Chee Fei Ming v. Director of Food and Environmental Hygiene and Another

CACV 489/2018
and CACV 490/2018

[2019] HKCA 1425

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 489 OF 2018

(ON APPEAL FROM HCAL 73/2013)

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BETWEEN

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AND

CIVIL APPEAL NO 490 OF 2018

(ON APPEAL FROM HCAL 110/2013)

________________________

BETWEEN

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(Heard together)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This case concerns the control of display of bills or posters on Government land under the Public Health and Municipal Services Ordinance Cap 132 (“the Ordinance”) and its impact on the display of banners in static demonstrations. The applicants contend that the statutory control infringes their freedom of demonstration and apply for judicial review to challenge decisions to remove their banners which were displayed without the permission of the Director of Food and Environmental Hygiene (“the Director”) in 2013. The procedural history of the proceedings was set out at [33] to [39] of the judgment of G Lam J of 31 August 2018.

2.These appeals are the second occasion these matters have come before this Court.  Previously, in CACV 219 and 220/2014, this Court (Cheung CJHC, as he then was, Lam VP and Barma JA) upheld the decision of Poon J (as he then was) refusing leave to apply for judicial review based on the grounds advanced in the Court of First Instance.  However, this Court allowed the appeal on the basis of new arguments and granted leave to apply for judicial review based on two grounds:

(a) Section 104A of the Ordinance does not satisfy the “prescribed by law” requirement[1]; and

(b) Section 104A of the Ordinance does not satisfy the proportionality test by reason of the criterion based on content-screening[2]. 

3.The substantive judicial review was heard by G Lam J.  By a judgment of 31 August 2018, the judge held that Section 104A did not satisfy the “prescribed by law” requirement[3] and granted an order for Certiorari quashing the decisions of the Director in 2013 removing the banners and placards from the Falun Gong (“FLG”) demonstration locations. 

4.The judge did not rule on the proportionality issue because he was of the view that the evidence did not contain a sufficient and proper basis for a proportionality analysis[4] and no application had been made by the FLG demonstrators for permission under Section 104A. 

5.The facts and circumstances leading to these judicial review applications have been set out at some length by Poon J in the judgment of 15 October 2014, and were adopted by G Lam J at [3] of his judgment of 31 August 2018.  We shall also gratefully adopt the same for the purpose of this judgment:

“ 3. The applicants in these judicial review proceedings are Falun Gong (“FLG”) practitioners. They and other fellow FLG practitioners have for years been staging what they describe as “static demonstrations” at various locations in public places that fall within the Director’s purview under section 104A(1)(b). According to surveillance conducted by the Food and Environmental and Hygiene Department (“FEHD”) in March 2013, there are 26 of such locations all over Hong Kong where the FLG practitioners hold the static demonstrations (“the 26 Locations”).

4. Publicity materials falling within section 104A(1) of the Ordinance are always displayed on the 26 Locations for the purpose of the FLG static demonstrations. But no permission has ever been obtained from either the Director under section 104A(1)(b) or LD under the Management Scheme for displaying the publicity materials at any of the 26 Locations. Indeed, no application for permission to do so has ever been made to either the Director or LD. It is because the FLG demonstrators adamantly regard such application as an unreasonable and unnecessary restriction of the lawful exercise of their freedoms of demonstration, assembly and speech as guaranteed by the Basic Law and the Hong Kong Bill of Rights.

…

9. FLG is a Buddhist movement first started in the Mainland in 1992. It has since attracted many followers both in the Mainland and overseas. In about 1999, FLG was branded as a cult by the Mainland authority. Since then, FLG practitioners have staged demonstrations in different places overseas to protest against what they perceive as persecutions of fellow FLG practitioners in the Mainland.

10. In Hong Kong, FLG practitioners have been staging static demonstrations at the 26 Locations which they refer to as “truth clarification sites” for years. The sites are manned by individual or several FLG members. Typically, banners, placards or billboards are affixed to the railings or other fixed objects on the roadsides at fixed hours or even around clock. Some of the banners, placards or billboards are sometimes free standing or fixed to portable frames. During the static demonstrations, an individual or a group of FLG practitioners stand or gather in front of the displayed materials, which form the backdrop of the demonstrations. Occasionally the demonstrators distribute pamphlets to the public. The demonstrations usually last for hours. At some of the locations, the banners, placards or billboards are removed after the demonstrations. But at some other locations, the materials are simply left at the scene and continue to be displayed there around the clock.

11. The applicants did not go to all the 26 Locations to join the static demonstrations. They only went to some of them.

12. Mr Hung attended 3 of the 26 Locations only. They were situated at (a) the exterior wall of Exit D2 of Sham Shui Po MTR Station and the public area nearby (“the SSP Site”); (b) railing and public outside Wai Fung Plaza, Argyle Street (“the AS-WFP Site”); (c) the pedestrian precinct in Sai Yeung Choi Street near Shan Tung Street (“the SYCSS Site”). It was Mr Hung who “managed” them. According to him:

(1) At the SSP Site, the FLG demonstrators had not affixed any of the banners or placards to any roadside railings but to their own loose portable frameworks. The frameworks were then placed adjacent to the external walls of the MTR exit and the subway entrance during the demonstration. Mr Hung was responsible for the setting up and removal of the demonstration materials. Demonstrations have been carried out there since 2001.

(2) At the AS‑WFP Site, small size placards are temporarily affixed to the railings during the demonstration. They were removed after the demonstration. Demonstrations have been carried out at the Site since 2007.

(3) At the SYCSS Site, the banners and placards were not affixed to any roadside railings. The FLG demonstrators placed them within the pedestrian precinct near the pavement. The materials were removed after the demonstration. Demonstrations have been carried out at the Site since 2006.

13. Mr Hung had no responsibility for the demonstrations at other locations.

14. Madam Chee joined the static demonstrations at 10 different locations at Sai Wan, Tsim Sha Tsui, Mongkok, Wong Tai Sin and Lok Ma Chau by mainly distributing pamphlets to the public. She herself was not responsible for displaying the banners, placards or billboards at any of the locations that she attends. On the evidence before me, it is not clear as to who is responsible for so doing.

15. It is not in dispute that none of the 13 locations that the applicants attended is the roadside designated spot under the Management Scheme, which means that the Management Scheme has no application to them at all. As to the other 13 locations which the applicants did not attend, it is not clear from the evidence if the Management Scheme applies.

B2. HKYC demonstrations

16. The static demonstrations by the FLG members were by and large peaceful and orderly.

17. However, since June 2012, an organization called Hong Kong Youth Care Association (“HKYC”) has been campaigning against FLG. They staged demonstrations regularly against FLG at some of the 26 Locations, including the three Sites managed by Mr Hung. The FLG demonstrators including the applicants considered the actions taken by HKYC members at their demonstrations hostile because:

(1) they displayed banners hostile to FLG, often in close proximity to the FLG banners obstructing the public’s view of the latter;

(2) they harassed, threatened and intimidated FLG demonstrators by shouting abuse at them;

(3) they placed loudspeakers set at high volume very close to FLG demonstrators, thereby causing severe discomfort; and

(4) a HKYC supporter had on one occasion brandished a knife at a reporter at a FLG demonstration.

