Cheung Tak Wing v. Director of Administration

HCAL 136/2014

[2018] HKCFI 2557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 136 OF 2014

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Before: Hon Au J in Court

Date of Hearing: 6 September 2017

Date of Further Written Submissions: 31 October 2017

Date of Judgment: 19 November 2018

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J U D G M E N T

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A.     INTRODUCTION

1.In this judicial review, the applicant seeks to challenge the constitutionality and lawfulness of:

(1) The scheme (“the Permission Scheme”) set up and implemented by the Director of Administration (“the Director”) requiring applications be made for use of the East Wing Forecourt[1] (“the Forecourt”) of the Central Government Offices at Tim Mei Avenue for public meetings and processions.

(2) The Director’s decision (“the Decision”) made on 17 September 2014 to refuse the applicant’s application to use the Forecourt for the holding of public meeting under the Permission Scheme.

2.Effectively under the Permission Scheme:

(1) The Forecourt is only open to the public on Sundays and public holidays from 10:00am to 6:30pm for holding public meetings and processions upon application to the Director and the latter’s approval.

(2) In other words, the Forecourt is not open to the public on all weekdays and Saturdays for holding public meetings and processions.

(3) Moreover, permission to use the Forecourt for public meetings and processions on Sundays and public holidays has to be obtained first from the Director irrespective of the number of persons involved.

(4) Approval to use the Forecourt for public meeting and procession given may be withdrawn at any time without any prior notice.

(5) Only when the Director gives permission for access to specified areas within the Forecourt areas will become public places under the Public Order Ordinance (Cap 245) during the specified hours.

3.In this challenge, the applicant says the Permission Scheme is unconstitutional as it amounts to unjustified restrictions on (a) the rights to freedom of expression and peaceful assembly protected under Article 27 of the Basic Law (“BL27”) and Articles 16 and 17 of the Hong Kong Bill of Rights (respectively “BOR16” and “BOR17”); and (b) the right to take part in the conduct of public affairs protected under Article 21(a) of the Hong Kong Bill of Rights (“BOR21(a)”).  In the premises, the Decision made pursuant to it is also unlawful.

4.The applicant therefore asks for a declaration that the Permission Scheme is unlawful and unconstitutional.  He also asks to quash the Decision.

5.The applicant is represented by Ms Gladys Li, SC (together with Mr Jeffery Tam).  The Director, opposing this application, is represented by Mr Johnny Mok, SC (together with Mr Johnny Ma).

6.Before I consider the arguments raised in this application, it is helpful to first set out the relevant background related to this present challenge.

B.   BACKGROUND

B1.  The Central Government Offices and the Forecourt[2]

7.The Central Government Offices (“the CGO”), the Chief Executive Office (“the CEO”), the Legislative Council Complex (“the LCC”) and the Tamar Park collectively occupy the Tamar Site.  The Site was allocated to the Director under a Permanent Land Allocation.

8.The CGO has two wings: East Wing and West Wing.  The Forecourt is located outside the East Wing.

9.The Forecourt is designed and designated as an integral part of the CGO and is under the management responsibility of the Director.

10.In summary, the Forecourt serves the following functions:[3]

(1) The Forecourt is part of the CGO (where key government functions are performed), and it serves the CGO as a vehicular circulation area of the CGO for passenger pick-up and drop off, with a platform constructed for the daily raising and lowering of the national and regional flags.

(2) The pavement in the Forecourt is used as a passageway (“passageway”) for those working at, and visitors to, the CGO and the LCC.  The pavement in the Forecourt occupies only a specific portion of the Forecourt.[4] It is only this part of the Forecourt which is used as pedestrian passageway for the staff and visitors to access the CGO and the LCC, whereas the remaining parts of the Forecourt are reserved for vehicular circulation and as a flagstaff platform.  Upon the reopening of the Forecourt on 10 September 2014 following the completion of the perimeter fencing project, the daily opening hours of the passageway were limited to 6am to 11pm, although LegCo Members and personnel holding valid staff ID cards or media permits were allowed access during the closing hours.

(3) Notwithstanding the above, public access to the pavement as a pedestrian link to the footbridge via escalators would be suspended on security grounds or to meet other specific operational needs.

(4) Upon application to and approval from the Director under the Permission Scheme, public order events (“POEs”) are permitted to be held in the Forecourt on Sundays and public holidays during specified hours from 10:00am to 6:30pm, on first-come‑first-served basis (some leeway of one hour before and after the scheduled event is allowed for venue set up or clearance).

(5) Public access to the flagstaff platform is restricted at all times even during the course of public meetings or processions approved under the Permission Scheme on Sundays and public holidays.  As a precautionary measure, the flagstaff platform would be cordoned off by mills barriers with security guards deployed to station there during the course of the public meeting or procession.

