Mtr Corporation Limited v. Tsang Kin Shing

FAMC No. 40 of 2018

[2018] HKCFA 56

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2018 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 170 OF 2017)

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BETWEEN

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.After hearing counsel for the applicant, we dismissed the application for leave to appeal to the Court of Final Appeal indicating that we would give our reasons in due course, which we now do.

2.The applicant was convicted by a magistrate, on 7 March 2017,[1] of the offence of bill posting contrary to section 32(a) of the Mass Transit Railway By-laws[2] and fined HK$1,500.  The conviction was based on the fact that, on 8 April 2016, the applicant had posted “more than 20 stickers” on the wall of the concourse at the Mong Kok Mass Transit Railway (“MTR”) Station.  He did not have the authority of the MTR Corporation Limited (“the Corporation”) to do so.  His conviction by the magistrate was upheld on appeal to the Court of First Instance.[3]

3.Section 32 of the MTR By-laws provides that:

“No person shall, unless authorized in writing by the Corporation –

(a) post, stick, paint or write or cause to be posted, stuck, painted or written any placard, bill, advertisement or any other matter; or

(b) distribute any book, leaflet or other printed matter or any sample or other article,

on any part of the railway premises.”

4.A person who contravenes section 32 of the MTR By-laws commits an offence and is liable to a maximum penalty of a HK$5,000 fine and 3 months’ imprisonment: see section 43 and Schedule 2 of the MTR By-laws.

5.The MTR By-laws are made pursuant to section 34 of the Mass Transit Railway Ordinance,[4] which provides that the Corporation may make bylaws for “any or all of the following purposes” including:

“(b) controlling and regulating –

(i) the conduct of members of the public using the railway or on railway premises;

(ii) …;

(iii) advertising on railway premises; and

(iv) …;

(c)   protecting the property of the Corporation on railway premises;”

6.The applicant contended in the courts below that section 32(a) of the MTR By-laws was unconstitutional.  That defence was rejected by the magistrate and Barnes J. Following the dismissal of his appeal, the applicant applied to the Judge for a certificate that a point of law of great and general importance was involved in the decision and, on 7 June 2018, she duly certified the following question of law, namely:

“Is s.32(a) MTR By-law constitutional? That is to say, when undergoing the balancing exercise, how does the court assess whether the protection to the private properties of a public authority (or any person acting on its behalf) sufficiently justifies restrictions on one mode of the freedom of expression?”

7.In the Skeleton Arguments for the Applicant (at paragraph [4]), the Appeal Committee was invited to grant leave to appeal to the Court of Final Appeal on the following “wider point of law of great and general importance”, namely:

“Whether by-law 32(a) of the Mass Transit Railway By-laws, Cap 556B is constitutional?”

8.It was accepted below (and before us), on behalf of the respondent, that section 32(a) of the MTR By-laws does constitute a restriction on the right to freedom of expression contained in Article 27 of the Basic Law of the Hong Kong Special Administrative Region and Article 16 of the Hong Kong Bill of Rights.  That constitutional right is not absolute and may be subject to restrictions as provided by law and necessary for, amongst other things, respect of the rights of others.  So the question is whether the restriction satisfies the proportionality test as a lawful restriction of the right.  The bills that the applicant posted were protesting against fare increases for travel on the MTR system.  The fact that the applicant’s protest took place on the private premises of the Corporation[5] does not affect the fact that the applicant’s constitutional right of free speech was engaged: HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 at [28] to [31].

9.However, with respect to the arguments of counsel for the applicant,[6] we are not satisfied that it is reasonably arguable that the restriction in section 32(a) of the MTR By-laws on the right to freedom of expression fails to satisfy the proportionality test as contended.  The arguments advanced in the Skeleton Arguments for the Applicant repeat in substance the submissions advanced to the Judge below.  Like her, we are satisfied that section 32(a) of the MTR By-laws is proportionate.  The restriction is aimed only at regulating the posting, sticking, painting and writing of matter on any part of the railway premises.  It is directed to a narrow limitation on one particular mode of expression and its aim is to control advertising on railway premises and to protect the Corporation’s property.  Nothing in section 32(a) restricted the applicant from otherwise mounting a verbal protest against the proposed fare increase or displaying wording (e.g. a placard) to that effect and it was therefore not a blanket prohibition as contended by Mr Kwok.  We are satisfied that the Judge’s conclusion that section 32(a) of the MTR By-laws is proportionate, balancing the applicant’s right to freedom of expression, on the one hand, and the protection of the MTR’s property rights and its obligation to ensure that the rights and freedoms of users of the MTR are not affected, on the other, was correct and that the contrary is not reasonably arguable.

10.Accordingly, we refused leave to appeal.

Mr Douglas Kwok and Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co., assigned by the Director of Legal Aid, for the Applicant

Mr Johnny Mok SC and Mr Tom Ng, instructed by Munros, for the Respondent