18. The FLG demonstrators complained that the HKYC’s activities had resulted in nuisance and annoyance, both to them and occasionally to members of the public in the vicinity.

B3. Enforcement actions

19. Since mid‑2012, FEHD had received a large number of public complaints in respect of the unauthorized display of publicity materials by FLG and HKYC. Following up on the complaints, FEHD conducted investigations, which revealed that FLG and HKYC displayed their publicity materials very close to each other and that there had been much disputes and even physical acts of confrontation between members of FLG and HKYC.

20. Between October 2012 and February 2013, The Ombudsman also received complaints from some members of the public and 東堤灣畔住宅業主附屬委員會 against FEHD about the prevalent unauthorized display of publicity materials by FLG and HKYC in public areas and the apparent inadequacy of enforcement actions taken by FEHD. The Ombudsman issued three investigation reports in May 2013 in which the Ombudsman found that the complaints were partially substantiated.

21. In the meantime, the prevalence of unauthorized display of publicity materials had also caught the attention of a LegCo member who raised his concern at a LegCo meeting on 9 January 2013.

22. In light of these developments, FEHD decided to step up the enforcements actions against FLG and HKYC in respect of their unauthorized display of publicity materials. Prior notice that enforcement actions would be undertaken was given by :

(1) a press release issued by the Government on 2 April 2013 announcing that the relevant authority would step up enforcement against unauthorized display of publicity materials in public places;

(2) warning letters issued to the Hong Kong Association of Falun Dafa (“FLG Association”) and HKYC on 2 April 2013; and

(3) warning letters fixed on the unauthorized materials displayed by FLG and HKYC on 5 April 2013, stating that FEHD intended to take enforcement action without further notice.

23. A few days later, HKYC began to remove their displays.

24. However, the FLG demonstrators refused to heed FEHD’s warnings.

25. On 8 April 2013, 5 representatives of FLG practitioners, namely, Mr Chow Wai Tung, Ms Liu Chau Lan (“Ms Liu”), Ms Chau Sing, Ms Ho Lai Ha and Mr Hui Kwok Hung (“Mr Hui”) met with FEHD’s Senior Superintendent KK Lam to discuss the matter. The applicants’ case is that the FLG representatives explained to Inspector Lam that they believed that their displays were a lawful exercise of free speech and of the right to demonstrate, and for this reason FEHD should not take enforcement action against the displays under the Ordinance. They also asked for a stay of the enforcement action until their stance had been made known to the Director. Senior Superintendent Lam told the FLG representatives that he would explain the position to his superiors but he could not make any promise in relation to the pending enforcement action. He further asked for a note summarizing FLG’s legal position on the displays as explained in the meeting (“the Note”), so that he could explain it more easily to his superiors.

26. On 12 April 2013, FEHD commenced enforcement action and removed the publicity materials from the FLG demonstrations sites.

27. On 15 April 2013, Ms Liu handed the Note to Senior Superintendent Lam. She asked him why enforcement action was being taken without a response from FEHD to the points made at the meeting on 8 April 2013. In reply, Senior Superintendent Lam said legal advice had been obtained. In a further written reply to another of the 5 representatives dated 22 April 2012, Senior Superintendent Lam stated that all activity organizers must obtain permission from LD for displays of materials on roadsides.

28.      FLG representatives held another meeting with FEHD’s Superintendent KK Lai on 10 May 2013.  The applicants’ case is that FLG representatives went through the points in the Note one by one and queried why enforcement was necessary.  Superintendent Lai reiterated that the enforcement action was necessary as the displays without permission contravened section 104A of the Ordinance.  FLG representatives sought clarification on the degree of tightening up of enforcement by FHED.   Superintendent Lai confirmed that all displays would be subject to enforcement except hand‑held displays not touching the ground.   However, once such hand‑held displays touched the ground, it would also be subject to enforcement action.”

6.Under the Ordinance, the Director is the Authority for granting permission under Section 104A(1)(b).  As explained by G Lam J at [4] to [6] of the judgment of 31 August 2018, there was a delegation of the power by the Director to some officers in the Lands Department who processed applications for approval in accordance with a published Management Scheme[5].  However, the 26 FLG demonstration locations referred to in the present proceedings are not within the Management Scheme.  For those sites, permission would have to be sought from the Director.

7.There is no dispute before us that freedom of expression, assembly and demonstration are engaged.  Such freedoms are protected under Art 27 of the Basic Law and Arts 16 and 17 of the Hong Kong Bill of Rights.  Art 39 of the Basic Law provides that these freedoms shall not be restricted unless as prescribed by law.

8.Further, it is also not disputed that statutory restriction on the exercise of those rights must satisfy the proportionality test: see Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229.  

9.In the present appeals, the respondents sought to overturn the conclusion of G Lam J that Section 104A does not satisfy the prescribed by law requirement.  At the same time, by their respective Respondent’s Notices, the applicants asked this Court to hold that the statutory provision does not satisfy the proportionality test.

10.Before we address the merits of the submissions of counsel, the context in which these questions arise for consideration needs to be set out.  On the facts of the case, the applicants did not make any applications to the Director for permission to display banners in the FLG demonstrations.

11.In this connection, though the FLG demonstration locations were not sites within the scope of the Management Scheme, the evidence before the Court is that had there been such applications, they would be considered by the Director with reference to the object of the statutory control and the principles behind the Management Scheme on a case-by-case basis[6]. The Director did not see the need for publishing guidelines for non-Management Scheme application due to the rarity of such applications.  Over the years, there had only been one application.  It is also said that the Director would also consider why the applicants did not make an application in respect of the designated locations under the Management Scheme.

12.The Director, according to the evidence, would not apply censorship to such applications and reject the same for the mere fact that the applicants were FLG practitioners.  However, as stated in the Management Scheme, there is a content based criteria.  Paragraph 1 of the 2011 Management Scheme set out the objective of the scheme as follows:

“ The display of bills and posters on Government land including display of roadside publicity materials is an offence unless such display is with the written permission of the Authority by virtue of section 104A(1) of the Public Health and Municipal Services Ordinance, Cap. 132. The Management Scheme aims at ensuring that the display of roadside publicity materials:

(a) is for the purpose of the promotion of public awareness of matters of general and significant community interests of non‑commercial nature. In this connection, priority will be given to such display which is by Legislative Council (LegCo) and District Council (DC) Members to communicate with their constituents, which seeks to promote public awareness or participation in matters of district administration and community building, and which is by the Government to promote important public events and campaigns such as the East Asian Games, ‘Keep Hong Kong Clean’ and ‘Anti‑Drug Abuse’;

(b) is permitted in an orderly fashion for those classes of persons specified in the Management Scheme at spots designated by the Authority;

(c) will not prejudice the safety of pedestrians and motorists using the road concerned; and

(d) is subject to such other terms and conditions provided in the Management Scheme such as the maintenance and removal of the banners.”

