delivered on 31 August 2018.
1. These two conjoined cases have a complex procedural history. The original applicants, Madam Chee and Mr Hung, were both adherents of Falun Gong. Both cases have arisen from decisions taken by the Director of Food and Environmental Hygiene (“ Director ”) in April 2013 to remove banners being displayed at what have been described as “static demonstrations” on Government land participated in by the applicants. The removal was carried out under s 104C of the Public Health and Municipal Service
Cited by 10 cases · Cites 11 cases
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HCAL 73/2013 [2018] HKCFI 2031 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 73 OF 2013 ____________
____________ HCAL 110/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ACTION NO 110 OF 2013 ____________
____________ (Heard Together) Before: Hon G Lam J in Court Date of Hearing: 21 - 23 March 2018 Date of Judgment: 31 August 2018 ______________________ J U D G M E N T ______________________ A. Introduction 1.These two conjoined cases have a complex procedural history. The original applicants, Madam Chee and Mr Hung, were both adherents of Falun Gong. Both cases have arisen from decisions taken by the Director of Food and Environmental Hygiene (“Director”) in April 2013 to remove banners being displayed at what have been described as “static demonstrations” on Government land participated in by the applicants. The removal was carried out under s 104C of the Public Health and Municipal Services Ordinance (Cap 132) (“Ordinance”). That section authorises the removal of bills and posters displayed on Government land without prior approval obtained from the Director under s 104A. 2.After Madam Chee passed away in May 2014, Ms Pun was substituted as the applicant in HCAL 73/2013. Leave to apply for judicial review was refused by Poon J (as he then was) after a “rolled‑up hearing”[1] but, on appeal, the Court of Appeal[2], whilst affirming Poon J’s decision on the grounds argued before him, granted the applicants leave on two grounds which had not been raised or raised in the same way before Poon J, and remitted the case to the Court of First Instance. This is my decision on the application for judicial review as confined to those two grounds, both of which concern the constitutionality of s 104A. B. Facts 3.The principal relevant facts have been set out in §§3, 4 and 9‑28 of Poon J’s judgment, which I gratefully adopt and set out as follows (including the two footnotes at §§11 and 22(2)):
4.The Management Scheme referred to in §15 quoted above is a scheme adopted by the Lands Department. As explained by Poon J at §2 of his judgment, by virtue of s 142 of the Ordinance, the Director had since 2003 delegated all his functions and powers under s 104A(1)(b) to certain specified categories of officers of the Lands Department (namely, Chief Estate Surveyor, Senior Land Executive and Principal Survey Officer (Estate)), without however precluding the Director from himself exercising or performing at any time any of the powers or functions so delegated. 5.For the purpose of carrying out the delegated functions, the Lands Department has devised and adopted a “Management Scheme for the Display of Roadside Non‑commercial Publicity Materials Implementation Guidelines” (“Management Scheme”) for the purpose of processing applications for permission to display such materials on public roadsides under s 104A(1)(b). As its name suggests, the Management Scheme only covers locations on public roadsides designated for displaying non‑commercial publicity materials. It does not encompass all Government land that falls within s 104A(1)(b). The content of the Management Scheme is described in §§25‑32 below. 6.As the delegation to the Lands Department does not have any geographical limitation, for Government land not covered by the Management Scheme, the powers and functions under s 104A(1)(b) remain to be exercised either by the Director or by the relevant Lands Department officials, albeit not pursuant to the Management Scheme.[5] C. Decisions challenged 7.By these applications for judicial review, the applicants seek to impugn, amongst others, the following decisions made by the Director and the Secretary for Justice (the “Decisions” collectively):
8.The Director and Secretary for Justice are the respondents while the Lands Department has been named the interested party. They have been jointly represented throughout and for convenience I shall refer to them collectively as the “respondents”. 9.The applicants contend that the Decisions constituted an infringement of Art. 16 of the Hong Kong Bill of Rights (“Bill of Rights”) which protects the freedom of expression, Art. 17 of the Bill of Rights which protects the freedom of assembly, and Art. 27 of the Basic Law which protects, inter alia, the freedom of demonstration. The grounds of their applications will be described below after I have set out the procedural history. D. Constitutional and Statutory Framework Legislative provisions of the Public Health and Municipal Services Ordinance 10.The relevant provisions in the Ordinance is contained in Part IX (Advertisements, Decorations and Signs) which contains ss 104, 104A to 104E and 105. As Poon J explained in his judgment at §51, ss 104A to 104E were introduced into the Ordinance as a package in 1980 to tighten the then ineffectual controls over environmental nuisance caused by indiscriminate posting of bills and posters. 11.S 104A provides:
12.The “Authority” is defined in s 104E(1) as meaning various authorities or statutory bodies respectively depending on the responsibility for the land in question. S 104E(1)(f) encompasses the general and residual category for land not covered by the other paragraphs, where the Authority is specified to be the Director. 13.The phrase “bill or poster” is defined in s 104E(4) to include:
14.“Land” is defined to include:
15.S 104B(1) requires bills and posters displayed on any private land or Government land to be maintained in a clean and tidy condition to the reasonable satisfaction of the Authority. Subsection (2) renders any contravention an offence. 16.S 104C(1) provides:
17.Where a person has committed an offence under s 104A(1), s 104D(1) extends criminal liability to any other person who uses the former to display or affix the bill or poster and any person whose goods, trade, business or other concerns are given publicity by the bill or poster. S 104D(2) provides that a person is deemed to display a bill or poster if the bill or poster is displayed on land of which he is the owner or occupier, or the bill or poster gives publicity to his goods, trade, business or other concerns. 18.In short, so far as relevant on the facts of this case, the principal effect of these provisions is that prior written permission of the Director has to be obtained for any bill or poster to be displayed or affixed on any Government land (s 104A(1)(b)); otherwise the person responsible is guilty of an offence (s 104A(2)) and the Director may remove the bill or poster and recover the cost of removal from him (s 104C(1)(a)). 19.I was told that both original applicants had been charged with an offence under s 104A(2) although they had not been tried, with Mr Hung’s trial now pending the outcome of these judicial review proceedings. Provisions of the Bill of Rights and Basic Law 20.Art. 16(2) and (3) of the Bill of Rights provides:
