Mtr Corporation Ltd v. Kwok Wing Kin
Read the full judgment text of HCMA 410/2018 on BabelCite. This High Court CFI judgment was delivered on 23 October 2019.
1. This is an appeal by way of case stated by the MTR Corporation Limited (“MTR”), acting as prosecution in these proceedings, against the decision of the Magistrate [1] to acquit the respondent.
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HCMA 410/2018 [2019] HKCFI 2426 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 410 OF 2018 (ON APPEAL FROM FLS 12224 OF 2016) _______________
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_______________ J U D G M E N T _______________ 1.This is an appeal by way of case stated by the MTR Corporation Limited (“MTR”), acting as prosecution in these proceedings, against the decision of the Magistrate[1] to acquit the respondent. 2.The respondent was charged under sections 21(1) and 43 of the Mass Transit Railway By-laws[2] (“MTR Bylaws”) in that he, while on the railway premises at the MTR Kowloon Tong Station, failed to comply with a reasonable direction and request of an MTR official, namely, to stop using a loudspeaker for broadcasting and to leave the station. 3.The trial was conducted in Chinese. It is the consensus of parties that this appeal be heard in English and the judgment be prepared in English. FACTS OF THE CASE 4.The Magistrate made the following finding of facts[3]:
5.The Magistrate found that the respondent did not comply with the Directions[5] but acquitted him for the following two reasons:
THE QUESTIONS 6.The questions of law for the opinion of the court are:[8]
DISCUSSION AND CONSIDERATION 7.The present prosecution against the respondent was brought pursuant to sections 21(1) and 43 of the MTR Bylaws[9]:
8.The first three questions[10] were asked for the original purpose of seeking the court’s ruling on the constitutionality of the provision. Parties now agree that constitutionality of the provision is no longer in issue. The appellant also accepts that for a prosecution under sections 21(1) and 43 of the MTR Bylaws, it is for the prosecution to prove beyond reasonable doubt that the Directions in question was reasonable, although how reasonableness is to be assessed is still a point to be considered. In the circumstances, as parties agreed, practically the only question which the court needs to answer is Question 6 only. In answering Question 6, matters set out in Questions 4 and 5 will be addressed. The Protected Rights 9.The rights relevant in the present case is broadly speaking that of freedom of speech or expression and of assembly (“the Protected Rights”). 10.Article 27 of the BL provides:
11.Articles 16 and 17 of the BOR provide:
12.It is well established that the BOR is given constitutional status by Article 39 of the BL which provides:
Only Question 6 needs to be answered 13.Mr Johnny Mok, SC, who appeared together with Mr Tom Ng for the appellant, clearly stated that for the purpose of this appeal, the MTR is prepared to proceed on the basis that Article 27 of the BL[11] is engaged. It is also accepted that Article 27 essentially covers the rights under Articles 16 and 17 of the BOR.[12] It is therefore not necessary to answer Question 1. 14.Question 2 was asked as the BOR binds only the Government and all public authorities, and any person acting on their behalf.[13] In the light of the stance of the appellant in relation to Question 1, it is not really necessary to answer Question 2 for the purpose of this appeal. 15.Despite Question 3 is set out in such term, the real substance of the question is whether by virtue of the relevant provision the restriction of the Protected Rights is constitutional. This is no longer in issue. 16.As said, the analysis for Question 6 will necessarily cover matters raised in Questions 4 and 5. Proportionality is the Main Issue 17.What the respondent was alleged to have contravened was failure to comply with reasonable directions of an official (ie, “the Directions”).[14] 18.The Directions in the present case were to stop using a loudspeaker for broadcasting and to leave the station. 19.As the respondent and his group were in the course of a demonstration, the Directions in the present case amount to restriction of the Protected Rights. As such, the Directions to be reasonable must be for a legitimate aim, rationally connected to the legitimate aim, and no more than reasonably necessary to achieve the aim. 20.As the Court of Final Appeal said in Hysan Development Co Ltd v Town Planning Board[15], a four-step analysis is involved[16]:
21.For a restriction to be for a legitimate aim, it must be related to “national security or public order (ordre public), or the protection of public health or morals.”[17] 22.The aim in the present context can be identified in the following provisions. 23.The MTR Bylaws were enacted pursuant to section 34 of the Mass Transit Railway Ordinance (“the Ordinance”)[18] and section 34(1)(b)(i) provides:
24.Section 9(1) of the Ordinance provides that:
25.Mr Mok submitted that creating a secure and convenient environment to enable passengers to use the Station, in particular the paid area, for its primary purpose of commuting without disruption or disturbance or the risk of any disorder is conducive to maintaining a proper and efficient service. To this I agree. It follows that, whether a direction is reasonable is to be assessed in this light. 26.I have no doubt, and indeed there is no real dispute, that there is a legitimate aim in the restriction. 27.In her submission, Ms Wong queried whether there was any rational connection with the legitimate aim, in particular in the light of the finding of the Magistrate that there was much space for the passengers to pass at the time of the demonstration, indicating there was no interference with the proper and efficient services at the station. She also argued that the adoption of a zero tolerance policy further showed the lack of rational connection. 28.I do not agree that the Directions were not rationally connected to the legitimate aim as stated earlier in paragraphs 22 - 25 above. 29.The most important question in the present case is whether the restriction is no more than really necessary to achieve the aim and whether a reasonable balance has been struck between the Corporation discharging its statutory duty and the relating benefit to the society on the one hand and the restriction of the Protected Rights on the other. 30.As Fok PJ said in MTR Corporation Ltd v Tsang Kin Shing[19], there is a need to balance the “right to freedom of expression, on the one hand, and the protection of the MTR’s property rights and its obligation to ensure the rights and freedoms of the users of the MTR are not affected.”[20] 31.In the course of submission, several points were specifically raised and it may be convenient to deal with these points first. Choice of Venue 32.Ms Linda Wong, for the respondent[21], stressed that a person exercising the right to free expression has choices, including the choice of venue. In Mayor of London v Hall[22], Lord Neuberger of Abbotsbury MR noted the importance of recognising that the manner and location of the protest was part and parcel of the exercise of free expression. His Lordship said:
33.In HKSAR v Fong Kwok Shan Christine[24], Ribeiro PJ observed:
34.Ribeiro PJ further said that “the dimensions of any particular exercise of such rights and the exigencies of the intended venue” are to be taken into account in the proportionality analysis after having held that “a rule presumptively excluding free expression at certain types of venues is too blunt an instrument”.[26] 35.The choice of venue in exercising the right on the one hand, and the exigencies of the intended venue on the other are relevant matters to be taken into account in the proportionality analysis. Is the Subject Concourse a Public Place? 36.In the light of the decision in Fong Kwok Shan[27], Protected Rights are engaged regardless of whether the location is a public place or not. The nature of the location however enters the equation in the proportionality assessment exercise. 37.Mr Mok made the submission that the Subject Concourse should not be regarded as a public place for the present purpose, on the following grounds:
38.On the other hand, Ms Wong submitted that the Subject Concourse is a public place, arguing that it is a publicly-owned venue performing a public function and no private property right was involved in the present case. 39.Indeed, in MTR Corporation Ltd v Chow Nok Hang[35], W Chan J described the station as a privately-owned venue performing a public function.[36] His Lordship further observed:
40.As regards the case of Tsang Kin Shing[39] cited by the appellant, it has to be noted that when the Court of Final Appeal was dealing with the case, the focus was on whether the by-law in question is constitutional. That said, protection of the MTR’s property rights was mentioned.[40] 41.Despite Mr Mok had made the submission just mentioned[41], at the appeal hearing he did not argue this point strenuously and his emphasis was on the fact that what happened took place in the paid area and asked the court to take this into account in the proportionality analysis since the location has its significance, as stated in the next section in this judgment. 42.In the course of submission, Mr Mok informed the court that the Subject Concourse was in fact not owned by the MTR. In this regard, I am of the view that no matter whether MTR was the owner, it is the nature of the place which carries more weight in the consideration. Section 9 of the Ordinance[42] which provides for the duty of the MTR applies to all MTR stations, regardless of whether they are owned by the MTR or not. 43.The Subject Concourse, even if privately owned, is not like the home of a citizen and other premises which the BL provides for constitutional protection.[43] There is a degree of public element, and the degree is not low. Primary Purpose of Permitting Entry to the Paid Area 44.As said, Mr Mok stressed that the incident took place inside the paid area. It is his submission that the primary purpose of allowing entry to the paid area is to enable passengers to gain access to the MTR train system and this must be taken into account. The following passage of W Chan J in MTR Corp Ltd v Chow Nok Hang[44]was cited:
45.I agree what W Chan J stated is the primary purpose of allowing a person other than the staff to enter the paid area. Although nowadays there may be shops or service facilities operating within the paid area, and very rarely one may enter the paid area solely for the purpose of patronising one of the shops or service facilities as perhaps it is the only one conveniently available, the primary purpose must be as just said. 46.As stated in paragraphs 22 - 25 above, the Directions have to be one which is reasonable for the purpose of controlling and regulating the conduct of members of the public using the railway or on railway premises so that a proper and efficient service can be maintained at all times. The location where the rights was exercised is a relevant consideration. On the one hand, one has the choice of venue in expressing his view, though this right is not absolute. On the other hand, if the location has its significance in relation to the need for restriction of the right it must also be taken into account. 47.In this regard, it has to be noted that one of the Directions was to leave the station, not only to leave the paid area. Whether it necessarily takes the wind out of the sail of the submission of Mr Mok will be discussed later. High Degree of Tolerance 48.Ms Wong submitted that as the Protected Rights are so important, public authorities are expected to show a high degree of tolerance, even if exercising of the rights is disruptive to the normal functioning of the place. She cited two cases to support her argument. 49.In Ashughyan v Armenia[46], the European Court of Human Rights stated that:
50.In Yeung May Wan v HKSAR[48], Bokhary PJ observed:
51.When the Court of Appeal dealt with the case[50], Stock JA[51] observed:
52.Ms Wong also stressed that the public authorities have a positive duty to take measures to enhance the rights. 53.In this regard, whilst in Leung Kwok Hung v HKSAR[53], the Court of Final Appeal recognized that public authorities have a positive duty to take reasonable and appropriate measure to enable lawful assemblies to take place peacefully, the Court also observed:
Matters to be Taken into Account in the Proportionality Analysis 54.Section 21(1) provides that the direction has to be a reasonable one. In this connection, Mr Mok invited the court to adopt the decision of W Chan J in MTR Corporation v Chow Nok Hang[55] that the direction should be “fair and reasonable having regard to maintaining a proper and efficient service at all times”.[56] His Lordship made such ruling having considered the English case British Airports Authority v Ashton[57] which concerned the provision “no person shall remain on the aerodome, or any part thereof, after having been requested by a constable to leave”. In that case, there was a concession from the British Airport Authority (“BAA”) that there must be an implied limitation on the power of request in that a request to leave made capriciously would not support a prosecution for failure to leave. The court held that the request to leave must be a fair and reasonable one having regard to securing the efficient, economic and safe operation of the services and facilities provided by the BAA. 55.Noting that there is a difference in the statutory provision of the two jurisdictions in that the local provision stipulates that the direction is to be reasonable and the English legislation is silent in this respect, I will consider the case on the basis that the direction has to be a fair and reasonable one, as invited by Mr Mok. It makes no difference in my decision and I do not see the absolute need to make a ruling on this point. It is, in any case, difficult to envisage a situation where an unfair direction can be found to be reasonable. 56.What the court has to do is to decide whether the Directions were fair and reasonable in the light of the whole of the circumstances which is within common knowledge and as shown by evidence, and having regard to the relevant consideration principles as stated in paragraph 46 above. It is facts sensitive and has to be necessary and proportional in the circumstances of the case. It involves an exercise balancing the rights of all parties concerned as well as the statutory duty of the MTR.[58] 57.Lord Neuberger MR stated in The Mayor Commonalty and Citizens of the City of London v Samede[59]:
58.It is impossible to draw up an exhaustive list of the factors but what may frequently be relevant include: the location, the space, the time, the duration, by what means the Protected Rights are exercised, how many people are involved and affected, the accumulative and incremental effect of the conduct in exercise of the Protected Rights, and whether alternative means exist. 59.It is for the prosecution to adduce evidence to prove beyond reasonable doubt all elements of the offence, and in the context of the present case to prove particularly that the Directions were reasonable. 60.An objective test should be applied in deciding whether the Directions were reasonable in the circumstances. What the witness perceived and what factors he had taken into account may be relevant in the consideration but what must be borne in mind is that the test is not a subjective one. What the court has to do is to analyse the circumstances which are within common knowledge and as revealed by evidence, and decide whether by objective standard the Directions were reasonable. 61.What must also be borne in mind is that often there can be a spectrum of reasonable directions and so long as a direction falls within the reasonable range it should be found reasonable. The Proportionality Analysis in the Present Case 62.At trial, the only prosecution witness was Mr Wong[60]. His evidence on how the activities had affected the circumstances has been summarised by the Magistrate as follows[61]:
63.The Magistrate did not fully accept the evidence of Mr Wong and he made the following finding of facts:[62]
64.The Magistrate further found that there was, at the material time, no necessity nor urgency to stop using the loud hailer and to leave the station forthwith.[63] 65.I see no reason to disturb the findings of facts as stated in paragraph 63 above. Indeed, neither parties sought to challenge the findings. 66.On those findings, the Magistrate gave the following reasons for holding that the Directions were on the evidence not reasonable[64]:
67.The submission of Mr Mok was that the Magistrate erred and should have found the Directions reasonable, in view of the followings:
68.On the other hand, Ms Wong submitted that the verdict of the Magistrate should not be disturbed. She submitted that the reasons the Magistrate provided for his decision[65] were sound and stressed that in the present case there was no evidence to show any disturbance, or risk of disturbance or even inconvenience to the passengers. 69.Ms Wong stressed that fundamental rights should be given a generous interpretation whereas restriction on such rights must be narrowly interpreted. 70.She cited the European case Navalnyy v Russia[66] in which the court said:
71.She also cited Jews for Jesus, Inc v Massachusetts Bay Transportation Authority[67] and In re Hoffman[68] which are cases concerning regulations in railway stations. 72.I note that in these two cases, whilst the rights of citizens were recognised and respected, the court stressed that an important consideration was whether there was interference of the use of the railway and whether function of the station as a transportation terminal was infringed. These are relevant consideration in the present case. 73.It was also the submission of Ms Wong that:
74.Ms Wong also echoed the view of the Magistrate that the “zero tolerance policy” indicated no proportionality analysis had taken place by assessing the factual circumstances on site. 75.Having considered what the Magistrate said in relation to the evidence of Mr Wong[69], I agree that I have to consider the present case on the basis that there was a “zero tolerance policy” and that the witness made the decision having this policy in mind. 76.This is an appeal by way of case stated. It is not an appeal by way of rehearing. The duty of this court is to examine whether or not there was an error of law or an excess of jurisdiction.[70] 77.Chan PJ said in Li Man Wai v SJ[71]:
78.In consideration, the court is confined to the evidence adduced in the lower court but at the same time is entitled to take into account circumstances which are within common knowledge. 79.Mr Mok highlighted the significance of the location being inside the paid area, stressing the primary purpose of permitting entry into it.[73] 80.As said, one of the Directions was to leave the station, not only to leave the paid area. I am aware of the implication of such a direction. However, the incident did take place in the paid area. It prompted the action of Mr Wong and understandably he had to make a decision on the spot. 81.The paid area, as stressed by the appellant, has its significance. It may be that had the activity been conducted outside the paid area, the situation might have been less acute. However, the fact is that the incident took place in a paid area and the station was Kowloon Tong Station. It is commonly known that it is one of the busiest stations and not particularly spacious. The incident took place at noon time which nobody will think is a quiet time of the day. 82.Despite I appreciate the significance of the paid area, it is my view that the need to safeguard the integrity of the station as a whole is of much importance. We must not lose sight of the fact that the train service is a major means of local transportation and the special features which go with it, as I will outline later. 83.Evidence did not show that actual disturbance had taken place. However, it cannot be said that the risk did not exist. I also cannot accept that the evidence did not show inconvenience to the passengers had been caused. The incident took place inside the paid area and indeed the location was adjacent to two main corridors for passengers moving to and fro some exits and the platform for the train to the Kwun Tong Line. Even though it was a Sunday and passengers would not be as many as on a working day, the number cannot be unduly underestimated. The fast pace of MTR passengers, at least of many of them, is well known. The distraction caused in this case, both by the physical conduct of the respondent and his group and announcement through the loud hailer, can reasonably be viewed as a potential hazard. Whilst judging from the subject matter of the protest or demonstration, the risk of attracting opposition conduct might not be as high as when a controversial topic is involved, the risk is not something which should lightly be ignored. 84.Notwithstanding that the Magistrate did not fully accept the evidence of Mr Wong[74], apart from rejecting his evidence about switching off the escalator, the Magistrate did not expressly say he refused to accept entirely the other aspect of Mr Wong as outlined in paragraph 62 above, his remark was that he found that Mr Wong was on the whole an honest witness but there might have been a degree of exaggeration in some aspect of his evidence particularly in relation to the passenger flow, and perhaps also in relation to the loud hailer.[75] In consideration of whether the Directions were reasonable, the circumstances which Mr Wong described and accepted by the court as true have to be taken into account although the weight to be attached is a matter for the court. 85.Ms Wong criticised that the Directions were made just a few minutes after the activities had started and the Directions in particular that of leaving the MTR station forthwith amounts to completely stopping the demonstration. At the appeal hearing, the option of discussion between the MTR staff and the respondent for alternative arrangement was brought up. Whether such option would have been viable must be considered in context. I doubt the wisdom of doing so. In the circumstances of the present case, taking into account the location, the scale of the activity and the number of persons involved, in my judgment taking the steps as Mr Wong did cannot be said to be unreasonable. 86.The MTR, and Mr Wong in the present case, was entitled to exercise anticipation. It is certainly reasonable to make a direction with the view of preventing an anticipated undesirable situation. It may be too late to take action when something undesirable has happened. 87.Much had been said against the “zero tolerance” policy. Mr Wong said he had taken this into account in his decision. As said earlier in paragraph 56, the objective test is applicable. What the court has to decide is whether it was reasonable to make the Directions in the circumstances of the present case. Whilst I am not in a position to take a firm view on the policy as it was not the focus of the case and therefore submission on the topic was limited, I can readily see some justifications in applying the policy in the station, particularly in the paid area, in the present case. The first is what Mr Mok described as the accumulative impact. If the station is opened up for demonstration by one group, it is hard to exclude other to do the same, each of them may cause a degree of obstruction or disruption, the accumulative impact can be substantial. Besides, the “incremental effect”, or at least the risk of such effect, as recognised by the Court of Final Appeal in Fong Kwok Shan[76], is a realistic concern in many situations. A demonstration may be met with confrontation posing a risk of conflict and public disorder. 