13.Further, after considering the statutory provisions and relevant context, Poon J identified the statutory purposes[7] of the regulatory regime which was summarised by counsel before G Lam J as follows:

“ The purpose of the regulatory scheme in this part of the Ordinance strives at protecting and preserving the cityscape of Hong Kong. The regulatory scheme ensures that our cityscape and public places would not be subject to environmental nuisance and pollution caused by haphazard, tardy or unsightly displays of publicity materials and its proliferation. Second, Hong Kong’s public places are public resources available to all citizens. They are open to all for lawful and reasonable use and enjoyment. Nobody has or can possibly claim any monopoly on enjoying or using the public places in any way as he sees fit to the exclusion of his fellow citizens or in total disregard of their legitimate interests. The regulatory scheme ensures that where one’s use of public places involves displaying publicity materials, it will not unduly interfere with other citizens’ use or enjoyment of the same for legitimate purposes. Third, given the scarcity of public places and the growing demand for displaying publicity materials, the regulatory scheme ensures there will be control and prioritisation in the display of bills and posters in public places. In the absence of control, chaos might easily deteriorate into serious disputes, commotion or even physical violence. Fourth, bills and posters displayed publicly can pose traffic risks to road users. Control is necessary to ensure that such activities do not pose any traffic risks.”

14.These statutory objectives were accepted by G Lam J at [78] of the judgment[8].  Mr Harris mounted no challenge to these statutory objectives though he maintained that the scheme only aimed at regulation of display of unattended bills and posters.  The judge held at [80] that notwithstanding the submissions of Mr Harris, these statutory objectives may properly inform the exercise of the discretion under the Ordinance.

15.Under the Management Scheme, the materials to be displayed have to be “for the purpose of the promotion of public awareness of matters of general and significant community interests of non-commercial nature”.  However, there is no scheme for locations not falling within the Management Scheme.  It was said that applications outside the Management Scheme would be considered on a case by case basis with guidance from the statutory objectives and the Management Scheme. 

16.It is not for the Court to speculate what would have been the outcomes had applications been made by the applicants for the use of banners in their static demonstrations.  In the circumstances, the applicants could only advance systemic challenges by reference to the general framework for the implementation of the statutory provisions as depicted in the materials before the Court.

17.In the judgment of this Court of 6 June 2016 (“CA Judgment”), it was held that as a matter of construction, Section 104A does not apply to the use of banners or placards in a demonstration (whether mobile or static) which does not occupy the same spot with a degree of permanence and habitual regularity.  Conversely, if a banner is displayed at the same spot with a degree of permanence and habitual regularity, it would be subject to the regulatory regime even if it is used in association with the exercise of a right of demonstration. 

18.Notwithstanding the invitation of Mr Harris to reconsider this issue in light of the judgment of the Court of Final Appeal in HKSAR v Tse Man Fei (2016) 19 HKCFAR 492, we do not find any basis for us to do so.  With respect, the question which arose for determination in that case is wholly different.  It was common ground that there had been a display of a poster[9] and the issue was whether a defendant who was not the person setting up the cardboard structure could nevertheless be guilty of the offence under section 104A(1)(b) by virtue of the concept of “perceptive display”.  That argument was rejected by the Court of Final Appeal.  In the judgment of Fok PJ at [53], His Lordship expressly refrained from addressing the issues raised in the present appeal.

19.In coming to the construction of Section 104A as this Court did, the following was said in [45] of the CA Judgment:

“ …The difficulty with Mr Harris’ approach is that counsel read the right of demonstration as a right to conduct demonstration in what he perceived to be a reasonable manner without regard to other legitimate competing interests and concerns. We agree with the Judge (supported by Mr Yu) that one of the legitimate objectives is the orderly, fair and prioritised allocation of public space for dissemination of ideas. Without some proper control in place, there would be chaotic scramble for the display of bill or poster. And there could also be chaotic scramble even in the context of the competing exercise of the right of demonstration by different political or social factions in our society. The construction of Mr Harris will frustrate one very important objective of this statutory scheme.”

20.This Court also addressed the applicant’s submission that the mere requirement of obtaining permission for the display of banner in association with demonstration occurring at the same spot with a degree of permanence or habitual regularity would be a disproportionate restriction of the freedom of demonstration.  At [80] of the CA Judgment, this Court held:

“ …we do not regard the mere fact that approval is required is disproportionate. There are many authorities showing that when such measure is introduced with legitimate aims safeguarding public interest, a requirement to obtain prior approval can be a justifiable restriction on the freedom of expression, T v Commissioner of Police, supra, at §§125 to 128 where Ribeiro PJ discussed section 4(15) of the Summary Offences Ordinance as adequate control over buskers; Butler v Derby City Council [2006] 1 WLR 1346; Mouvement Raelien Suisse v Switzerland (2013) 56 EHRR 14; R (Core Issues Trust) v Transport for London [2014] EWCA Civ 34.”

21.In other words, given the legitimate aims to be served by the statutory provision, there is no valid reason for drawing a distinction between display of banners by demonstrators and the others insofar as the need to have prior approval is concerned.  The considerations on environmental tidiness and orderly use of public resources apply with equal force irrespective of the motive of those displaying a banner, or posting or the painting of words or signs on any wall, fence, railing, post, rock, road-cutting or tree.  The Authority should have the power to remove such bills or posters even if they contained political messages which can be regarded as a form of demonstration.  Graffiti can be, and very often is justifiably regarded as, a form of demonstration as some of them may contain political or social messages.  Notwithstanding this, they are still graffiti.  

22.The main concern which precluded this Court from reaching an overall conclusion on the proportionality of the statutory control regime is the lack of information on the criteria for permission to be granted, in particular the criteria to be applied in vetting the contents of the materials to be displayed.  Thus, it was said at [82]:

“ … Handicapped by the way in which the argument was developed, Mr Yu understandably could not tell us whether the conditions for approval would be more stringent or more relaxed in respect of spots not managed by the Lands Department. On the existing materials, we do not know to what extent approval would be granted or withheld by reference to the contents of the poster or bill and the criteria to be applied in vetting the contents (if they are relevant). The Director may address these issues in the evidence to be filed.”

Prescribed by law

23.The law on this requirement, which stems from Art 39 of the Basic Law and Arts 16 and 17 of the Hong Kong Bill of Rights (“HKBOR”), is not in serious dispute.  In The Sunday Times v United Kingdom (1979-80) 2 EHRR 245 at [49], the European Court of Human Rights set out the two requirements flowing from the concept “prescribed by law”:

“ … First, the law must be adequately accessible: the citizen must be able to have an indication that it adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is 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. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.”

24.In Hashman v United Kingdom (2000) 30 EHRR 241, the European Court at [31], after expressing similar views on the requirement of certainty, said:

“ The level of precision required of domestic legislation --- which cannot in any case provide for every eventuality --- depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those or whom it is addressed.”

25.Similar formulations can be found in the jurisprudence of our Court of Final Appeal: see Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at [62] to [65] and [89] to [90]; Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386 at [59] to [62]; Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at [25] to [29]; Winnie Lo v HKSAR (2012) 15 HKCFAR 16 at [19] to [21] and [73] to [77]. 