21.Art. 17 of the Bill of Rights provides:
22.Art. 27 of the Basic Law provides:
23.Art. 39 of the Basic Law provides, inter alia, that the rights and freedoms enjoyed by Hong Kong residents “shall not be restricted unless as prescribed by law.” E. Management Scheme 24.As mentioned in §4 above, the Director had delegated all his functions and powers under s 104A to the Lands Department albeit without precluding himself from exercising or performing them. The genesis of the Management Scheme, which was devised by the Lands Department, was set out by Poon J in his judgment at §§64‑71 which I shall not repeat. The version that is relevant to these proceedings is the one as revised in August 2011. 25.In essence, the Management Scheme designates a number of roadside spots for the display of non‑commercial publicity materials, specifies the objectives and priorities in allocating such spots to various categories of persons, and provides for a mechanism for applying for approval under s 104A(1)(b) for the display of such materials. 26.The designated spots are all located on roadside excluding expressways, flyovers and the external faces of footbridges (see Part 5). These spots were identified and chosen in consultation with various government departments and District Councils. As at 2012 there were a total of 22,649 designated spots spread over the whole of Hong Kong. Their locations are not available on the Internet but a list of them can be obtained from the District Lands Office in each district. 27.The objective of the Management Scheme is stated in Part 1 as follows:
28.Part 2 sets out the classes of persons who may be allocated designated spots and the number of spots reserved for each class. Thus application may be made by members of the Legislative Council and District Councils, by District Councils and their committees, by government departments and “by non‑profit making bodies for the display of publicity materials serving the local community”. Ballots may be conducted by the District Lands Office to allocate the designated spots, if necessary (Part 2(c)). Each successful applicant will be allocated a maximum of five designated spots (Part 2(e)(iii)). 29.Applications have to be submitted to the relevant District Lands Office no later than one month before the intended display period, although urgent applications with justifications under special circumstances will also be processed (Part 8(a)). Permission granted to non‑profit making bodies will cover a period of two calendar months less the last two days although applications for extension may be granted provided there is no prejudice to other applicants (Part 3). Part 4 regulates the size of the publicity materials, which shall not exceed 1 metre in height and 2.5 metres in length. 30.Part 7, which deals with the content of the publicity materials, provides:
31.It will be noted that, so far as relevant for present purposes, the Management Scheme has two limitations: first, it covers only designated roadside spots; secondly, an individual cannot apply for permission under the scheme except a Legislative Council or District Council member. See §§92-93 below. F. Procedural history 32.To understand the scope and limit of the grounds relied on and the arguments before me, it is necessary to examine the relevant contentions advanced before and the decisions of Poon J and the Court of Appeal on appeal from his Lordship. 33.As summarised by Poon J,[6] there were four grounds raised before him for judicial review, only two of which need be mentioned here, namely, (1) that the Decisions were unconstitutional in that they unlawfully infringed the applicants’ freedoms of demonstration, assembly and speech; and (2) that they were unconstitutional insofar as they were taken because of public order problems created by persons opposed to the applicants’ demonstrations and/or to other peaceful demonstrations by Falun Gong practitioners. 34.On the question of constitutionality, Poon J considered that the regulatory scheme in Part IX of the Ordinance together with the Management Scheme served a number of legitimate aims.[7] His Lordship considered that s 104A, requiring permission for display of bills or posters, and s 104C, empowering the Director to remove materials displayed without such permission, did impose restrictions on a person’s exercise of his freedom of expression, assembly and demonstration.[8] 35.While the applicants’ constitutionality attack was focussed on s 104A, Poon J considered that s 104C was a “free‑standing” provision and that the real question was whether s 104C, considered on its own, was constitutionally justified,[9] a question which he answered in the affirmative.[10] Poon J also considered, obiter, the applicants’ argument that s 104A(1)(b) should be read down so as not to prohibit, or require approval for, reasonable display of banners or placards at demonstrations such as those held in the name of Falun Gong. He rejected that contention, holding that s 104A(1)(b) and the Management Scheme met the proportionality test.[11] 36.On appeal to the Court of Appeal, the applicants sought to raise two new points, namely, that (i) as a matter of construction, s 104A did not apply to banners used in connection with a static demonstration, and (ii) the restriction imposed by s 104A was not “prescribed by law” as it failed the test of legal certainty. The applicants also shifted the focus of their proportionality argument, as explained below. 37.The Court of Appeal disagreed with the applicants on the construction of s 104A and refused to grant leave for that ground.[12] The respondents’ analysis on this issue, which the Court of Appeal accepted, may be set out as follows:
38.However, the Court of Appeal considered the new point that the restriction imposed by s 104A was not “prescribed by law” was arguable and granted leave to apply for judicial review on this ground.[16] 39.On the issue of proportionality, the Court of Appeal understood the applicants’ argument before Poon J to have been that the mere fact of requiring prior approval for display of posters and bills used in conjunction with a demonstration rendered s 104A(1)(b) disproportionate and thus unconstitutional. To this extent, the Court of Appeal agreed with Poon J that the contention should be rejected.[17] The Court of Appeal, however, recognised as arguable a narrower proportionality argument as follows: “ 84. It is fair to say that the focus of the proportionality argument had been shifted. In the court below, and even in the written skeleton submissions before us, Mr Harris attacked the proportionality of Section 104A by reference to its requirement for prior approval. That was how the Judge understood his argument and at §§119 to 141 of the judgment he explained why he rejected Mr Harris’ argument.