B2.    Public access to the Forecourt and the rationale for implementing the Permission Scheme[5]

11.Prior to the commissioning of the CGO at the Tamar site, the Government has presented to the LegCo Panel on Security on 29 August 2011, vide an information paper on “Security Arrangements and Handling of Public Meetings and Public Processions at the Central Government Offices and during Visits of Political Dignitaries to Hong Kong”, the proposed arrangements for members of the public to conduct POEs at the Tamar, which can be summarized as follows:

(1) Members of the public can submit petition letters to the Government outside the Forecourt;

(2) Members of the public can conduct POEs in the Forecourt on Sundays and public holidays upon application to and approval from the Administration Wing (“the Admin Wing”) (ie, the Permission Scheme); and

(3) Individual members of the public or representatives of organisations may enter the designated area at the main entrance of CEO for handing petition letters to the CE and other Members of the Executive Council (“the ExCo”) on the days when the ExCo holds its regular meetings.

12.These arrangements have been implemented since the commissioning of the new CGO in late 2011, and are generally the same as those implemented for the former CGO at Lower Albert Road.

13.Historically, when the open compound of the former CGO at Lower Albert Road was formally allocated to the then Director in 2002, the then Director as the land allocatee recognized the need to facilitate public expression of opinions while maintaining the orderly and effective operation at the former CGO.  Measures of access control were put in place at the open compound of the former CGO whereby the designated public activity area (“DPAA”) which used to be at the open compound was relocated to an open area outside the West Gate near Battery Path; access to the compound was restricted only to those members of the public who had business with offices there; and the holding of public meetings or processions at the open compound required prior permission which was in essence the same as the arrangement under the Permission Scheme.  In other words, public meeting or procession on working days was not allowed and the then Director’s prior permission was similarly required before any public meeting or procession could be held inside the open compound on Sundays and public holidays.

14.It is the Government’s position that the Forecourt is not a public place or a public open space, and the public (in the absence of the requisite licence or permission) do not have any right of access to it. The Government as landowner has a private right to exclude members of the public from the use of the Forecourt, or impose restrictions or rules to regulate its use.  Members of the public passing through the Forecourt area and those who are granted permission to use the Forecourt for public activities are licensees.  The setting up and implementation of the Permission Scheme and the erection of the perimeter fence at the Forecourt involved the exercises of private right of the Government as a landowner for better management of its land.

15.As mentioned above, under the Permission Scheme, members of the public may apply to the Director for holding public meetings or processions at the Forecourt on Sundays or public holidays during specified hours from 10:00am to 6:30pm, on a first-come-first-served basis.  Irrespective of the number of participants involved, holding a POE at the Forecourt requires prior permission of the Director.  Members of the public may apply to the Director by filling in and submitting an application at least two days prior to the event. An application to conduct POEs at the Forecourt may be made by the completion of an application form which can be downloaded from the website of Admin Wing. The application form is accompanied by the “Guidance Notes to the Application for Permission to Use the Forecourt for Public Meetings/Processions and Submission of Petition Letters” (“Guidance Notes”), and both documents can be downloaded from the Admin Wing’s website or obtained by calling the Admin Wing directly.

16.Upon receipt of the application, the Admin Wing will seek the advice of the Police on any potential threat to public order and safety before granting approval.  Pertaining to the approval given, the use of the Forecourt for public meetings or processions is subject to a set of users’ conditions (“the Users’ Conditions”) as promulgated and attached to the application form.

17.The Director’s rationale for specifying the opening hours of the Forecourt for POEs on Sundays and public holidays is this:

(1) The Tamar Development is a critical government structure as well as the most prominent government premises in Hong Kong.  The CGO houses the key leadership personnel and most of the Principal Officials of the Government of the Hong Kong Special Administrative Region.  Disruption to their normal operations will have significant adverse impact on the smooth running of the Government, undermining the confidence and stability of Hong Kong.

(2) Hence, under the Permission Scheme, the Forecourt is made available for holding public meetings or processions with permission only on Sundays and public holidays from 10:00am to 6:30pm.  The specified hours are considered to represent the prime time for holding POEs. It is also the prime time for media coverage of the demonstrations.  In the event public holidays fall on consecutive days, the Forecourt can cater for booking by more groups.  In the event the day after the public meeting is a normal working day, time is required for venue management to make necessary preparations to reinstate the Forecourt for daily functioning.

18.It is also the Director’s position that there are practical difficulties for opening the Forecourt as a POE venue on normal working days (including Saturdays) even after the normal office hours, as there could be meetings, events and other official functions held at CGO during such times.  The Forecourt will be required to perform its function as the passageway and drop-off and pick-up area.  Admin Wing needs to ensure that the Forecourt pavement would provide a pedestrian link to the footbridge via the escalators for members of the public during its opening hours (ie, between 6:00am and 11:00pm daily) as far as practicable, save for such circumstances when public access has to be temporarily suspended on security grounds or to meet other specific operational needs. Admin Wing therefore has to strike an appropriate balance between the need to maintain the Forecourt under operative condition for the normal operation of the CGO and the LCC on the one hand and the public’s desire to hold POEs at the Forecourt on the other hand.