26.In this appeal, there is no issue on the first limb of this requirement as to the accessibility of the law.  The focus of the dispute before us was on the second limb of this requirement in terms of foreseeability. 

A.1    Foreseeability and safeguards against arbitrary interference

27.In Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at [29], the majority of the Court of Final Appeal had this to say:

“ A law which confers discretionary powers on public officials, the exercise of which may interfere with fundamental rights, must give an adequate indication of the scope of the discretion. The degree of precision required of the law in this connection will depend upon the particular subject matter of the discretion.”

28.At [81] of the CA Judgment, this Court adverted to an important facet of this requirement being that “a norm must be formulated with sufficient precision to enable a citizen to regulate his conduct so that he is able, with legal advice if necessary, to foresee the consequences which a course of action will entail”.

29.In the course of his submissions, with reference to some European authorities, Mr Yu contended that in respect of an administrative discretion the requirement of foreseeability is to be assessed by examining if there is sufficient clarity to protect an individual against arbitrary interference.  He cited a number of authorities in support of this proposition: Hasan and Chush v Bulgaria (2002) 34 EHRR 55 at [84] and [86]; Glas Nadezhda Food and Elenkov v Bulgaria (2009) 48 EHRR 35 at [46]; Centro Europa 7 Srl v Italy (2012) 32 BHRC 417 at [143]; R (Purdy) v DPP [2010] 1 AC 345 at [41]; R (Core Issues Trust) v Transport for London [2014] PTSR 785 at [58]. 

30.Amongst these authorities, it suffices for us to cite the following,

(a) In R (Purdy) v DPP [2010] 1 AC 345, Lord Hope said at [41]:

“ … A law which confers a discretion is not in itself inconsistent with the requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary.”

(b) In, Glas Nadezhda Food and Elenkov v Bulgaria (2009) 48 EHRR 35, the European Court of Human Rights said at [46]:

“ Domestic law must also afford a measure of legal protection against arbitrary inferences by public authorities with the rights guaranteed by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise. It must furthermore provide adequate and effective safeguards against abuse, which may in certain cases include procedures for effective scrutiny by the courts.”

31.On the other hand, Mr Harris submitted on behalf of the applicants that to satisfy the foreseeability requirement the law must enable a citizen to regulate his conduct so that he is able, with legal advice if necessary, to foresee the consequences which a course of action will entail.  In the present context, it means that a citizen should be able to tell, with legal advice, the likelihood of consent being given under section 104A if an application is made. 

32.In the court below, G Lam J apparently accepted Mr Yu’s formulation at [52] to [55] of the judgment[10]. On the facts, His Lordship concluded that section 104A conferred a power on the Director which is essentially unfettered in the sense that the statute itself does not set out any limit or guidance on the exercise of the discretion[11]. He was of the view that the object and purpose of the legislative power did not give sufficient guidance[12].  For cases falling outside the scope of the Management Scheme, the judge held that the “prescribed by law” requirement could not be satisfied by such applications being dealt with on a “case by case basis”[13]. 

33.In our judgment, the matter should be analysed by reference to the statutory scheme in question.  As submitted by Mr Yu, upon reading the provisions in Sections 104A to 104C, a citizen can reasonably foresee the legal consequences if a poster or bill is displayed on any Government land without the written permission of the Director: the person doing so is guilty of an offence under Section 104A(2) and the poster or bill is liable to be removed by the Director under Section 104C(1). 

34.The statutory scheme confers a discretion on the Director to grant written permission.  The provision for discretionary power by itself does not infringe the “prescribed by law” requirement provided that the law indicates with sufficient clarity the scope of any such discretion and the manner of its exercise and provides adequate and effective safeguards against abuse.  Such safeguards may include procedures for effective scrutiny by the courts.

35.By the very nature of a discretionary power, it may not always be predictable with certainty whether an application for written permission would be successful.  However, if a citizen consults a lawyer and such lawyer is able to tell him that the discretionary power can be exercised within a certain scope and in a particular manner and there are safeguards against abuse, in our view the requirement of foreseeability is satisfied.  

36.The crucial question in the present context is whether there is sufficient clarity as to the scope of the Director’s power and the manner of its exercise and whether the law provides adequate effective safeguards against abuse.  If these tests are met, there would be legal protection against arbitrary interference by the Director with the right to demonstration and the freedom of expression. 

A.2    “The law”: a holistic approach

37.Before we address this issue, we should first examine the concept of “the law” in this context.  Mr Yu submitted that the court should adopt a holistic approach and have regards not only to the statutory provision in question but also the common law and even published policy and guidelines. 

38.In R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148:

(a) The legal regime in question was set out by Lord Bingham at [4] to [17] of the judgment.  There were three layers of written rules: the statute (which generally provided for the admission, detention and treatment of mental patients in NHS hospitals, and also provided for the preparation of Code of Practice by the Secretary of State), the Code of Practice (which addressed seclusion, see [10]; and the issue of guidelines by each hospital, see [11]) and the policy published by Ashworth Hospital (which repeated the Code’s definition and statement on seclusion, see [14], but there was a discrepancy between the Code and the Ashworth policy in terms of frequency of review, see [22]).  One of the issue before the court was whether the interference with the right of respect for private or family life under article 8 of the European Convention was justified, in particular whether the interference by way of seclusion was ‘in accordance with the law’.

(b) Lord Bingham held that it was permissible to take account of the formulation of the relevant rule in non-statutory policy.  At [34], His Lordship said:

“ … The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre-existing rules, and that the circumstances and proceedings adopted are predictable and foreseeable by those to whom they are applied. This could of course have been achieved by binding statutory provisions or binding ministerial regulations. But that was not the model Parliament adopted. It preferred to require the Secretary of State to give guidance and (in relation to seclusion) to call on hospitals to have clear written guidelines. Given the broad range of institutions in which patients may be treated for mental disorder … it is readily understandable why a single set of rules, binding on all, was thought to be undesirable and perhaps impracticable.”

(c) Lord Bingham also explained the legal effect of the Code at [21]:

“ …the Code does not have the binding effect which a statutory provisions or a statutory instrument would have. It is what it purports to be, guidance and not instruction. But the matters relied on by Mr Munjaz show that the guidance should be given great weight. It is not instruction, but it is much more than mere advice which an addressee is free to follow or not as it chooses. It is guidance which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so … In reviewing any challenge to a departure from the Code, the court should scrutinise the reasons given by the hospital for departure with the intensity which the importance and sensitivity of the subject matter requires.”

(d) Lord Hope also addressed the effect of the Code at [64] to [71].  In particular at [69], Lord Hope expressed his agreement with Lord Bingham requiring cogent reasons to be given for any departure from the Code. He explained the concept of “law” in the context of an “in accordance with the law” challenge at [91]:

“ … ‘Law’ in this context is not limited to statutory enactment or to measures, such as the Code, that have their base in a statute. It includes the common law …”

(e) At [92], Lord Hope alluded to the protection available to patients under the general law apart from the procedures in the policy as part of the reasons for his conclusion that the policy satisfies the requirement of precision and accessibility:

“…Patients are protected against random or arbitrary interferences with their article 8(1) rights by the fact that the policy sets out standards in the light of which under domestic law judicial review of such interferences is available. The protections that are available to patients under the civil and the criminal law are reinforced by them.”