G. First ground — prescribed by law 40.It is not in dispute that any restriction of fundamental rights such as the freedoms of expression, assembly and demonstration invoked by the applicants in this case must be “prescribed by law”, as stated in Art. 39 of the Basic Law. The cognate concepts of “provided by law” in Art. 16 of the Bill of Rights and “in conformity with the law” in Art. 17 of the Bill express the same principle. The principle is that of legal certainty: Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, §30. 41.It is well established that the principle not only means that the restriction must have a basis in law but entails two further requirements:
See The Sunday Times v The United Kingdom (1979-80) 2 EHRR 245, §49; Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, §§62‑63; Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, §27; Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005, §84; R (Purdy) v Director of Public Prosecutions (Society for the Protection of Unborn Children intervening) [2010] 1 AC 345, §40. 42.On behalf of the applicants Mr Paul Harris SC advanced two contentions under the “prescribed by law” principle:
The uncertain application point 43.In connection with the uncertain application point, Mr Harris criticised the absence of any provision in the Ordinance excepting demonstrators’ banners from the requirement for approval. He recognised, however, that the Court of Appeal had ruled that s 104A applied to demonstrators’ banners (see the Court of Appeal’s judgment at §§39‑47) and that I am bound by this decision. I therefore simply record that the applicants reserved their right to contend in a higher court, that s 104A, on its proper construction, does not apply to demonstrators’ banners save for unattended banners. 44.The Court of Appeal accepted the respondents’ submission that for the purpose of s 104A the word “display” carries with it “a degree of permanence and habitual regularity”. Thus, s 104A “does not catch the use of banners or placards in a demonstration (whether mobile or static) which does not occupy the same spot with a degree of permanence and habitual regularity” (see the Court of Appeal’s judgment at §§42‑47). Mr Harris also criticised this holding, arguing that linguistically a “display” may be one‑off or of very short duration, though he accepted that here again it was not an argument open to him in this court. 45.Mr Harris nevertheless submitted that this introduces such uncertainty into s 104A as to render it non‑compliant with the “prescribed by law” requirement. He argued that since there is no definition of “a degree of permanence or habitual regularity”, it is impossible for the citizen, such as a participant in a demonstration, to know at what point the requirement for prior approval is triggered so that it becomes an offence to continue thereafter to display the banners without approval. 46.I cannot entertain this submission. In my view it is not an argument open to the applicants in this court. In essence, it is an invitation to rule that the Court of Appeal erred in adopting the interpretation advanced by the respondents because that interpretation is vague and uncertain and impermissibly so when applied to demonstrators’ banners because of the engagement of the fundamental rights of assembly and demonstrations and the associated freedom of expression. 47.It is not entirely clear whether the same point was made to the Court of Appeal but, irrespective of this, it is clear that the Court of Appeal had at the forefront of their consideration the “prescribed by law” point. It would not be sensible to suppose that the Court of Appeal gave the applicants leave to argue the “prescribed by law” point and yet in the same breath adopted an interpretation of s 104A which fails to satisfy that requirement. The Court of Appeal must in my view be taken to have decided implicitly that the interpretation they adopted would not fall foul of that requirement. 48.Furthermore, it is clear that when granting leave for the “prescribed by law” ground, the Court of Appeal had in mind the uncertain criteria point rather than the uncertain application point. The Court of Appeal allowed a re‑amendment of the Forms 86, introducing, inter alia, a new ground as follows:
It is true that this paragraph was in general form, and was in fact criticised for being unparticularised[19], but plainly the Court of Appeal understood it to raise only the uncertain criteria point. Thus the Court of Appeal stated at §72 of its judgment:
See also §§28, 66 and 76‑83 of the Court of Appeal’s judgment. 49.When leave was granted by this court, by consent, in April 2017 for the Forms 86 to be re‑re‑amended[20], the relevant ground was re‑worded to become:
So formulated, this ground is in my view plainly limited to the uncertain criteria point. 50.Although the re‑re‑amendments also introduced into the Forms 86 in the section “Submissions” a paragraph[21] that advances the uncertain application point, it appears to be directed to the argument, reserved for a higher court, that s 104A should be construed in such a way as not to apply to banners used during demonstrations.[22] 51.For these reasons I conclude that the uncertain application point is not open to the applicants in this court. The uncertain criteria point 52.The general principle is not in doubt. As the majority of the Court of Final Appeal held in Leung Kwok Hung at §29:
53.The concern is that the law should afford “a measure of legal protection against arbitrary interferences by public authorities” with fundamental rights: Hasan and Chaush v Bulgaria (2000) 34 EHRR 1339, at §84. 54.In Glas Nadezhda Eood v Bulgaria (2009) 48 EHRR 35 at §46, the European Court of Human Rights emphasized that:
55.This requirement not only enables the citizen reasonably to foresee the consequences of a given action and to regulate his conduct accordingly, but also serves the function of enabling the person to whom the power is entrusted to know the legitimate limits of that power: Secretary for Justice v Ocean Technology Ltd [2009] 1 HKC 271 at §107 per Stock JA. Applicants’ arguments 56.On behalf of the applicants, Mr Harris submitted that the law failed to set out any criteria as to how the discretion under s 104A(1)(b) is to be exercised. There is no basis to think that the Management Scheme applies; if it does, it would enable content‑based censorship. In contrast with some of the authorities which might be said to concern borderline cases, he submitted that this is a clear case where the “prescribed by law” requirement was not complied with. Respondents’ preliminary objection 57.Seizing upon several passages in the Forms 86 that complain that the statute confers an “unfettered” or “untrammelled” discretion on the Director, Mr Benjamin Yu SC, who appeared for the respondents, submitted that under established principles of public law, in this kind of regulatory scheme the discretion is not “unfettered” or “untrammelled”, and the applicants’ complaint therefore failed in limine. I am unable to accept this submission. The point to which Mr Yu wanted to confine the applicants is obviously unsustainable. In one sense, in public law there is “no such thing as an unfettered discretion”: R v Somerset CC, ex p Fewings [1995] 1 All ER 513 at 524, per Laws J. The Court of Appeal would not have granted leave if they considered that to be the only point raised. The Court of Appeal itself stated