19.Notwithstanding the specified hours for POEs between 10:00am and 6:30pm on Sundays and public holidays, there had been occasions when the event organizers requested for and were (where appropriate) given some extra time for venue setup or clearance, up to one hour before the scheduled starting time and after the scheduled ending time.  As a result, the Forecourt may need to be used for POE related activities starting as early as 9:00am or up to 7:30pm or even later in the evening.

20.Thus, in deciding to put in place the Permission Scheme, the Director had taken into account (among other matters) the fact that the CGO is government property and the land on which it occupies has been allocated to the Director who is required to manage the area and premises in a safe, clean and proper manner.  The Director, being the land allocatee, has the responsibility to exercise appropriate control and restriction on the use of the Forecourt, having regard to public order and public safety.  In particular, as the Forecourt is required to function as the passageway and drop-off and pick-up area during normal working days (including Saturdays) for use by staff and visitors to the CGO and the LCC, any public staging demonstrations at the driveway of the Forecourt may endanger themselves as well as other road users. Their unauthorized spill over to the pavement in the Forecourt whilst staging demonstrations may also cause obstruction to the access of and even pose threat to other normal users of the pedestrian passageway.  The pavement portion of the Forecourt is quite narrow, and hence any public staying on the pavement during working days and working hours would inevitably cause disruption to the visitors to the CGO and the LCC and staff members who need to get into or leave the CGO or go to the LCC.

21.It is the Director’s evidence that he recognizes that the CGO is one of the principal places where the business of Government is carried on and as such the public may wish to make use of the Forecourt for conducting POEs at various times.  The Director considers that it is necessary to strike a balance to facilitate public expression of opinions on the one hand whilst maintaining the orderly and effective operation of the CGO on the other hand.  Having taken all relevant matters into account, including (among others) the function of the Forecourt, the need to maintain the orderly and effective operation of the CGO (particularly the desirability to avoid disruption to the normal operation of the CGO during working days and working hours), the Director had therefore decided to implement the Permission Scheme.

22.It is also the Director’s position that the Permission Scheme has balanced the operational need and the public’s desire to conduct POEs at the Forecourt and has taken into account other relevant factors such as the availability of the nearby DPAA the Forecourt for public meetings and petitioning, as well as the arrangement to facilitate the handing of petition letters to Executive Council members when the Council holds its regular meetings.

B3.  The Guidance Notes and the Users’ Conditions

23.The Guidance Notes provide as follows:

“Central Government Offices at Tamar

The Central Government Offices (CGO), located at Tamar, is government property and the land on which it occupies has been allocated to the Director of Administration, who is required to manage the area and premises in a safe, clean and proper manner. The CGO is not a public place and access to it is permitted only with the prior consent of the Director of Administration.

Use of East Wing Forecourt for Public Meetings/Processions

2. The Administration recognizes and accepts the need to facilitate public expression of opinions whilst maintaining the orderly and effective operation of the CGO. To strike a balance between these considerations, the East Wing Forecourt of the CGO is open to the public on Sundays and public holidays from 10:00 a.m. to 6:30 p.m. for holding public meetings / processions upon application to the Director of Administration and the latter approval. Applications can be submitted in accordance with the application procedures set out in paragraphs 3-6 below.

Application procedures

3. Under the Public Order Ordinance (Cap. 245), a public meeting of more than 50 persons and a public procession of more than 30 persons must be notified to the Commissioner of Police. Interested groups who intend to hold public meetings of more than 50 persons, or public processions of more than 30 persons, inside the East Wing Forecourt are required to notify the Commissioner in accordance with the Ordinance.

4. Access to the East Wing Forecourt is permitted only with the prior consent of the Director of Administration. Applications for holding a public meeting / public procession inside the East Wing Forecourt, irrespective of the number of persons involved, should be submitted to the Director of Administration using the relevant application form. The duly completed application form should be forwarded to the Director of Administration by fax, by hand, or by post, and should reach the Director of Administration at least two clear working days prior to the event. The applicant will be notified of the result within these two clear working days.

5. Any request to enter the East Wing Forecourt to express opinions or conduct public activities will be handled as follows –

(a) the Director of Administration will seek advice from the Police as to potential threat to public order and public safety which may arise should such request be granted; and

(b) once the Director of Administration gives permission for access to specified areas within the East Wing Forecourt the areas will become public places under the Public Order Ordinance during the specified hours.

6. …

Submission of Petition Letters outside East Wing Forecourt

7. Members of the public can submit petition letters to the Government on a section of the pavement of the Tim Mei Avenue, outside the East Wing Forecourt. The arrangements in paragraph 3 above should also be observed, where applicable.” (emphasis added)

24.The Director has also issued a Users’ Conditions[6] which provides as follows:

“Introduction

The Central Government Offices (CGO), including the East Wing Forecourt (hereinafter referred to as ‘the Forecourt’) are government properties, and the land on which they occupy has been allocated to the Director of Administration. The CGO is not a public place and access to it is permitted only with the prior consent of the Director of Administration. The Forecourt is used primarily as a vehicular circulation area for picking up/dropping off of passengers. It is not a public open space.