(f) In the same vein, Lord Scott said at [103]:

“ ... ‘The law’, for article 8 purposes, does not consist only of statutes, directives, statutory codes and the like. It must include, also, the variety of duties and rights arising out of the circumstances in which individuals and institutions find themselves and their relationship with one another that are imposed by the common law.”

39.The proposition that law includes unwritten law can hardly be disputed.  Common law is recognized to be a source of law in Hong Kong and there are ample authorities for taking common law into account in assessing in a particular case whether the foreseeability requirement under “prescribed by law” is satisfied: Sunday Times v The United Kingdom (1971) 2 EHRR 245; Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381; Mo Yuk Ping v HKSAR (2007) 10 HKCFAR 386 and Winnie Lo v HKSAR (2012) 15 HKCFAR 16. 

40.More recently, the foreseeability requirement was considered in the context of television broadcasting licensing in Hong Kong Television Network Ltd v Chief Executive in Council [2016] 2 HKLRD 1005.  This limb of challenge failed in the Court of First Instance (Au J, as Au JA then was) [2015] 2 HKLRD 1035 and in the Court of Appeal (Cheung CJHC, as he then was, Barma JA and Poon J, as he then was).  At [100] of its judgment, the Court of Appeal expressly agreed with the reasons given by Au J on this issue.

41.In that case, the statutory provisions[14] conferred a wide discretion on the Chief Executive in Council to grant licence.   After reviewing the relevant principles in respect of the foreseeability requirement at [121] of the first instance judgment, Au J took account of various matters in reaching the conclusion that the court can interpret the very widely worded statutory provisions for the purpose of determining whether the exercise of power by the Chief Executive in Council is within or out-with the scope conferred by them.  In consequence, a reasonably competent lawyer would be able to advise an applicant on the scope of and the manner in which the discretion would have to be exercised[15].   These matters included reading the ordinance together with a non-statutory Guidance Note promulgated by the Communication Authority (whose recommendations are not binding on the Chief Executive in Council though they were obliged to take account of it in the absence of cogent reason for not doing so) setting out criteria for assessment of licence application, identifying the statutory objectives by reference to a LegCo brief, as the underlying context of the ordinance (public interest), and the other provisions in the same statute[16].  Au J also referred to the amenability of the decision of the Chief Executive in Council to judicial review and the requirement of fairness in our public law safeguard[17].

42.As mentioned, this approach was endorsed by the Court of Appeal.  In the judgment of the then Chief Judge, it was described as a holistic approach which takes into account all relevant requirements and characteristics of the common law[18].  

43.In R (on the application of E) v Ashworth Hospital Authority [2001] EWHC Admin 1089, Richards J held at [42] that in the context of the statutory provision in very general terms, greater precision can be given to it by case law, citing the judgment of the European Court at [41] in Herczegfalvy v Austria (1992) 15 EHHR 437.  

44.Further, the holistic approach also examined how the law is actually administered, including the effectiveness of judicial supervision through judicial review.  In Glas Nadezhda Food and Elenkov v Bulgaria, supra, the Strasbourg Court found that the published programme criteria in question were sufficiently precise to comply with the Convention requirement of lawfulness[19].  It went on to examine if its actual application in the licensing process provided sufficient guarantees against arbitrariness and found the process to be defective and that inadequate redress was provided by way of judicial review[20].  Hence it was held that a violation was established. 

45.As held by Lord Hope and Lord Scott in R (Munjaz) v Mersey Care NHS Trust, supra, the law includes the common law and the availability of judicial review to safeguard against any arbitrary interference in the context of a generally worded discretion.  So long as there is sufficient guidance in the published rules or policies setting out the boundaries of an administrative discretion, it would provide an adequate basis for working out the precise outcome in a particular case by way of judicial review.

46.Though G Lam J did not address the proper approach explicitly, he dealt with the various strands of argument of Mr Yu based on this approach in his judgment[21].  We do not read the judgment as departing in any way from the holistic approach. 

47.The holistic approach is consistent with European jurisprudence.  In one of the earlier cases on the “prescribed by law” requirement, the Strasbourg Court acknowledged in Silver v United Kingdom (1983) 5 EHRR 347 at [88] that many laws were inevitably couched in vague terms the interpretation and application of which were questions of practice.  On the facts of the case, the Orders and Instructions issued by the Home Secretary established a practice and the court held that they could be taken into account in assessing whether the requirement of foreseeability was satisfied.  At [90] the court further acknowledged that the safeguards against the arbitrary interference with fundamental rights by way of discretionary power need not be enshrined in the very text which imposed the restrictions.

48.The Strasbourg Court reiterated that the detailed procedures and conditions to be observed did not have to be incorporated in rules of substantive law in Malone v United Kingdom (1984) 7 EHRR 14 at [68]. 

49.Mr Harris referred to other parts of that paragraph where the court stated that the law should indicate the scope of the discretion.  Counsel submitted that where a discretion is granted by a statute, it is only right that the legislature should have considered the proper extent of the power it is granting.  Citing the judgment of O’Regan J in the South African case of Dawood, Shalabi and Thomas v Minister of Home Affairs (2000) 3 SA 936 at [54], counsel submitted that the statute itself should set out the limit of discretionary power or guidance on the exercise of the same. 

50.Insofar as Mr Harris was making a general submission that all statutory discretions must contain explicit limitations on the same in order to satisfy the “prescribed by law” requirement, we must respectfully reject the same.  Such proposition is directly contradictory to the Court of Appeal’s decision in Hong Kong Television Network Ltd v Chief Executive in Council, supra.  It is also against the holistic approach adopted in the cases discussed above. 

51.In his oral submissions, Mr Harris accepted that the approach in South Africa may not be the same as in Hong Kong.  Counsel’s submissions then concentrated on the lack of clarity on the scope and exercise of discretion even if the various matters relied upon by Mr Yu were taken into account.

A.3    The degree of precision

52.As has often been recognized, absolute precision or certainty is not achievable.  In the context of a challenge to a common law offence, Sir Anthony Mason NPJ said in Mo Yuk Ping v HKSAR supra, at [61] to [63]:

“ [61] … Hence it is recognised that a prescription by law inevitably may involve some degree of vagueness in the prescription which may require clarification by the courts.

[62] … In any event, with the common law, as with the interpretation of statute law, it is inevitable that questions continue to arise which require clarification by judicial decision. That is one reason why absolute certainty is unattainable and why some degree of vagueness is inherent in the formulation of laws, especially laws expressed in general terms.

[63]  It is also to be expected that, in the case of a general offence expressed in broad and abstract terms, that the degree of vagueness will be perhaps greater than that to be expected in the case of a specific offence directed to a particular situation or particular situations.” 