that s 104A appears to give an “absolute” discretion to the Director (see §72 of the Court of Appeal’s judgment). Obviously, in describing the discretion as “unfettered” or “absolute”, one is in this context simply pointing to the fact that the statute itself does not set out any limit or guidance on the exercise of the discretion. Respondents’ arguments 58.Broadly summarised, the respondents submitted that the “prescribed by law” requirement may be met not only by enacted law but also by unwritten law. Although s 104A does not spell out the criteria for approval, they are embodied in or informed by (i) the context and purposes of the statutory scheme; (ii) the common law including in particular the principle that general powers conferred on a public authority can only be exercised in accordance with the object and purpose of the statute; (iii) all relevant requirements of the common law including the duty to act fairly, to take all relevant considerations into account and omit irrelevant ones, not to be influenced by ulterior motives, and not to act Wednesbury unreasonably or irrationally; and (iv) the Management Scheme. What is important ultimately is whether there is a “settled core” of meaning of the norm in question. Taken together, these matters (the respondents submitted) provide a reasonably certain basis for the operation of s 104A(1)(b). 59.For Government land not covered by the Management Scheme, the approval process has been described in the respondents’ evidence (in an affirmation of Chan Chung Chi, a Senior Superintendent (Cleansing and Pest Control) of the Food and Environmental Hygiene Department) as follows:
Discussion 60.The principles of the “prescribed by law” requirement are not in dispute. As the authorities make clear, the tension between the need for legal certainty and the equally important need to avoid excessive rigidity does not admit of a sharp and fixed demarcation line applicable to every case. In Hashman, it was said (at §31) that the level of precision required depends on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. In Leung Kwok Hung, it was said (at §§28‑29) that the appropriate level of precision must depend on the subject matter of the law in question. Where the law is of general application, it seems to me that the level of certainty or precision demanded of it may also vary according to the circumstances to which it is applied. 61.Neither side has been able to find an authority that deals with a law that restricts the display of materials by demonstrators. The cases that have been cited to me concern other matters but are nonetheless instructive in illustrating the general approach, the considerations that may be taken into account and the actual application of principle to particular situations. 62.In Leung Kwok Hung, the question arose whether s 14(1) of the Public Order Ordinance (Cap 245), which gave the Commissioner of Police the discretion to object to a procession “if he reasonably considers that the objection is necessary in the interests of … public order (ordre public) …”, met the “prescribed by law” requirement. The Court of Final Appeal held that it did not, since the concept of “public order (ordre public)” as a concept of constitutional norm taken from the International Covenant on Civil and Political Rights is “imprecise and elusive” and its “boundaries beyond public order in the law and order sense cannot be clearly defined” (§70). The majority stated:
63.In Malone v United Kingdom (1984) 7 EHRR 14, the question arose as to the lawfulness of interception of communications effected by the police with reference to the right to respect for private life and correspondence. The European Court of Human Rights held (at §68) that “although the detailed procedures and conditions to be observed do not necessarily have to be incorporated in rules of substantive law”, a law which confers a discretion
Having regard to the obscurity and uncertainty in English law then as to whether a communication passing through postal services could be intercepted by police only pursuant to a valid warrant and the extent to which the circumstances in which a warrant might be issued were themselves circumscribed by law, the Court held that English law did not indicate with reasonable clarity the scope and manner of exercise of the authorities’ powers to intercept communications (see §§70‑79). 64.In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, the measure in question was a provision in the Civil Service Act of Antigua and Barbuda that prohibited a civil servant from publishing “any information or expressions of opinion on matters of national or international political controversy”. The Eastern Caribbean Court of Appeal accepted that the prohibition would, on its own, infringe the applicant’s freedom of expression, but held that the prohibition was qualified by another provision in the Constitution so that it only applied where the civil servant’s forbearance from such publication was “reasonably required for the proper performance of his official functions”. In the opinion of the Privy Council, however, that guidance was not sufficiently precise to secure the validity of the provision and that even under the formulation suggested by the Court of Appeal, the civil servant would be “left with no clear guidance as to the exercise of his constitutional rights” (see pp 78F‑79A). 65.In HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, the relevant issue was whether s 11 of the Administrative Instructions for Regulating Admittance and Conduct of Persons issued by the President of the Legislative Council, which required persons within the precincts of the Council premises to “behave in an orderly manner”, fell foul of the “prescribed by law” requirement as being too vague. The Court of Final Appeal held (at §91) that in the light of the context and purpose of the provision as illuminated by other relevant provisions, no one could be in doubt that creating a disturbance by demonstrating in the public gallery while a sub‑committee was sitting, as the appellant had done, constituted a contravention. 66.I propose to analyse the present case below by reference to the following signposts:
Nature and purpose of the fundamental rights concerned 67.It is not in dispute that the freedom of expression and the freedom of assembly and demonstration are engaged in the present case. These are fundamental rights, precious to the society of Hong Kong and its way of life, which are afforded generous interpretation by our courts so as to give individuals their full measure. Restrictions on these rights are narrowly interpreted and the burden lies on the Government to justify any restriction; see Leung Kwok Hung at §16. Concomitant with these rights is the Government’s positive duty to take reasonable and appropriate measures to enable assemblies and demonstrations to take place peacefully: Leung Kwok Hung at §§22‑24. 68.It would, however, be myopic to see the issue merely as a question of an individual’s rights. It has long been realised that there is a public and collective interest in upholding these rights. Lord Denning MR put it thus in Hubbard v Pitt [1976] QB 142, 178 (quoted by Bokhary PJ in Leung Kwok Hung at §119):
Likewise, as the majority of the Court of Final Appeal stated in Leung Kwok Hung at §2:
69.As noted above, the statute here regulates not assemblies or demonstrations as such but the display of bills or posters, including those used at assemblies and demonstrations, with a degree of permanence and habitual regularity. Nevertheless, the freedom of assembly and demonstration are, together with the freedom of expression, engaged because these rights extend in various dimensions including the manner and form of their exercise: see HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425, §§40‑43. Thus in Mayor of London (on behalf of the Greater London Authority) v Hall [2011] 1 WLR 504, Lord Neuberger of Abbotsbury MR stated (at §37):
Similarly, in Tabernacle v The Secretary of State for Defence [2009] EWCA Civ 23, Laws LJ said (at §37) that in some cases, the “manner and form” of the demonstration may constitute the actual nature and quality of the protest itself. 70.Banners have been an adjunct of demonstrations for a long time and in many places. They are a primary physical means by which demonstrators visually communicate their messages to others. To restrict the display of banners is, in my view, a serious inroad into the protected freedoms. Nature and extent of the restriction 71.In its application to bills or posters displayed in demonstrations on any Government land with a degree of permanence and habitual regularity, s 104A confers a discretion upon the Director[23] to decide whether or not to give approval. Without such approval, the persons who so display the bills or posters commit an offence and the materials are liable to be removed by the Director at those persons’ expense. 72.It is recognised that s 104A imposes a requirement for approval, not an absolute prohibition, for prolonged display of banners. Further, the Court of Appeal has held in this case that requiring prior approval is not in itself an unlawful infringement of the applicants’ fundamental rights: see §§80 & 85 of the Court of Appeal’s decision; see also Butler v Derby City Council [2006] 1 WLR 1346, §§39 & 47. 73.Still, it cannot be disputed that in this way, s 104A empowers an executive authority to exercise prior restraint, backed by criminal sanctions, over the display of bills or posters in assemblies and demonstrations with a degree of permanence and habitual regularity. Such prior restraint on the exercise of fundamental rights does “call for the most careful scrutiny” on the part of the court: The Observer and The Guardian v United Kingdom (1991) 14 EHRR 153, §60; Hashman v. United Kingdom (2000) 30 EHRR 241, §32; Leung Kwok Hung at §137, per Bokhary PJ.[24] Consequences for the person restricted 74.The statutory scheme criminalises display of bills or posters without approval. The specified penalty is a fine at Level 3 (which is equivalent to $10,000[25]) and, for a continuing offence, an additional daily fine of $300.[26] I was told that in fact the applicants have been charged and face prosecutions pending the outcome of these proceedings. 75.Moreover, in April 2013, the banners, bill boards and portable frames of the applicants and other Falun Gong demonstrators were compulsorily removed by the officials of the Food and Environmental Hygiene Department from the demonstration sites. The evidence states that by end of May 2013, over 130 banners and 480 placards had been removed from various demonstration sites. The applicants complain that because of these actions, they have become “very nervous” in carrying out their demonstrations and have reduced the display materials used, impairing their ability to communicate with the public. 76.The respondents submitted[27] that the statute only restricts one mode of expression by Falun Gong demonstrators, and does not prevent them from communicating the same messages by other means. This is of course true, but the gravity and consequences of a limited restriction may vary depending on the circumstances of each case. In the present case one is concerned not only with the freedom of expression but also the freedom of demonstration. Falun Gong demonstration sites had existed in those forms for over ten years by 2013. The visual impact through their banners is without doubt a significant part of the demonstrations. The restriction placed would mean that while the demonstrations could continue, the demonstrators could not use banners or placards without prior approval except perhaps ambulatory ones[28] and those without a degree of permanence and habitual regularity. In the operational guidelines issued by the Food and Environmental Hygiene Department, it was stated that no action would be taken against “walking” bills or posters, ie those held by hand or hung on the body. This had given rise to a complaint at one stage that the policy discriminated against the weak‑bodied demonstrator: see Poon J’s judgment §153‑155. Purposes served by the restriction 77.The purpose of the statutory scheme has been analysed by Poon J in his judgment at §§81‑91, which, as summarised by counsel for the respondents, is as follows:
78.On behalf of the applicants, Mr Harris did not disagree in broad terms with this analysis, except that he submitted that the principal purpose of the statutory scheme was and remains the regulation of display of unattended bills and posters, and not those being used by demonstrators however habitually the demonstration takes place. 79.In particular, he pointed out that the kind of chaos that the statutory scheme seeks to control has relevance principally for unattended bills and posters because any public order concerns created by use of banners by demonstrators would fall within the purview of and be adequately dealt with by the Public Order Ordinance and other laws designed for that purpose. 80.This may be relevant to the proportionality argument but for present purposes, even if some of these purposes are not served by s 104A alone or even principally but by other specific statutes, it does not mean that they are not objects and purposes that may properly inform the exercise of the discretion confined by the Ordinance. Explicit or implicit limits on the discretionary power 81.S 104A(1)(b) is wholly silent as to the basis on which approval may be granted or withheld. It gives a general power to the Director to refuse approval on any ground, without even providing a list of general concepts for guidance, in contrast with s 14(1) of the Public Order Ordinance, which was the subject matter in Leung Kwok Hung. S 104A is even wider in this respect and is essentially “unfettered” in the sense explained in §57 above. 82.The respondents pray in aid various public law principles that inform or place limits on the exercise of statutory powers. Thus it is argued that general powers conferred by legislation are limited by, and can only be exercised in accordance with, the objects and purposes of the statute: Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997, 1054G, 1060E‑G. Granted that the exercise of power under s 104A(1)(b) must be rooted in protecting the cityscape, balancing the use of public space by different segments of the citizenry, preventing chaos and conflicts in the competition for such space, and promoting road safety, I do not think that in the present context this principle gives sufficient guidance. These are matters that can point in many directions. For example, they have been construed by the respondents as permitting the decision‑maker to take account of the content of bills and posters to see if they are “objectionable” (see Part 7(b)(iv) of the Management Scheme). The respondents have apparently interpreted the purpose as mandating or enabling them to prevent the display of, inter alia, “lurid pictures”, “defamatory” messages and nuisance caused by “accusations and counter‑accusations, and cacophony of messages all done for one cause or another”.[29] These show the width of the use to which the power may be put at the discretion of the Director or Lands Department officials even as guided by the objects and purposes of the statute. In my view these “objects and purposes” give insufficient guidance under the “prescribed by law” principle. 83.As the European Court of Human Rights emphasised in Centro Europa 7 Srl v Italy (2012) 32 BHRC 417 at §§141‑143, one of the requirements flowing from the expression “prescribed by law” is foreseeability, and
