Shum Lester and Another v. Chief Executive in Council

HCAL 2930/2019

[2019] HKCFI 2471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2930 OF 2019

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D E C I S I O N

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1.There is before me an urgent application this evening by Mr Lester Shum and Mr Leung Kwok Hung to suspend the operation of the Prohibition on Face Covering Regulation (“Regulation”). The Regulation was made today by the Chief Executive in Council pursuant to the Emergency Regulations Ordinance (Cap 241) (“Ordinance”) and announced as recently as this afternoon following months of protests and civil unrest and against the background of scenes of escalating violence and danger on the streets of Hong Kong. The Regulation is, according to its terms, to come into operation on 5 October 2019, that is, this midnight.

2.Mr Shum has today filed an application for leave to apply for judicial review in connection with the Regulation.  Mr Leung has not filed any such application yet but undertakes to file one by next Tuesday. 

3.Section 2 of the Ordinance provides:

“ (1) On any occasion which the Chief Executive in Council may consider to be an occasion of emergency or public danger he may make any regulations whatsoever which he may consider desirable in the public interest.

…

(3) Any regulations made under the provisions of this section shall continue in force until repealed by order of the Chief Executive in Council.”

4.The Government has invoked the public danger ground rather than an occasion of emergency in section 2(1) to make the Regulation.  The newly made Regulation provides in section 3:

“ (1) A person must not use any facial covering that is likely to prevent identification while the person is at‑

(a) an unlawful assembly (whether or not the assembly is a riot within the meaning of section 19 of Cap 245);

(b) unauthorised assembly;

(c) a public meeting that‑

(i) takes place under section 7(1) of Cap 245; and

(ii) does not fall within paragraph (a) or (b); or

(d) a public procession that‑

(i) takes place under section 13(1) of Cap 245; and

(ii) does not fall within paragraph (a) or (b).

(2)   A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 1 year.”

and in section 4:

“ (1) It is a defence for a person charged with an offence under section 3(2) to establish that at the time of the alleged offence the person had lawful authority or reasonable excuse for using a facial covering.

(2) A person is taken to have established that a person had lawful authority or reasonable excuse for using a facial covering if‑

(a) there is sufficient evidence to raise an issue that the person had such authority or reasonable excuse; and

(b) the contrary is not proved by the prosecution beyond reasonable doubt.

(3) Without limiting the scope of the reasonable excuse referred to in subsection (1), the person had a reasonable excuse if, at the assembly, meeting or procession concerned‑

(a) the person was engaged in a profession or employment and was using the facial covering for the physical safety of the person while performing an act or activity connected with the profession or employment;

(b) the person was using the facial covering for religious reasons; or

(c) the person was using the facial covering for a pre‑existing medical or health reason.”

and in section 5:

“ (1) This section applies in relation to a person in a public place who is using a facial covering that a police officer reasonably believes is likely to prevent identification.

(2) The police officer may‑

(a) stop the person and require the person to remove the facial covering to enable the officer to verify the identity of the person; and

(b) if the person fails to comply with a requirement under paragraph (a)– remove the facial covering.

(3) A person who fails to comply with a requirement under subsection (2)(a) commits an offence and is liable on conviction to a fine at level 3 and to imprisonment for 6 months.”

5.The Government accepts that the Regulation is a piece of subsidiary legislation and, as such, subject to negative vetting in the Legislative Council. 

6.Further to be noted is what is stated in the Legislative Council brief at paragraph 10, namely, that:

“ As the Regulation is meant to deal with the situation of public danger at the time, approval would be sought from the CE‑in‑C to repeal the Regulation when the prevailing public danger drops to a level which no longer justifies the Regulation.”

7.I am concerned tonight only with the interim order sought, namely that “the Regulation be suspended and shall not come into operation pending further order of the Court”. The time for the making of the arguments and for considering them has been very short and my reasons are necessarily brief. 

8.The applicants have not asked for the grant of leave to apply for judicial review at this hearing.  Indeed, Mr Leung has not even filed an application for leave to apply for judicial review.  It is in this connection to be borne in mind that Practice Direction SL3, paragraph 10, states:

“ Save in exceptional circumstances, applications for interim relief may only be granted if leave to apply for judicial review has been obtained…”

9.Assuming there is power to make the orders sought, which will indefinitely suspend the operation of a regulation made pursuant to a statute, it is clear that it is a very strong thing that the applicants are asking this court to do.  The principles that should be applied to an application for interim relief such as the present one are well‑established and not in dispute.  In particular, as summarised by Chow J in Re Leung Chung Hang, Sixtus and Another, [2018] 5 HKC 138 at paragraph 13 (omitting the authorities):

“ (1) Where an interim injunction is sought to restrain a government authority from enforcing what is prima facie the law of the land, the applicant has normally to go further than merely showing a serious issue to be tried. Generally speaking, he will need to establish a ‘strong prima facie case’ that the law is invalid, although exceptionally an applicant may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just and convenient to restrain its enforcement by an interim injunction even though he is unable to discharge such a heavy burden …”

(2) In relation to the question of balance of convenience, the court takes a wider view than just the interests of the immediate parties to the application.  The court must take into account the public interest in the balancing exercise …  The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge, eg very different considerations may apply in a public law challenge against (i) a disciplinary process affecting the employment of an applicant or his employment benefits, and (ii) a decision by a public body to carry out large scale public works based on environmental grounds.”