Use of the Forecourt as a Pedestrian Passageway

2. The Forecourt also provides a pedestrian passageway for members of the public visiting CGO or the nearby Legislative Council (LegCo) Complex. The Public Entrance and the Press Entrance of CGO are located on the East Wing ground floor. Visitors may access the Forecourt via the escalator from the elevated walkway on the podium level, or from Tim Mei Avenue or the LegCo Complex on the ground level.

3. The daily opening hours of the Forecourt as passageway are from 6:00 am to 11:00 pm. It is closed to general access between 11:00 pm and 6:00 am. Only LegCo Members and personnel holding valid staff identity cards/media permits issued by CGO or LegCo will be allowed access during the closing hours.

4. Public access to the Forecourt may be suspended during the opening hours without prior notice in case of emergency or to meet specific operational or security needs of CGO. The Administration Wing may designate certain areas in the Forecourt for the exclusive use of specific purposes, with proper demarcation and protection in such a manner as it sees fit.

5. Visitors are generally permitted to use the Forecourt as passageway only, and visitors who use the Forecourt for any other purpose (for instance, carrying out public activities) without permission from the Director of Administration will be regarded as trespassers and their continued presence regarded as unauthorised. Visitors of the Forecourt are advised to take good care of their personal belongings and they should take such belongings with them when leaving the Forecourt area. Any unattended object(s) found on the premises managed by the Administration Wing, including the Forecourt, will be dealt with as we see fit. The Administration Wing shall not be held liable for any loss of or damage to any such unattended object(s).

6. Visitors gaining access to the Forecourt are required to observe and comply with these conditions of use and any other directions as may be given by the security guards, staff of the Administration Wing or other personnel as authorised by the Director of Administration for purposes of public safety, public order, crowd/access control, or such other measures as may be necessary for management of the Forecourt.

7. The Administration Wing reserves the right to refuse access to the Forecourt by any person or to require any person who has been admitted to leave the Forecourt, if the person has failed to comply with any of these conditions of use, or behaves in a disorderly, offensive or immoral manner, or commits an offence.

Use of Forecourt for Public Meetings/Processions

8. Subject to prior application in writing to and approval of the application by the Director of Administration, the Forecourt may be made available to the public on Sundays and public holidays from 10:00 am to 6:30 pm for holding public meetings/public processions. The application form and the conditions of use of the Forecourt for public meetings/processions may be obtained from the Administration Wing or downloaded from its website at http://www.adminwing.gov.hk.

9. Under the Public Order Ordinance (Cap 245), prior notice of a public meeting of more than 50 persons and a public procession of more than 30 persons must be given to the Commissioner of Police. Applicants who intend to hold public meetings of more than 50 persons or public processions of more than 30 persons using the Forecourt as a venue are required to confirm that such notification to the Police has been/will be made in their application form.

Submission of Petition Letters to Government

10. A section of the pedestrian pavement on Tim Mei Avenue outside the Forecourt has been designated as a public activities area. Members of the public may at any time hold public meetings or submit petition letters to the Government there subject to their compliance with the relevant provisions under the Public Order Ordinance (Cap 245) governing the holding of public meetings/processions.” (emphasis added)

B4.  The applicant’s application and the Decision

25.The applicant is a Hong Kong permanent resident living in Hong Kong.  He is a press photographer and a member of the International Association of Press Photographers.

26.On 20 October 2013, the applicant started protesting at the Forecourt (which he describes it as the “Civic Square”[7]) against the decision of the Chief Executive in Council on or about 15 October 2013 of not granting a Domestic Free Television Programme Service Licence to Hong Kong Television Network Limited.

27.The applicant protested for the abovementioned cause until 3 December 2013, and throughout the period, the applicant stayed overnight in the Forecourt daily, sleeping in a tent that he had set up at its corner.

28.On 4 December 2013, the Government published the “Consultation Document on the Methods for Selecting the Chief Executive in 2017 and for Forming the Legislative Council in 2016” which announced that the public consultation would last for five months, that is, from 4 December 2013 to 3 May 2014.  In light of the publication of the report, the applicant protested for universal suffrage at the Forecourt on 4 December 2013 from approximately 9:00am to 9:00pm daily until the Director’s Decision to Enclose the Forecourt, ie, the last day of the applicant’s protest in the Forecourt was 16 July 2014.