88.Train service is special in many ways. Each train is capable of carrying a lot of passengers, much more than a double decker bus. At each platform, whenever a train arrives, there are people coming out from the carriage and people eager to enter at the same time. There may be people rushing towards the train. The name of the corporation is not just a choice of nomenclature. The system is set up for mass transit. Not only that a mass of passengers is carried on each train, the system enables passengers to change lines. It happens inside the paid area and there is a tendency for people to do it in a hurried manner. Unlike a bus, if there is disruption to one train, the entire system may be affected and can be brought to a halt as usually there is no alternative route available. This lack of flexibility is an important matter to be taken into account, in particular as the railway is definitely the means of transportation which many citizens in Hong Kong mostly relied upon. 89.Whether a direction is reasonable has to be decided objectively, taking into account the special nature of the MTR service. As the objective test is applicable, what the witness said he had taken into account in his decision, including the “zero tolerance policy”, are only factors to be taken into account. Whether a direction he made was reasonable is to be assessed objectively taking into account the whole of the circumstances as shown by evidence and any relevant circumstances which are commonly known. 90.It has to be borne in mind that the statutory duty of the MTR is to maintain a proper and efficient service at all times.[77] Disruption of such level of service at any time may amount to a failure of duty. 91.It should also be noted that there is a mechanism whereby financial penalty may be imposed on the MTR for failure to comply with any provision of the Ordinance (including the statutory duty as mentioned in paragraph 24 above) or the operating agreement.[78] The penalty can be substantial. It indicates an intention to impose an onerous duty on the MTR to maintain a proper and efficient service. Maintaining such a service is in the interests not only to the company and its shareholders, but also to the whole community as a whole. 92.This onerous duty, and the public interest in having a proper and efficient train service at all times, are important factors to take into account in the proportionality analysis. On the other side of the scale is of course the Protected Rights. 93.Having considered the whole of the relevant circumstances, bearing in mind the implication of the Directions was that the demonstration had to stop, in my judgment the finding of the Magistrate that there was no necessity nor urgency in giving the Directions illustrates a failure to take into account all the relevant circumstances. 94.Ms Wong said there was no evidence that any MTR broadcasting had been drown by the sound through the loud hailer used by the respondent and his group. Whilst it may be true, it is not realistic to think that the proper functioning of the MTR broadcasting would not have been affected. At the least, attention of some passengers might be distracted. Also, it can easily be anticipated that some of the passengers would be attracted, thus slowing the path of other passengers or they might even have to alter their path. It is obviously desirable that public broadcasting inside the station is reserved for formal public announcement of the MTR management. 95.I have considered whether there existed alternatives available to the respondent and his group to exercise the Protected Rights. In my judgment, there are alternatives including exercising the rights in the street outside the station or by social media and other forms of public communication. The respondent was also free to canvass support from citizens and to lobby support of legislative members. He was only not permitted to perform the demonstration inside the MTR station, and in this particular case the busy Kowloon Tong Station. 96.Having regard to the size of the activity of the respondent and his group, the exact location of the activity, what had been done including displaying of banners, distribution of leaflets and stickers, setting up of a table, using loud hailer to make announcement and asking people to sign, as well as to the nature and primary purpose of the paid area and the whole station, together with all the relevant consideration, there is no doubt that the Directions were reasonable in the circumstances of the case. 97.The Directions were conducive to controlling and regulating the conduct of members of the public using the railway or in railway premises and achieving the ultimate aim of maintaining a proper and efficient train service at all times. In my judgment, the Directions were no more than necessary in the circumstances to achieve the legitimate aim and a reasonable balance had been struck between the need for the Corporation to discharge its statutory duty (and the related benefit to the society) on the one hand and the restriction on the Protected Rights on the other. 