84.The present case may be distinguished from Francis v Chief of Police [1973] AC 761, where a person was convicted of using a loudspeaker in a public meeting without permission of the Chief of Police, contrary to a requirement in the Public Meetings and Processions Act 1969 of the State of St Christopher, Nevis and Anguilla. There it was conceded that the freedom of assembly and demonstration was not engaged (see p 765H), leaving only the question of freedom of expression. The Privy Council thought that regulation of the use of loudspeakers was required to protect citizens from “aural aggression”. They considered that the Chief of Police was not without guidance because the object of the Act was to facilitate the preservation of public order. The Constitution there qualified the fundamental rights by reference to what was “reasonably required in the interests of … public order”, which the Privy Council considered to be wide enough to cover action taken for the avoidance of excessive noise seriously interfering with the comfort and convenience of other persons (see p 766E, 772E‑773A). 85.Reliance was also placed by the respondents on Hong Kong Television Network Ltd. While there is valuable guidance in Cheung CJHC’s judgment that one should adopt a “holistic approach” taking account of all relevant requirements and characteristics of the common law, on the facts it was quite a different case. The context was the power to grant free domestic television licences under s 10 of the Broadcasting Ordinance (Cap 562). While the freedom of expression was engaged in broadcasting, as Stock JA said in Ocean Technology at §69, “no person has a right to a broadcasting licence”. The question was whether the fact that “public interest” might be taken into account rendered the discretion too uncertain. The decision‑maker was the Chief Executive in Council, the apex of the executive government of the Hong Kong SAR, who one might think was uniquely well placed to consider questions of public interest. There was also some guidance in government policy and objectives already announced and in a guidance note issued by the Broadcasting Authority. 86.The respondents also submitted that in public law there is a requirement of fairness, which is “the bottom line of the requirement of legal certainty”: Hong Kong Television Network Ltd, §95. In that case, what was considered significant was that fairness required the Chief Executive in Council to give the applicant a fair opportunity of being heard in relation to material matters, including in particular matters not reasonably foreseeable at the time when the application for licence was submitted, such as the “gradual and orderly approach” which was introduced after the application was made (see §§96‑97 of the judgment of Cheung CJHC). 87.Mouvement Raelien Suisse v Switzerland (2013) 56 EHRR 14, cited by the respondents in relation to the proportionality ground, does not assist in the present context. It was a case concerning a poster campaign by a branch of the Raelian Movement which was prohibited by a municipal authority in Switzerland. The poster would feature “The Message from Extraterrestrials”. The European Court of Human Rights held that the interference with the freedom of expression was justified. However, it was a case concerning unattended posters, not banners used in demonstrations, so that the freedom of assembly and demonstration was not engaged. No issue arose as to whether the restriction was prescribed by law, as the municipal law empowered the police to prohibit posters that were immoral and the poster in question was banned by the Swiss authorities on that ground among others (see §§16‑21, 25). The principal question was proportionality, and in considering that question the Court took the view that what the applicant wished to convey by the poster was closer to commercial speech than to political speech per se (§62). 88.The respondents submitted that it must be implicit that in considering an application under s 104A(1)(b), the Director “should have regard to” the applicants’ constitutional freedoms of demonstration, assembly and expression.[30] This argument carries little weight in the present context, because to say that the exercise of a discretionary power must comply with a citizen’s constitutional right begs the question, offering no guidance either to the citizen or the official. Nor has the Director explained how he would “have regard” to these constitutional freedoms. As O’Regan J said in Dawood, Shalabi and Thomas v Minister of Home Affairs 2000 (3) SA 936 at §54:
89.Moreover, O’Regan J explained in §46 as follows (footnote omitted):
90.It is not enough, in a case such as the present, to confer an unbridled power and then leave it to the Director of Food and Environmental Hygiene or the Chief Estate Surveyor, Senior Land Executive and Principal Survey Officer (Estate) of the Lands Department to determine when fundamental freedoms of expression, assembly and demonstration should be restricted by refusing approval for, and thereby criminalising, the display of banners. 91.The respondents also prayed in aid the Management Scheme, which was accessible to the public, as providing further guidance. It was submitted that a public authority who has promulgated guidelines or policies for the exercise of discretion must generally follow those guidelines or policies unless there are cogent reasons for not doing so: Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority (No 2) (2006) 9 HKCFAR 478, §26. 92.In my opinion this is not an answer in this case because, as is by now clear, the Management Scheme does not apply on the facts. First, although the scheme was devised in 2003 at a time when Falun Gong demonstrations were already regularly held at many of the sites in question, it does not cover any of the sites here, none of which is a designated roadside spot under the scheme. 93.Furthermore, applications for approval under the Management Scheme are not open to individuals except members of Legislative Council or District Council. While there is an association in Hong Kong called “Hong Kong Association of Falun Dafa”, its membership is not mandatory for Falun Gong adherents. It consists of a small number of veteran Falun Gong practitioners, and most Falun Gong practitioners in Hong Kong, including the applicants in these proceedings, are not its members. 