29.On 17 September 2014, the applicant submitted an application for permission to use the Forecourt for a public meeting from 9:00am to 7:00pm on 19 September 2014 (which is a Friday).  By a letter sent by the Director to the applicant, the Director refused the applicant’s application to use the Civic Square on 19 September 2014 (ie, the Decision), providing, among others, the following reasons:

“你的申請時段涵蓋工作天，自添馬新政府總部啟用以來，東翼前地只會在星期日或公眾假期上午十時至下午六時三十分，開放給公眾舉行公眾集會／遊行。在豎設圍欄工程於九月十日完成後，現行申請准許程序繼續維持不變。在上述開放時段以外的其它時間，東翼前地主要用作車輛通道及上落客點，以配合辦公大樓的公務及運作需要，故本署一向不會批准在該處進行公眾活動。由於你的申請使用東翼前地的時間超越上述的開放時段，因此有關申請不獲批准。在接獲你的申請後，本署鄭先生已隨即致電向你解釋有關安排，如你擬在上述日期進行公眾活動，可考慮使用東翼前地外添美道已劃為公眾活動區的一段行人道。”

30.In other words, the applicant’s application was refused on the sole basis that the intended public meeting fell on a weekday. As mentioned above, under the Permission Scheme, no public meetings and processions can be held at the Forecourt on normal working days (including Saturdays).

C.  THE RIGHTS TO FREEDOM OF EXPRESSION, ASSEMBLY AND TO PARTICIPATE IN PUBLIC AFFAIRS

31.The rights to freedom of expression, assembly and participate in public affairs are respectively provided in the following constitutional provisions.

32.In relation to the rights to freedom of expression and assembly:

(1) BL27:

“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 from and join trade unions, and to strike.”

(2) BOR16:

“Freedom of opinion and expression

(1) ...

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary—

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.” (emphasis added)

(3) BOR17:

“Right of peaceful assembly

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.” (emphasis added)

33.In relation to the right to participate in public affairs, under BOR21(a):

“Right to participate in public life

Every permanent resident shall have the right and the opportunity … without unreasonable restrictions—

(a) to take part in the conduct of public affairs, directly or through freely chosen representatives;

…”

34.As accepted by Ms Li, it is well established that the rights to freedom of expression and peaceful assembly, whether under the Basic Law or the Hong Kong Bill of Rights, are not absolute and may be subject to restrictions provided that two requirements are satisfied:[8]

(1) The restriction must be prescribed by law.

(2) The restriction must satisfy the proportionality test, in that (a) the restrictions are to pursue a legitimate purpose; (b) the restrictions are rationally connected to the legitimate purpose; (c) the restriction are not more than necessary to accomplish the restrictions; and (d) whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual.[9]

35.In this respect, Ms Li has confirmed that in the present application, the reliance on the right to participate in public affairs is only to underline the importance of the rights to freedom of expression and assembly, but not as a separate limb under the challenges.  It is Ms Li’s case that the exercise of the right to participate in public affairs underscores the importance of the rights to freedom of expression and assembly, and hence demands even closer scrutiny by the court on any restrictions imposed on the latter rights.

36.With this understanding, when I consider the grounds of challenge below, I would for convenience only refer to the rights to freedom of expression and assembly whenever necessary.

D.   THIS JUDICIAL REVIEW

37.As stated above, the applicant challenges the constitutionality of the Permission Scheme and hence also the lawfulness of the Decision.

38.The grounds raised can be summarized as follows:

(1) The Permission Scheme (and thus the Decision) is unconstitutional as the restrictions on the rights to freedom of expression and peaceful assembly are not justified as they are not prescribed by law (“the Prescribed By Law Ground”).

(2) The Permission Scheme (and thus the Decision) is unconstitutional as the restrictions on the rights to freedom of expression and peaceful assembly are unjustified as they do not satisfy the proportionality test (“the Proportionality Ground”).

(3) The Permission Scheme (and thus the Decision) is unlawful or irrational as it was made under an error of fact (“the Illegality Ground”).

39.I would consider these grounds in turn.  But before I deal with the merits of these grounds, I need to address one matter first.

D1.   The Court of Final Appeal’s judgment in HKSAR v Fong Kwok Shan Christine[10]

40.After the substantive hearing of this application, the Court of Final Appeal has handed down its judgment in HKSAR v Fong Kwok Shan Christine.[11]

41.This judgment has an important and significant impact on the determination of this application.

42.In Fong Kwok Shan Christine, Ms Fong was a district councillor.  She (with some others) was at the public gallery of the LCC on two separate occasions.  On each of these occasions, the LegCo Public Works Subcommittee was holding a meeting to discuss a landfill project in her district.  She and some fellow residents strongly opposed this project.  While at the public gallery, she protested and demonstrated by (a) removing her jacket to show certain characters displayed on her T-shirt; (b) facilitating her assistant to hold up a paper poster (which displayed a complaint message) against the glass panel which walled off the public gallery above the conference room; and (c) chanted slogans opposing the project.  These led to a commotion on the first occasion as the security guards sought to seize the sign, and a warning being given by the chairman of the subcommittee on the second occasion, which they ignored.  As a result, the meeting on the first occasion had to be adjourned, and the other meeting on the second occasion had to be stood down and reconvened in a different conference room, with the public excluded from attendance.