10.As for the merits of the underlying challenge, Mr Pun SC, who appears for the applicants, argues that the Regulation, insofar as it covers peaceful assemblies, constitutes a disproportionate interference with the right of peaceful assembly and freedom of expression guaranteed by Article 27 of the Basic Law and Articles 16 and 17 of the Hong Kong Bill of Rights.  Secondly, that section 5 of the Regulation constitutes a disproportionate interference with the freedom of the person guaranteed by Article 28 of the Basic Law. Thirdly, that the Ordinance itself, insofar as it purports to empower the Chief Executive in Council to make any regulation restricting the above fundamental rights, is unconstitutional in that it falls foul of the constitutional requirement of “prescribed by law” under Article 39 of the Basic Law.

11.The third point can, in my view, be quickly disposed of, for one needs to take account of the entire body of law, that is to say including the subsidiary legislation that might have an impact on fundamental rights, to see if the “prescribed by law” requirement is satisfied, and in this connection Mr Pun accepts that the Regulation is not uncertain. 

12.As to the other points, Mr Yu SC, who appears for the Chief Executive in Council, as the putative respondent, submits that the situation concerning public safety and public order in Hong Kong is dire.  By reference to the justifications put forward by the Government for the making of the Regulation, he submits that protestors’ violence has been escalating and has reached a very alarming level in the past few days.  Since June this year, over 1,100 people, including more than 300 police officers, have been injured in the numerous incidents which have resulted in a chaotic situation causing fear and perhaps panic on the part of certain members of the public.  In the course of the past week alone, there have been widespread outbreaks of violence simultaneously in different districts of Hong Kong, incidents of arson and the throwing of inflammable liquid bombs, even within MTR stations.  The targets of vandalism and destruction have become not confined to public facilities but have also been directed at selected commercial establishments.  We have also witnessed the use of lethal weapons and corrosive liquids aimed at the police, as well as attempts to wrestle arrestees or firearms from police officers.  It is widely known that the outbreak of violence has already led to the firing of live ammunition which has resulted in one serious injury.

13.Mr Yu submits that it is necessary to impose the relevant control via the Regulation not only on unlawful assemblies but also large‑scale meetings that have received notices of non‑objection under the Public Order Ordinance, ie assemblies with over 50 or more people and processions of 30 or more people, because, according to recent experience, as stated in paragraph 6 of the Legislative Council Brief, a public meeting or public procession which is lawfully taking place can turn into an unauthorised or unlawful assembly quickly with protesters deviating from the original location or route approved by the police and some radical protesters resorting to violence.

14.While Mr Pun points out that the restriction in the Regulation will impact upon certain members of the public who wish to take part in lawful assemblies without disclosing their identity, Mr Yu has also pointed out that the outbreak of violence on a frequent basis and the fact that lawful assemblies have in the present circumstances been prone to turn into events involving violence may also have impacted upon the freedom of ordinary citizens of Hong Kong who wish to participate in lawful assemblies but who fear that such an exercise may be hijacked by those who wear facial coverings and are intent upon the use of violence.

15.While the question of proportionality may merit further exploration, I am not satisfied, having heard the necessarily brief arguments at this stage, that there appears to be such a strong case that the court should by an interim order negate the legal effect of a piece of subsidiary legislation made pursuant to an Ordinance. 

16.In any event, as for the balancing exercise, Mr Pun has not in his submissions challenged that there is an occasion of public danger, indeed, serious public danger of bodily injuries; he has not challenged that Hong Kong is facing a dire situation; nor has he challenged that the purpose of the Regulation is to reduce and bring to an end violence and breaches of the peace.  His submission instead is that the coming into operation of the Regulation will add to and worsen the chaos on the streets today that he says has been triggered by the announcement of its enactment.

17.No one can, of course, guarantee the Regulation will be wholly effective and successful in ending the violence entirely, but it seems to me prima facie rationally connected with its purpose.  Indeed, this kind of legislation is found in a number of overseas jurisdictions including Canada, France, Sweden, Spain, Denmark, Norway, Germany and Austria.

18.Mr Pun says the Regulation will provoke more violence, but I think it would be wrong to assume for present purposes that the law would not be obeyed, and it would be wrong not to allow a law that might objectively be justified otherwise to come into effect because there might be people who would resort to violence or other unlawful means in protest against it. 

19.It is worth bearing in mind the words of Lord Goff in the case of R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) [1991] 1 AC 603 at 673C, adopted by Au J in the case of Cheung Tak Wing v Communications Authority and Another [2015] 5 HKC 70 at paragraph 30:

“ In this context, particular stress should be placed upon the importance of upholding the law of the land, in the public interest, bearing in mind the need for stability in our society, and the duty placed upon certain authorities to enforce the law in the public interest. This is of itself an important factor to be weighed in the balance when assessing the balance of convenience.”

20.For all these reasons, I decline to grant the interim relief sought.

Mr Hectar Pun SC, Mr Anson Wong Yu Yat and Mr Jasper Wong, instructed by JCC Cheung & Co, for the Applicant and Intended Applicant

Mr Benjamin Yu SC and Mr Mike Lui, instructed by the Department of Justice, for the Putative Respondent