94.The respondents submitted that there is nothing to prevent that association from making an application under the Management Scheme for Falun Gong adherents generally. Let it be assumed that the association falls within “non-profit making bodies for the display of publicity materials serving the local community” (see Part 2 of the Management Scheme). But while there is evidence from the respondents that the association had applied for permission for a mass practice in Victoria Park and a photography exhibition outside the Cultural Centre in 2000, the evidence from Mr Hui, a director of the association, is that it mostly organises one‑off events like the two examples mentioned by the respondents rather than Falun Gong demonstrations, most of which are organised by individual practitioners or groups of practitioners who in most cases are not members of the association. In particular, demonstrations at the “truth clarification sites”, where enforcement action was taken pursuant to the Decisions under challenge here, are all organised by individual practitioners or groups of practitioners without any central co-ordination or active involvement of the association. 95.The respondents themselves submitted that, where an application falls outside the scope of the Management Scheme, the Director’s discretion must nevertheless be guided by the context and purpose of the statute.[31] The Director may of course in a particular case choose to take into account the Management Scheme. But there is no guidance in law that he will do so. Even in the evidence describing the Director’s practice, it is said, not that the Director will take the Management Scheme into account, but that he will take into account the comments of the relevant government authority or department responsible for managing the venue in question “which should consider all relevant factors, including but not limited to the criteria set out in the Management Scheme” (see §59 above). In the affirmations of two Assistant Directors of the Lands Department, it was said that in deciding whether or not to grant permission, the Authority under s 104A would take in account “the principles behind the Management Scheme (where applicable)”.[32] 96.It was unclear in 2013 how individual demonstrators were expected to make an application for approval of his banners and in what way and to which Government department and according to what criteria such an application would be processed and determined. 97.Mr Harris submitted that even if the Management Scheme applies, whether Falun Gong banners are for “promotion of public awareness of matters of general and significant community interests of non‑commercial nature” and whether they are of an “objectionable nature” (see Part 7 of the Management Scheme) are wholly subjective and unclear. As the question does not arise in this case it is unnecessary to deal with it. 98.There is a statement in the evidence that any request for approval that is not covered by the Management Scheme will be dealt with by the Director on a “case by case basis” (see §59 above). In the context of the challenge that the restriction is not “prescribed by law”, this is of course the complaint rather than the solution. As an example, in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at §34, Li CJ said that the “prescribed by law” requirement could not be satisfied by immigration officials exercising their general discretionary powers in considering the imposition of restrictions on constitutional rights on a case by case basis at immigration counters at entry points. Persons to whom the law is addressed 99.The law in question is primarily addressed to two classes of persons, namely, the Director and the Lands Department officials with whom he shares the power on the one hand, and on the other hand members of the public who wish to display bills or posters in public places including, in the context of this case, persons who wish to display banners as part of their prolonged demonstrations. I have already touched on the position of the officials above. As to demonstrators, it seems to me that the statute, with all the common law constraints to which the respondents are admittedly subject, does not give an adequate indication of the scope of the discretion or the criteria that may be taken into account. Even with the benefit of legal advice, which not many demonstrators may be in a position to obtain, it is difficult to foresee how they ought to conduct themselves if they remain intent upon conveying their message through demonstrations and banners. Conclusion on the “prescribed by law” ground 100.Recognising that the threshold for a holding of vagueness is relatively high (see eg Hong Kong Television Network Ltd, §88), I have come to the conclusion for the above reasons that s 104A(1)(b) as applied to the facts of the present case imposed a restriction on the applicants’ freedom of expression, assembly and demonstration that did not sufficiently meet the “prescribed by law” requirement. The second ground — proportionality 101.As mentioned in §39 above, Poon J and the Court of Appeal have both held that a requirement of approval for display of bills or posters used in conjunction with a demonstration is not in itself a disproportionate restriction on fundamental rights: see Poon J’s judgment at §139; Court of Appeal’s judgment §§80, 84 & 85, quoted in §39 above. It follows that the applicants cannot, in this court, maintain such a challenge. Nor can they circumvent this stricture by saying that “what is challenged is [the statute’s] application to demonstrators’ banners”.[33] 102.On this basis, much of what the applicants submitted seems to me to fall outside the permissible scope of the applications. For example, Mr Harris’s argument that it is unnecessary to hold that demonstrators’ banners are regulated by s 104A because there are other laws that can deal with any mischief seems to me to run counter to the Court of Appeal’s decision. 103.What the Court of Appeal had in mind in giving leave on the proportionality ground seems to me to be directed at the substantive process of the decision‑making under s 104A(1)(b) including, in particular, whether or not content‑screening would be involved and if so the criteria to be applied: see Court of Appeal’s judgment §§66, 86‑87. It was envisaged that further evidence would be filed which would shed light on this aspect. 104.But the affirmations filed by the respondents after the Court of Appeal’s decision do not in my view contain a sufficient and proper basis for a proportionality analysis. I do not say this by way of criticism, for in fact the Director has not received any application under s 104A that falls outside the scope of the Management Scheme. Thus, it was said, in the affirmation from the Food and Environmental Hygiene Department parts of which I quoted in §59 above, that should an application be received in future, the Director would consider it “on a case by case basis”. The process was then further described, albeit in the abstract. The evidence stops conspicuously short of saying that content will not be taken into account, but how content will be assessed remains unclear. Insofar as the Management Scheme is relevant, either as directly taken into account by the Director, or indirectly via the comments of other government departments, it is to be noted that content may be relevant to whether the bills and posters contain “matters of general and significant community interests of non‑commercial nature” or are of an “obscene or objectionable nature” (see Part 7 of the Management Scheme). There was also no disclaimer of content-screening in the affirmation from the Lands Department. All that was said was that there would be “no question of any censoring of such applications for the mere fact that the Applicants were Falun Gong practitioners”.