43.She was later charged with the offence of contravening the relevant administrative instructions issued by the President of the LegCo under section 8 of the Legislative Council (Powers and Privileges) Ordinance (Cap 382).  Under the relevant instructions,[12] persons entering or within the LegCo Chambers’ precincts shall “behave in an orderly manner and comply with any direction given by any officer of the Council for the purpose of keeping order” (under A1, section 11) and while in the public gallery, no person shall “display any sign, message or banner” or “display any sign or message on any item of clothing”, and a person may be refused admission to a press or public gallery if he or she displays or may display any sign, message or banner, or if in the opinion of a LegCo officer that person may behave in a disorderly manner (under A1, section 12).

44.Ms Fong was convicted in the Magistracy, which conviction was upheld on appeal by the Court of First Instance.  She appealed to the Court of Final Appeal.  Her main grounds of appeal were that A1, sections 11 and 12 were unconstitutional, as they amounted to unjustified restrictions on her rights to freedom of expression, assembly and demonstration, as they failed the prescribed by law requirement as well as the proportionality test.  The respondent however contended, which was accepted by the lower court, that the rights were not engaged as the LCC (in common with the Government in relation to government-owned properties) was entitled to exercise its property rights (as private property owner) to deny or restrict access to the LCC.[13] In any event, if the rights were engaged, the instructions were prescribed by law and proportionate.

45.The Court of Final Appeal rejected the respondent’s contention that the rights were not engaged, but dismissed the appeal on the grounds that the restrictions were prescribed by law and satisfied the proportionality test.

46.On the issue of whether the rights were engaged, the Court of Final Appeal took the opportunity to review the various authorities both in Hong Kong and other jurisdictions and laid down the principles on how the court should assess and determine the constitutionality and lawfulness of a restriction on the rights to freedom of expression, assembly and demonstration in relation to persons seeking to exercise those rights at another’s property (may it be state-owned government property, commercial property or private property).

47.Relevant for the present purposes, and as far as I can discern, these principles are as follows:

(1) The rights to freedom of expression, assembly and demonstrations, as constitutionally protected rights, are engaged when they are sought to be exercised by the would-be protestors or demonstrators at any kind of properties (whether it is state-owned, government property, commercial property or private residential property).[14]

(2) As private property rights cannot trump fundamental rights, in the context of the exercise of the rights to freedom of expression and assembly, insofar as state-owned or government property is concerned, it is wrong in principle for the government to regard it as having an entitlement as property owner to have an unfettered choice to exclude the public or to grant access.[15]

(3) There therefore should only be one common test to be applied to determine the constitutionality and lawfulness of the restrictions imposed on these rights sought to be exercised at any kind of properties.  The test is the prescribed by law requirement and the proportionality test, as these are the restrictions specified and permitted under the constitutional provisions.[16]

(4) In relation to the proportionality test, it is relevant and necessary to weigh up “the manner, form and impact of each of the demonstrations at the sites concerned” to determine if the restrictions can meet the proportionality analysis.  This is particularly so as the manner and location of the protest is part and parcel of the exercise of freedom of expression.  A proportionality approach enables “individualised and nuanced assessments and caters for the possibility that in exceptional circumstances such rights might be engaged in” even ostensibly improbable places.  Hence, a presumptive exclusionary rule is ill-suited to the task.[17]

48.These principles are binding on this court.

49.In this respect, the court notes that one of the forefront objections raised by Mr Mok for the Director in this application (as similarly raised by the respondent in Fong Kwok Shan Christine) is that the rights to freedom of expression and assembly are not even engaged in the present case as the Forecourt is in nature not a public place.  In light of these principles now laid down by the Court of Final Appeal, this objection needs no further consideration and must be rejected.

50.Bearing these principles in mind, I now turn to look at the grounds of judicial review in turn.

D2.    The Prescribed By Law Ground

51.The principles governing the prescribed by law requirement are not in dispute.  Relevant for the present purposes, they can be shortly summarized as follows.

52.The prescribed by law requirement concerns the requirement to have sufficient legal certainty for any purported limitation of the right of free expression.  However, it is well established that sufficient legal certainty does not mean or require absolute certainty, and that a prescription by law inevitably may involve some degree of vagueness in the prescription which may require clarification by the court.[18]

53.Further, the prescription must be formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.  Further, the fact that doctrine issues may remain and require to be resolved by the court in an appropriate case merely provides an illustration of the common law at work.  The mere existence of debatable issues does not make the law uncertain.  A law that confers a discretion is not necessarily in itself inconsistent with the requirement.[19]

54.Ultimately, the question is answered by whether the law is able to enunciate some boundaries which create an area of risk.  There will be conduct that falls along the boundaries of the area of risk for which no definite prediction or answer can be given in advance; but the identification of the area of risk will provide guidance to citizens and that suffices for the purpose of certainty.

55.In the present case, Mr Mok submits that the setting up and implementation of the Permission Scheme involves the exercise of the Government’s common law proprietary right as the landowner of the Forecourt to set conditions for its use.  The ambit, effect and the exercise of such a right are governed by the common law of property.

56.Ms Li however submits that this does not satisfy the prescribed by law requirement for the following reasons.