53.As regards the degree of precision, Ribeiro PJ said in Winnie Lo v HKSAR supra, [75]:

“ The central requirement is therefore that the offence must have a sufficiently clearly formulated core to enable a person, with advice if necessary, to regulate his or her conduct so as to avoid liability for that offence. At the same time, the principles recognise the need for both flexibility and development.”

54.The same principle applies in respect of the extent of precision for discretion in licensing context.  Hong Kong Television Network Ltd v Chief Executive in Council, supra, was a case on broadcasting licence.  Cheung CJHC (as Cheung PJ then was) said at [98]:

“ Quite inevitably, there will be marginal or fringe cases where there are doubts. But as Ribeiro PJ emphasised in Winnie Lo, what is important is whether there is ‘a settled core’ of meaning of the norm in question. If the answer is in the affirmative, the mere existence of debatable issues surrounding the settled core does not make the norm legally uncertain …”

55.Au J, in the first instance judgment in Hong Kong Television Network Ltd v Chief Executive in Council, supra, summarized the relevant propositions in two sub-paragraphs at [121]:

“ (5) Further, where the issue is the exercise of a discretionary power conferred by statute, the degree of precision required of the law will also be adjusted, depending on the particular subject matter of the discretion (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at [29], p.251), the content of the instrument in question, the field it is designed to cover, and the number and status of those to whom it is addressed. The law needs only to be formulated with sufficient precision to enable the individual, with appropriate advice when necessary, to regulate his conduct (Hasan v Bulgaria (2002) 34 EHHR 55 at [84]).

(6)   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: see Sunday Times at [52]; R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 at [62].”  

56.The judgment of Justice Gonthier in the Supreme Court of Canada in the last case cited by Au J at (6), R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606, provides some illuminating discussion on the scope of precision.  At p.638-640, the learned judge said:

“ Legal rules only provide a framework, a guide as to how one may behave, but certainty is only reached in instant cases, where law is actualized by a competent authority. In the meanwhile, conduct is guided by approximation. The process of approximation sometimes results in quite a narrow set of options, sometimes in a broader one. Legal dispositions therefore delineate a risk zone, and cannot hope to do more, unless they are directed at individual instances.

By setting out the boundaries of permissible and non-permissible conduct, these norms give rise to legal debate. They bear substance, and they allow for a discussion as to their actualization. They therefore limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens.

Indeed no higher requirement as to certainty can be imposed on law in our modern State. Sematic arguments, based on perception of language as an unequivocal medium, are unrealistic. Language is not the exact tool some may think it is. It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance. All it can do is enunciate some boundaries, which create an area of risk. But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made. Guidance, not direction, of conduct is a more realistic objective. ….

A vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.  It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion.  Such a provision is not intelligible … and therefore it fails to give sufficient indications that could fuel a legal debate.  It offers no grasp to the judiciary…”

57.The learned judge explained the need for general enactments in the modern world at p.641-3.  In particular:

“ … Often the State attempts to realize a series of social objectives, some of which must be balanced against one another, and which sometimes conflict with the interests of individuals. The modern State, while still acting as an enforcer, assumes more and more of an arbitration role.

This arbitration must be done according to law, but often it reaches such a level of complexity that the corresponding enactment will be framed in relatively general terms. In my opinion the generality of these terms may entail a greater role for the judiciary …

… One must be wary of using the doctrine of vagueness to prevent or impede State action in furtherance of valid social objectives, by requiring the law to achieve a degree of precision to which the subject-matter does not lend itself. A delicate balance must be maintained between societal interests and individual rights…

What becomes more problematic is not so much general terms conferring broad discretion, but terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled.  Once more, an unpermissibly vague law will not provide a sufficient basis for legal debate; it will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements.  In giving unfettered discretion, it will deprive the judiciary of means of controlling the exercise of this discretion…”

58.Here, under section 104A(1)(b) of the Ordinance we are concerned with a statutory power applicable to a wide range of public spaces and a large variety of potential users and purposes for which posters and bills may be displayed or affixed.  The size and contents of such posters and bills also varies.  The characters of the location and neighbourhood as well as duration for the display and affixing of them also varies with different environmental and social issues arising therefrom.  The conflict of interests behind a decision on permitting or refusing permission for display and affixing of posters and bills can vary.  In such circumstances, it is inevitable that the statutory provision has to be worded in a general manner.       

A.4    Certainty as to the scope of the discretion and the manner of its exercise

59.Mr Yu submitted that the scope of the discretion is to be determined by reference to the statutory objectives in accordance with the well-established principle in Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997 at 1054g and 1060 E-G and Congreve v Home Office [1976] QB 629 at 649F.  As regards the manner of its exercise, it is to be guided by the Management Scheme.

60.The judge rejected the first part of this submission at [82] of the judgment:

“ The respondents pray in aid various public law principles that inform or place limits on the exercise of statutory powers. Thus it is argued that general powers conferred by legislation are limited by, and can only be exercised in accordance with, the objects and purposes of the statute: Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997, 1054G, 1060E‑G. Granted that the exercise of power under s 104A(1)(b) must be rooted in protecting the cityscape, balancing the use of public space by different segments of the citizenry, preventing chaos and conflicts in the competition for such space, and promoting road safety, I do not think that in the present context this principle gives sufficient guidance. These are matters that can point in many directions. For example, they have been construed by the respondents as permitting the decision‑maker to take account of the content of bills and posters to see if they are ‘objectionable’ (see Part 7(b)(iv) of the Management Scheme). The respondents have apparently interpreted the purpose as mandating or enabling them to prevent the display of, inter alia, ‘lurid pictures’, ‘defamatory’ messages and nuisance caused by ‘accusations and counter‑accusations, and cacophony of messages all done for one cause or another’. These show the width of the use to which the power may be put at the discretion of the Director or Lands Department officials even as guided by the objects and purposes of the statute. In my view these ‘objects and purposes’ give insufficient guidance under the ‘prescribed by law’ principle.”

61.Mr Yu relied on Francis v Chief of Police [1973] AC 761 at p.773 as an instance where the statutory provision conferring the discretionary licensing power on the Chief of Police regarding use of loudspeaker in a public meeting did not contain any guidance yet was upheld by the Privy Council to be valid as guidance could be derived from the object of the enactment.  Lord Pearson said:

“ It is plain from the preamble to the Act and from its provision as a whole that its object is to facilitate the preservation of public order. That being the object of the Act, he must exercise his powers bona fide for the achievement of that object.”

62.The judge considered this authority at [84] and noted that there was a concession in that case that freedom of assembly and demonstration was not engaged and the only freedom engaged was freedom of expression. 

63.In the present case, as held by the judge, freedom of demonstration is engaged.  However, we do not find this to be a sufficient basis for distinguishing Francis v Chief of Police, supra in terms of the setting the boundary of a statutory discretion by reference to the object of the statute. 