[34] In their submissions, counsel for the respondents stated that “the restrictions on contents are proportionate to achieve the legitimate aims”.[35] Quite how content would be taken into account is, however, unknown, but would be important for a proportionality analysis. For example, there would be, to my mind, a great difference between screening bills or posters for obscene content and screening them for anti-government messages however defamatory they might be. 105.In these circumstances, I have given anxious consideration to whether there is any point in proceeding to deal further with the proportionality ground, and have come to the conclusion that there is none. On the facts, no application has been made by these applicants for permission under s 104A(1)(b). Because no application has ever been received by the Director from anyone at all, the evidence filed as to how an application would be processed is understandably general and hypothetical in nature, and as explained above leaves much to conjecture as to how content might be taken into account. In addition I have already come to the conclusion that the applicants succeed on the uncertain criteria point under the “prescribed by law” ground. It seems to me to be unwise, especially on constitutional questions, to try to set up some assumed facts and then give a legal opinion on them. 106.I do not understand there to be a separate available argument that assuming s 104A is proportionate and constitutional, the decisions to enforce it by way of removal of the banners under s 104C are nevertheless disproportionate and unconstitutional. Enforcement is the subject matter of internal operational guidelines issued by the Department of Food and Environmental Hygiene, which were discussed in Poon J’s judgment at §§145‑147. Although Mr Harris mentioned the argument in his reply[36], they were not raised in the Forms 86.[37] Indeed the applicants themselves submitted that, if the law is otherwise valid, it is the duty of the responsible authorities to enforce it.[38] Nor does such argument seem to me to fall within the ground for which leave was given by the Court of Appeal. 107.For these reasons the proportionality ground falls away. I. Conclusion and orders 108.As stated in §100 above, on the facts of the present case, the restriction imposed by s 104A(1)(b) on the applicants’ freedom of assembly, demonstration and expression fails to meet the “prescribed by law” requirement. As the Court of Appeal observed (at §57 of their judgment), s 104C is not a free‑standing provision. The power to remove bills or posters under s 104C(1) is premised on their being displayed in contravention of s 104A(1). Accordingly, the Decisions, which were all taken under s 104C(1), cannot stand. There will be an order for certiorari to quash the Decisions. 109.In their Forms 86 the applicants sought a declaration that s 104A does not prohibit or require approval to be obtained for reasonable display of banners or placards at moving or static demonstrations. In his submissions Mr Harris said that the word “reasonable” was not necessary. He also proposed an alternative declaration that s 104A(1)(b) does not apply to any bill or poster displayed and attended to at any demonstration. I decline to grant any of these declarations, which seem to me geared towards the applicants’ construction argument which was rejected by the Court of Appeal. 110.There will be an order nisi that the respondents pay the costs of the applicants with a certificate for two counsel, and that the applicants’ own costs be taxed in accordance with the Legal Aid Regulations.
Mr Paul Harris SC and Ms Linda Wong, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the Applicants Mr Benjamin Yu SC, Mr Johnny Mok SC and Mr Johnny Ma, instructed by Department of Justice, for the Respondents and Interested Party [1] See Poon J’s judgment of 15 October 2014, reported at [2014] 5 HKLRD 771. [2] CACV 219 & 220 of 2014, 6 June 2016, Cheung CJHC, Lam VP and Barma JA. [3] There are 13 of such locations in total. Each of them is marked with an asterisk in the list at the Annex. Although strictly the present judicial review proceedings do not concern the other 13 locations not attended by the applicants, no issue has been taken if they have the locus to mount the challenge in respect of those locations. [4] Registered under the Societies Ordinance, Cap 151 since 8 July 1996. [5] See Affirmation of Lam Wai‑Ha, Olga, §57; Affirmation of Chan Chung Chi, §9. [6] §30 of Poon J’s judgment. [7] Poon J’s judgment §§81‑91. [8] Poon J’s judgment §§92‑98. [9] Poon J’s judgment §114‑118. [10] Poon J’s judgment §§142‑148. [11] Poon J’s judgment §§119‑141. [12] The applicants applied to the Court of Final Appeal for leave to appeal (FAMV 42 & 43 of 2016). On 8 February 2017, the applications were ordered by the Appeal Committee of the Court of Final Appeal to be adjourned sine die with liberty to the parties to apply for them to be restored, pending the outcome of the proceedings remitted by the Court of Appeal as explained below. [13] Court of Appeal’s judgment §§41, 44, 45. [14] Court of Appeal’s judgment §42. [15] Court of Appeal’s judgment §43. [16] Court of Appeal’s judgment, Section H, §§76‑83. [17] Court of Appeal’s judgment §§80, 85. The applicants also applied to the Court of Final Appeal for leave to appeal in relation to this ground. [18] See Court of Appeal’s judgment at §§23 and 29. [19] See Court of Appeal’s judgment at §§24‑25. [20] As envisaged in the Court of Appeal’s judgment at §31. [21] §41 in HCAL 73/2013 and §56 in HCAL 110/2013. [22] §44 in HCAL 73/2013 and §59 in HCAL 110/2013. [23] Where the land falls within s 104E(1)(f). [24] While Bokhary PJ dissented in the result in that case, it does not seem that his reliance on Hashman in connection with the approach to prior restraint was controversial. [25] See s 113B of and Schedule 8 to the Criminal Procedure Ordinance (Cap 221). [26] See s 150 of and the 9th Schedule to the Ordinance. [27] Albeit in the context of the proportionality ground. [28] See §28 of Poon J’s judgment, quoted at §3 above. A superintendent of the Food and Environmental Hygiene Department had apparently told the applicants they could only use hand‑held displays not touching the ground: affirmation of Hui Kwok Hung, §48. [29] See Affirmation of Lam Wai‑Ha, Olga, at §§46‑49. [30] Skeleton Submissions for the Respondents and Interested Party, §29. [31] Skeleton Submissions for the Respondents and Interested Party, §30. the Director will take into account relevant factors “including but not limited to the criteria set out in the Management Scheme”. But there is no published statement or guidance that the scheme would be relevant to areas not covered by it or to any application made to the Director rather than the Lands Department. [32] Affirmation of Lam Wai‑Ha, Olga, §58, and Affirmation of Cheung Ka Lok, §15; italics added. [33] Applicants’ Skeleton Argument, §34. [34] Affirmation of Cheung Ka Lok, §17. [35] Skeleton Submissions for the Respondents and Interested Party, §77. [36] See Reply Speaking Notes for Applicants, §§11‑15. [37] See Form 86 §§45‑67 in HCAL 73/2013; Form 86 §§60‑84 in HCAL 110/2013. [38] Applicants’ Skeleton Argument, §22(vi). | |||||||||||||||||||||||||||||||||||||
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