57.First, although accepting that the Director has a common law proprietary right to manage its own property, Ms Li says the limits of that power are not sufficiently certain and the consequences are not adequately foreseeable.

58.She gives an example seeking to demonstrate the “arbitrariness” of the Director’s exercise of that proprietary right: whilst the Director can forbid the public from accessing the staff offices in the CGO, the Director can allow access to some parts of the CGO, eg, the conference rooms on the ground floor, upon prior registration.  Further, in relation to the Forecourt, while the Director previously allowed the public to access the property freely for 24 hours a day, the Director can now forbid the public from doing so.

59.Ms Li therefore says the consequences of the exercise of powers by the Director under the common law of property are therefore not sufficiently certain or predictable, and not adequately foreseeable.  It therefore does not fulfil the requirements of legal certainty.

60.Second, Ms Li says the Permission Scheme itself, being only a set of administrative guidelines, also cannot form the legal basis of the Decision.  This is particularly so as the Director was not delegated any power by the LegCo to set up the Permission Scheme.

61.With respect to Ms Li, I am unable to agree.

62.As pointed out by Mr Mok, the courts have repeatedly held that the “law” under the prescribed by law requirement includes statute law and unwritten law (including common law),[20] and the court can look at relevant non‑statutory documents, directives and guidelines that are accessible to the parties or public in assessing whether the criterion of foreseeability is satisfied.[21]

63.The courts develop the common law over time, clarifying it and modifying it to meet new circumstances.  Provided that the court does not extend the boundaries of liability, such development in the case law would not render the principle too imprecise to satisfy the requirement of sufficient legal certainty: Winnio Lo, supra, at paragraphs 75 - 77.

64.In this respect, as part of the common law, the Director’s exercise of the proprietary right to manage the Forecourt has now been further defined by the Court of the Final Appeal in Fong Kwok Shan Christine.

65.In the premises, the restrictions now imposed by the Director under the exercise of its common law proprietary right, coupled with the terms under the Permission Scheme (which can be taken into account for the purpose of determining whether the requirement is satisfied), do satisfy the prescribed by law requirement.  With them in mind, a person seeking to enter and use the Forecourt would reasonably be able to advise himself (and if necessary with the assistance of legal advisers) with a reasonable degree of certainty as to the boundary and risks of any consequences[22] in relation to their exercise of the rights of freedom expression and assembly at the Forecourt.

66.I therefore reject this ground of challenge.

D3.  The Proportionality Ground

67.Under this ground, Ms Li says the restrictions under the Permission Scheme are clearly disproportionate given:

(1) The blanket refusal on all weekdays and Saturdays to allow people to enter the Forecourt to exercise their rights to freedom of expression and assembly, irrespective of (and giving no consideration at all to) the manner of the applicant’s intended public meeting or procession, and the number of the would-be participants.

(2) The need to apply for permission even on Sundays and public holidays again irrespective of (and giving no consideration at all to) the manner of the applicant’s intended public meeting or procession, and the number of the would-be attendees.

(3) These restrictions accommodate no exceptions.

68.Ms Li notes that the legitimate aim said by the Director to be accomplished by imposing these restrictions is to ensure that the normal operation of the CGO (which is the Government headquarter) would not be interrupted.  This is particularly necessary, says the Director, as there were various previous occasions of large scale demonstrations, where demonstrators at the Forecourt had refused to leave which resulted in serious disruption of the civil servants going back to work there.[23] These have been explained in detail in the 1^st Affidavit of Chiu Yin Wa David at paragraphs 28 ‑ 32 and 36 ‑ 43.

69.However, Ms Li says it is difficult to see how the above restrictions can be regarded to be no more than necessary (and thus proportionate) to accomplish this legitimate aim.

70.I agree with Ms Li.

71.As mentioned above, Ribeiro PJ in Fong Kwok Shan Christine at paragraph 44 has emphasized that it is necessary to weigh up the manner, form and impact of each of the demonstrations at the sites concerned to decide whether a challenged restriction satisfies the proportionality test.  This is so since the rights to freedom of expression and assembly extend to the manner in which the protestors wish to express their views and to the location where they wish to express and exchange their views.[24]

72.As a result, although accepting that there are many locations in which, as a matter of common sense, it would be obvious that demonstrations and similar exercise of free expression would be excluded, Ribeiro PJ does not accept that there ought to be some principle excluding in limine engagement of the right in such places.  Hence, a proportionality approach should be adopted which enables “individualised and nuanced assessments and caters for the possibility that in exceptional circumstances such rights might be engaged in even such ostensibly improbable places.”[25]

73.Applying these observations, I agree with Ms Li that the Director cannot demonstrate that the strict and in particular the blanket restrictions mentioned above are no more than necessary to achieve this legitimate aim.  For example, it cannot be reasonably seen why the scheme would not even allow an applicant seeking only to demonstrate say by sitting-in alone at the Forecourt on a weekday or Saturday.  It cannot seriously be suggested that this would affect in a material way the normal operation at the CGO.