64.The judge did not have any quarrel with this proposition as he acknowledged that the exercise of power under Section 104A(1)(b) must be rooted in protecting the cityscape, balancing the use of public space by different segments of the citizenry, preventing chaos and conflicts in the competition for such space, and promoting road safety[22], the statutory objectives identified by Poon J in the earlier judgment. However, he held that these objectives did not give sufficient guidance as these matters can point in many directions.  He further observed that they were interpreted as precluding materials containing objectionable contents, a very wide power.

65.With great respect, we differ from the judge on his conclusion that the statutory objects do not provide sufficient guidance for the purpose of the “prescribed by law” requirement.  As discussed earlier, by the nature of this particular power under Section 104A(1)(b), the discretion has to be framed widely and generally.  Testing the issue by asking if these statutory objects provide sufficient framework or boundary for meaningful legal debate on its proper scope, we are of the view that the statutory objects do set sufficient guide for proper control of the exercise of discretion by the court to prevent arbitrary interference with the display of banners or poster including such display for a static demonstration of habitual regularity or permanence. 

66.In this connection, it should be borne in mind that the interference with the right of demonstration is limited.  In the assessment of the constitutional compliance of a legal restriction on the exercise of fundamental human rights, the extent of restriction can be relevant, see HKSAR v Ng Kung Siu [1999] 3 HKLRD 907 at 921.  The discretion would not affect the use of banner or poster in a mobile demonstration.  Unlike the Aldermaston camps in Tabernacle v The Secretary for State for Defence [2009] EWCA Civ 22, Mr Harris could not pinpoint the significance of the regular use of a particular site for the FLG demonstrations.  This is not a case where the static demonstration at a regular location or site carries with it symbolic meaning in the exercise of the right of demonstration. 

67.Granted that the exercise of this power may entail prohibition against the display of defamatory messages or lurid pictures, we do not think the power is unlimited.  Such content-screening can only be permitted insofar as it is necessary for the furtherance of the statutory objectives.  So understood, the width of the power could not be a reason for holding that the discretion is not prescribed by law though one may still challenge its proportionality.

68.In terms of the manner of exercise of the power, the Ordinance itself prescribes that the Director shall be the Authority to grant permission.  The Management Scheme designated spots for display of publicity banners and posters and set out the criteria and procedure for applications.  In his judgment in the present case, Poon J recited the genesis of the scheme (tracing back to a pilot scheme introduced in 1993) and its revision in 2011 upon the recommendations of the Ombudsman and consultation with the LegCo and the District Councils[23].  As observed, the scheme only governs designated spots and application cannot be made by an individual unless he is a LegCo or District Council member.  The evidence before us suggested that the scheme is subject to review from time to time.

69.In respect of applications in respect of non-Management Scheme spots, there is no published policy.  The applicants did not make any application and the sites where FLG held their static demonstrations were non-Management Scheme spots. 

70.According to the evidence[24], there had only been one application since 2011 in respect of non-Management Scheme spot and it was an application made by an individual who was not eligible to make an application under the Management Scheme.  The application was however made to the Lands Department under the Management Scheme, and was refused because he was not eligible and the site was not a designated spot.

71.There is a tension in the evidence as to the possibility of an application in respect of a non-Management Scheme spot.  On the one hand, one of the objectives of the Management Scheme is said to be the control of the number of designated spots[25] and the Ombudsman emphasised that the use of public locations for display of banners is a concession at public expense and they should be subject to stringent control[26]. The designated spots were agreed upon after due consultation and consideration being given to the locations and safety and environmental assessments.  On the other hand, it was said that applications regarding non-Management Scheme would be considered on a case by case basis based on all relevant factors including the statutory objectives, the criteria set out in the Management Scheme and the reason why the applicant does not or cannot make an application under the Management Scheme[27]. 

72.The evidence also shows that the designated spots under the Management Scheme have not been fully utilized and there has not been any applications in respect of non-Management Scheme sites (other than the one exception mentioned at [70] above).  As mentioned, there had not been any applications for display of banners in respect of the FLG demonstrations. 

73.In our judgment, based on the evidence before the court, the Management Scheme is the primary mode of control exercised by the Authority (delegating the power to the Director of Lands) under Section 104A(1)(b).  At the same time, as the statute itself does not limit its application to designated spots and has no provision for eligibility criteria, the Authority must have a residual power to grant permission in cases falling outside the Management Scheme.  However, given the residual nature of such power, the Authority would be expected to exercise such power paying due regard to the policy considerations embodied in the Management Scheme with necessary modifications in respect of applications by individuals (other than Legislative Council and District Council members) or applications regarding non-Management Scheme spots.

74.So understood, we agree with Mr Yu that G Lam J erred in holding that the Management Scheme could not provide relevant guidance to an applicant in a case falling outside the scope of that scheme.  With such guidance, the exercise of the residual discretion by the Authority on a case by case basis is not arbitrary.  

75.Further, in testing if the law in place could satisfy the “prescribed by law” requirement, for the reasons discussed at Sections A.2 and A.3 above, one should adopt a holistic approach and take into account the possibility of the guidance from courts by way of judicial review. In the context of Hong Kong law, we respectfully disagree with the approach of O’Regan J in Dawood, Shalabi and Thomas v Minister of Home Affairs, supra, cited and applied by G Lam J at [88] and [89] of the judgment.  Such approach is not consistent with the holistic approach as espoused in Hong Kong Television Network Ltd v Chief Executive in Council, supra and the English and Strasbourg jurisprudence discussed above.

76.Under the Management Scheme, only materials which are for the promotion of public awareness of matters of general and significant community interests of non‑commercial nature could be permitted. Further under [7(b)(iv)], no publicity materials of an obscene or objectionable nature shall be displayed.  These criteria are consistent with the objects and purposes of the statutory power as discussed above. 

77.Mr Harris submitted that these content-based criteria are too vague and general.

78.G Lam J did not find this question to have arisen in the present case[28] presumably because there had not been any applications for permission in respect of display of banners for the FLG demonstrations. 

79.Mr Yu submitted that these formulations have sufficiently clear core meanings which could provide guidance for assessing if a particular banner or poster can satisfy the tests.  Mr Harris did not accept this to be the case for the expression “objectionable nature”.

80.We have explained above the need for general descriptions in the context of these matters due to the wide range of circumstances to which the power can be exercised.  We agree with Mr Yu that the core meanings of these formulations are sufficiently clear.  As regards the expression “objectionable nature”, it must be understood in the context of the objects and purposes of the statutory power.  We agree with Mr Yu that the expression is similar to the standards of “offensiveness” and “public controversy” in the English case of R (Core Issues Trust) v Transport for London [2014] PTSR 785.  Lord Dyson MR held in that case that these concepts are sufficiently precise to meet the requirement of legal certainty[29]. 

81.On the whole, we are of the view that there is sufficient guidance in the publicly available materials including the Management Scheme to guide the courts in resolving a dispute if an application for permission should be granted.  We respectfully disagree with the judgment of G Lam J on the “prescribed by law” challenge. 