98.It was the submission of Ms Wong that a reasonable balance had not been struck by issuing the Directions since the benefit was small and negligible. I do not agree. 99.Having regard to all the relevant considerations, and disregarding the irrelevant considerations, applying the test in Li Man Wai v SJ[79], I find that the decision of the Magistrate amount to an error of law. He had wrongly acquitted the respondent. I therefore allow the appeal. 100.I borne in mind the criticism of Ms Wong as stated in paragraph 73 above. Whilst I appreciate that the Magistrate might not have been given assistance in full force, I decide the case taking into consideration the whole circumstances which is within common knowledge and as proved by evidence, which the Magistrate should also have done. 101.Pursuant to section 119(1)(d) of the Magistrates Ordinance[80], I reverse the decision of the Magistrate and order that a verdict of guilty be entered in place of the acquittal of the respondent. Further, I remit this case to the Magistrates Court for such sentence as appears appropriate to be imposed on the respondent for the offence. 102.There was indication for application for costs. In this connection, I make the following directions:
Mr Johnny Mok SC and Mr Tom Ng, instructed by Munros Solicitors, for the appellant Ms Linda Wong and Ms Chow Hang Tung, instructed by Bond Ng Solicitors, for the respondent [1] Mr LT Pang. [2] Cap 556B, Laws of Hong Kong. [3] Adopting largely the submission of the appellant. The Case Stated was prepared in Chinese, the facts were set out in paragraph 4. [4] These are admitted facts. [5] See paragraph 4 of the Case Stated. [6] As provided in section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, Laws of Hong Kong. [7] See paragraph 11 - 14 of the Case Stated. [8] The questions were originally set out in Chinese, this is the agreed English version. [9] See footnote 2. [10] See paragraph 6 above, and also paragraphs 13 - 15 below. [11] See paragraph 10 above. [12] See paragraph 11 above. [13] As provided in section 7 of the Hong Kong Bill of Rights Ordinance. [14] See paragraph 7 above for the relevant provision. [15] (2016) 19 HKCFAR 372. [16] See paragraphs 133 - 135 of the judgment. [17] Articles 16 and 17 of the BOR, see paragraph 11 above. [18] Cap 556, Laws of Hong Kong. [19] FAMC 40/2018. [20] Paragraph 9 of the judgment. [21] Ms Linda Wong appeared for the respondent together with Ms Chow Hang Tung. [22] [2011] 1 WLR 504. [23] Paragraph 37 of the judgment. [24] (2017) 20 HKCFAR 425. [25] Paragraph 44 of the judgment. See also paragraph 45 of the judgment. [26] See paragraph 45 of the judgment. [27] See footnote 24. [28] Paragraph (a) of section 2. [29] See footnote 2. [30] [2019] 3 HKLRD 270, paragraphs 48 - 51. [31] Paragraph 51 of the judgment. [32] See footnote 19. [33] [2018] 2 HKRD 1378. [34] Paragraph 36 of the judgment. [35] See footnote 33. [36] See paragraph 16 in MTR Corp Ltd v Chow Nok Hang [2018] 2 HKLRD 1378. [37] The Government owns shares in the Corporation, as stated in paragraph 16 in the judgment. [38] Paragraph 17 of the judgment. [39] See paragraph 37(3) above, and footnote 19. [40] See paragraph 9 of the judgment. [41] See paragraph 37 above. [42] See paragraph 24 above and footnote 18. [43] For example, Article 29 of the BL. [44] See footnote 33. [45] Paragraph 29 in the judgment. [46] ECtHR No 33268/03, 17 July 2008. [47] At paragraph 90 of the judgment. [48] (2005) 8 HKCFAR 137. [49] At paragraph 144 of the judgment. [50] [2004] 3 HKLRD 797. [51] As Stock VP then was. [52] At paragraph 88 of the judgment. [53] (2005) 8 HKCFAR 229. [54] At paragraph 22 of the judgment. [55] See footnote 33. [56] Paragraph 22 of the judgment. [57] [1983] 1 WLR 1079. [58] As stated in paragraph 20 and 30 in this judgment. [59] [2012] EWCA Civ 160. [60] See paragraph 4 above. [61] Paragraph 5 of the case stated. [62] Paragraph 5(c) of the Case Stated. [63] Paragraph 21 of the Case Stated. [64] Paragraph 22 of the Case Stated. [65] See paragraph 66 above. [66] ECtHR 29580/12, 15 November 2018. [67] 984 F.2d 1319 (1st Cir 1993). [68] (1967) 434 p.2d 353. [69] Paragraph 5(c)(vi) of the Case Stated. [70] See Li Man Wai v SJ (2003) 6 HKCFAR 466, at paragraph 18 of the judgment. [71] See footnote 70. [72] Paragraph 19 of the judgment. [73] See paragraphs 44 - 45 above. [74] See paragraph 63 above. [75] Paragraph 5(c) of the Case Stated. [76] See footnote 24, paragraph 112 - 114 of the judgment. [77] Section 9(1) of the Ordinance, see footnote 16 and paragraph 24 above. [78] Section 14 of the Ordinance, see footnote 16. [79] See footnote 70 and paragraph 77 above. [80] Cap 227, Laws of Hong Kong. | ||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCMA 410/2018