74.Further, it must be noted that the Permission Scheme does not allow any discretion to approve an application made for weekdays or Saturdays by way of exception, say by reference to the manner of the protest or demonstration, or the number of intended participants.  In other words, the Permission Scheme would not take into account the manner in which the applicant wishes to exercise the right at the Forecourt and the number of the participants.  This is highlighted by the Decision in this case.  The applicant’s application was refused for the sole reason that it was in relation to a weekday.  There is nothing to show that the Director had sought to consider other factors in refusing the application.

75.The suggestion that there are alternative ways for the would-be protestors to submit their petitions to Government officials or to hold public meetings or proceedings at the mentioned area nearby the CGO[26] does not assist the Director.  The restrictions under challenge are the ones in relation to the exercise of the rights to freedom of speech and assembly at the Forecourt. As mentioned above, the rights to freedom of expression and assembly extends to the location that the would-be protestors seek to exercise them.  Although a protestor does not have an absolute right to insist on the location, any restriction on him to do so at that location must again satisfy the proportionality test, as discussed above.

76.In the premises, applying the above observations and principles in Fong Kwok Shan Christine, the Director has failed to show that the restrictions imposed under the Permission Scheme are no more than necessary to achieve the legitimate aim of ensuring the normal operation of the Government at the CGO.  The Permission Scheme therefore does not satisfy the proportionality test.

77.The Permission Scheme is therefore unconstitutional.

D4.  The Illegality Ground

78.This ground can be quickly disposed of.

79.It is the Director’s evidence that the Permission Scheme is devised and prepared on the starting and fundamental premise that the Forecourt is not a public place and that he has the right as a private property owner to impose any conditions in allowing people to enter it.[27]  As also deposed to by Mr Chiu in his 1^st Affidavit at paragraph 21:

“Despite the aforesaid, the Forecourt is not part of any public street. It is not a public place or a public open space, and the public (in the absence of the requisite licence or permission) do not have any right to access to it. The Government as a landowner has a private right to exclude members of the public from the use of the Forecourt, or impose restrictions or rules to regulate its use. Members of the public passing through the Forecourt for public activities are licensees. The setting up and implementation of the Permission Scheme … involved the exercise of private right of the Government as a landowner for better management of its land.” (emphasis added)

80.Ms Li’s pleaded complaint under this ground is that, properly analysed and considered, it is wrong as a matter of fact for the Director to regard the Forecourt as a private land.  It should instead be regarded as a public place by reference to its functions (being Government offices) and the fact that it had been, and also had been represented to the outside world by the Government that it was to be, open to the public.

81.Ms Li then further contends that in formulating the Permission Scheme on this basis, this mistake of fact has prevented the Director from properly taking into account the rights and freedoms of the applicants who wish to demonstrate or protest or directly express opinions to the public officials concerned during their working hours.[28]

82.The debate of the distinction and difference between public and private places for the purpose of considering the lawfulness of restrictions imposed on the protected freedom of expression rights at a particular location arose from the judgments in Au Kwok Kuen and Leung Kwok Wah.[29]

83.However, as mentioned above at paragraph 47, such an approach is now no longer valid in light of the Court of Final Appeal’s judgment in Fong Kwok Shan Christine.  Hence, this ground based on a complaint of error of fact is also no longer relevant and valid.

84.However, I am of the view that, given Fong Kwok Shan Christine, it can now be said that the Director had committed an error of law, as it is wrong in principle to formulate the Permission Scheme by starting off with the premise that, as a landowner, he could in principle exclude anyone from entering the place to exercise the rights of freedom of expression and assembly.  This is explained by Ribeiro PJ at paragraphs 29 ‑ 30 as follows:

“29. The [rights not engaged] 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, 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.” (emphasis added)

85.On this basis, I therefore conclude that the Director committed an error of law in formulating the Permission Scheme.  The Permission Scheme is therefore tainted with an illegality and therefore unlawful.

E.  CONCLUSION

86.For the above reasons, the applicant succeeds in this application on the Proportionality Ground and the Illegality Ground.  I would therefore declare that the Permission Scheme is unconstitutional for being inconsistent with BL27, BOR16 and BOR17.  I would also quash the Decision made pursuant to the Permission Scheme.

87.In this respect, it must be emphasized that Ms Li has fairly and rightly accepted that the Government (through the Director) is entitled and has power as landowner to manage the use of the Forecourt by imposing restrictions and conditions.  Hence, she accepts that even if the present Permission Scheme is declared unlawful, it is up to the Director to reconsider and devise a new scheme that would satisfy the proportionality test.

88.There are no reasons why costs should not follow the event.  I will therefore make an order nisi that costs of this application be to the applicant, to be taxed if not agreed, with certificate for two counsel.  The applicant’s own costs be taxed in accordance with legal aid regulations.

89.Lastly, I must also thank counsel for their helpful assistance in this matter.

Ms Gladys Li, SC & Mr Jeffrey Tam, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the applicant

Mr Johnny Mok, SC & Mr Johnny Ma, instructed by Department of Justice, for the respondent