Proportionality

82.As mentioned earlier, in the CA Judgment, leave was granted to the applicants to apply for judicial review on two grounds.  In respect of proportionality, the leave was confined to a challenge based on the content-screening.  At that stage, the Court was not satisfied that all relevant evidence on applications in respect of non-Management Scheme cases[30]. 

83.After the first appeal hearings, the applicants re-re-amended their Forms 86 to add their new proportionality challenge which are essentially the same.  Using the paragraphs in the Form 86 in HCAL 73/2013 as references for the purpose of this discussion, the challenge as pleaded in [48] to [51] is directed towards the conferment of an unfettered discretion to the Authority to grant or refuse permissions to a demonstrator to display a banner.  It is contended that the disproportionality of such general discretion cannot be remedied by policy guidelines.  It is further contended that such general restriction impairs the essence of the rights of free speech and freedom of assembly.  Paragraphs 52 to 67 set out the case of the applicants on the proportionality analysis by reference to the test in Hysan Development Co Ltd v Town Planning Board FACV 21 and 22/2015.  As evident from paragraphs 53, 55, 56, 64 and 65 the challenge was mounted on the premise that under the statute all demonstrators have to obtain prior approval for their banners and there is no statutory indicator as to how approval is to be granted or refused.

84.In light of that challenge, the Director filed further evidence on 4 August 2017: Affirmation of Cheung Ka Lok providing further information on the designated spots under the Management Scheme, utilization rates of the designated spots, the use and allocation of designated spots and review of the Management Scheme from time to time; Affirmation of Chan Chung Chi explaining how applications under Section 104A would be processed, including those falling outside the scope of the Management Scheme.

85.In the absence of actual applications for approval by FLG demonstrators, G Lam J did not find the evidence sufficient to enable the court to address the proportionality issue. 

86.By two respondent’s notices, the applicants contended that the court should hold that Section 104A(1)(b) fails to meet the proportionality requirement in these appeals.  The grounds set out in the Respondent’s Notices proceeded on the premise that there is no limitation under Section 104A on the restriction of the rights of demonstration and freedom of expression and it provides no guidance on what the decision maker will take into account in deciding whether or not to grant approval.  Proceeding from that premise, it is alleged that the decision maker is at liberty to impose conditions, including content-screening, on applications. 

87.As we have seen, these premises of the applicants are ill-founded.  First, section 104A(1)(b) does not apply to most demonstrations, be it mobile or static.  As held previously in the CA Judgment, it only applies to display of banners with a degree of permanence and habitual regularity.  Thus, permission under that section is only required if a demonstrator occupies a spot on some permanent and habitually regular basis.

88.Second, as explained above, the discretion cannot be exercised in an arbitrary manner.  Even in the context of a non-Management Scheme application, the exercise of the residual discretion must still be guided by statutory purpose of the power and the applicable criteria set out in the Management Scheme.  In terms of content-based screening, the criteria in the Management Scheme should be adhered to.  In this connection, for the reasons already given, we do not accept that the policy guideline in the Management Scheme cannot be taken into account. 

89.We reject the contention in the Respondents’ Notices that the decision maker is at liberty to impose conditions, including content-screening, on applications.

90.As highlighted by Mr Yu in his written submissions, notwithstanding the observations of this Court in the CA Judgment at [87] Mr Harris had not formulated any challenge in the Re-re-Amended Forms 86 in respect of the criteria.  Thus, the Director did not file evidence to justify the criteria on content-based screening after the re-re-amendments of the Forms 86.

91.In his written submissions, Mr Harris advanced an argument which is not in the Forms 86 and the Respondents’ Notice.  He submitted[31] that the avoidance of environmental nuisance is not a legitimate purpose for the restriction of the rights under arts 16 and 17 of the Hong Kong Bill of Rights.  The relevant parts of those articles read:

(a) Article 16,

“ (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.”

(b) Article 17:

“ 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.”

92.The short answer to this submission is that the objectives of the statutory power are not restricted to avoidance of environmental nuisance, but also include controlling to promote the orderly and proper use of public space.  There is no doubt that the latter objective is within the scope of public order (ordre public), see the discussion of this expression in Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at [69] to [72].  Actually, this concept could embrace aesthetic considerations: see the quotation from Kiss on “Permissible Limitations on Rights” at [71]. 

93.Another point raised by Mr Harris in his submission is the lack of resort to Section 104A in respect of FLG demonstrations prior to 2013.  Counsel therefore submitted that the measure is unnecessary.  He further referred to the availability of redress under the Summary Offences Ordinance Cap 228 and the offence of public nuisance to tackle problems arising from banners causing obstruction of highway.

94.In this context, Mr Harris disavowed any challenge in respect of unattended banners.  However, as previously submitted by Mr Yu, freedom of expression is inevitably engaged in relation to the display of banners, bills or posters[32].  That would include unattended items.  A scheme of control over the display of such items at public space necessarily encroach upon freedom of expression. 

95.Further, as explained previously by this Court, such control is necessary and it is needed irrespective of the purposes of the display, including a display in association with a demonstration at a spot with a degree of permanence and habitual regularity[33].   

96.In respect of the argument based on the Summary Offences Ordinance Cap 228 and the offence of public nuisance, as discussed above the statutory objectives are not confined to road safety or road obstruction.  Further, as observed at [65] in the CA Judgment, there could be overlapping layers of restraints.  In the present context, there is no power for removal of offending items under the SOO or the common law offence as that provided for under Section 104C.   

97.Mr Harris relied on Tabernacle v The Secretary for State for Defence, supra to advance a submission that the restriction under Section 104A does not strike a reasonable balance between public interest and the impact on the individual demonstrator.  As mentioned earlier at [66] above, the situation in Tabernacle was quite different and Mr Harris could not explain to us if there was any symbolic significance for FLG demonstrations in terms of the dissemination of their messages to hold the same at a particular spot with a degree of permanence and habitual regularity.

98.This Court had already covered the other points advanced by Mr Harris on proportionality in Sections F and I in the CA Judgment. 

99.As observed earlier, there is no effective proportionality challenge by reference to the content-based screening criteria set out in the Management Scheme (which we held to apply equally for the exercise of residual discretion).  Based on the limited materials available, we are satisfied that the criteria do not entail political censorship.  In addition to the evidence that the Authority would not screen out applications simply because the applicant is a FLG member, the court can take judicial notice that political messages have frequently been disseminated by LegCo and District Council members using placards or posters displayed under the Management Scheme.

100.For these reasons, we would also reject the proportionality challenge.

Disposition

101.We allow the appeal, set aside the judgment of G Lam J and dismiss the applications for judicial review.  We also make a cost order nisi that the applicants shall pay the costs of the respondents in these appeals and the proceedings below, with certificate for three counsel. The applicants’ own costs be taxed in accordance with Legal Aid Regulations.

Mr Paul Harris SC and Ms Linda Wong, instructed by Ho, Tse, Wai & Partners, assigned by the Director of Legal Aid, for the applicants in both cases

Mr Benjamin Yu SC, Mr Johnny Mok SC and Mr Johnny Ma, instructed by the Department of Justice, for the respondents in both cases and the interested party in CACV 489/2018