Read the full judgment text of CACV 541, 542 & 583/2019 on BabelCite. This Court of Appeal judgment was delivered on 9 April 2020 before Poon CJHC, Lam VP, Au JA.
Constitutional law – Emergency Regulations Ordinance (Cap 241) – Prohibition on Face Covering Regulation (Cap 241K) – judicial review – constitutionality – delegation of legislative power – Basic Law – Hong Kong Bill of Rights – proportionality – freedom of expression – freedom of assembly – right to privacy – right to liberty – police powers – negative vetting – theme of continuity – common law principle of delegation. The Chief Executive in Council invoked section 2 of the Emergency Regulations Ordinance (Cap 241) on 4 October 2019 to enact the Prohibition on Face Covering Regulation (Cap 241K) (PFCR) in response to escalating protests, violence, vandalism and arsons that began in June 2019 over the Fugitive Offenders Bill. The PFCR prohibits the use of facial covering likely to prevent identification at unlawful assemblies, unauthorised assemblies, notified public meetings and notified public processions, and empowers police officers to require removal of facial covering in any public place. The applicants challenged the PFCR on the grounds that the ERO is unconstitutional (Ground 1), was impliedly repealed by section 3(2) of the Hong Kong Bill of Rights Ordinance or Article 4 of the ICCPR (Ground 2), falls foul of the 'prescribed by law' requirement (Ground 3); and that the PFCR is ultra vires by reason of the principle of legality (Ground 4) and amounts to disproportionate infringement of fundamental rights (Grounds 5A and 5B). The Court of Appeal held that the ERO insofar as it empowers the CEIC to make emergency regulations on any occasion of public danger is constitutional under the theme of continuity and the common law principle of delegation – the LegCo may delegate to the CEIC power to make subordinate legislation, and the ERO, as upheld in R v To Lam Sin (1952) 36 HKLR 1 and R v Li Bun [1957] HKLR 89, remains valid after the enactment of the Basic Law. On the proportionality analysis, section 3(1)(a) of the PFCR (unlawful assembly) and section 3(1)(b) (unauthorised assembly) are constitutional and proportionate as participants commit criminal offences by taking part. Sections 3(1)(c) and (d) of the PFCR, relating to notified public meetings and processions which may be entirely lawful and peaceful, are unconstitutional and disproportionate. Section 5 of the PFCR conferring broad police powers to stop and remove facial covering in any public place is also unconstitutional and disproportionate, given the remarkable width of the power and absence of reasonable limits. The ERO was not impliedly repealed, does not fall foul of the 'prescribed by law' requirement, and the PFCR is not ultra vires the ERO under the principle of legality. The respondents' appeal under Ground 1 was allowed, the appeal under Ground 5A was partially allowed, and the appeal under Ground 5B was dismissed; the cross-appeals were dismissed. Sections 3(1)(c), (d) and section 5 of the PFCR are declared unconstitutional and of no effect.
Legal issues: Constitutionality of the ERO as an impermissible delegation of general legislative power · Proportionality of section 3(1)(b) of the PFCR (unauthorised assembly) · Proportionality of section 3(1)(c) of the PFCR (public meeting) · Proportionality of section 3(1)(d) of the PFCR (public procession) · Proportionality of section 5 of the PFCR (police powers re facial covering) · Whether the ERO was impliedly repealed (Ground 2) · Whether the ERO falls foul of the 'prescribed by law' requirement (Ground 3) · Whether the PFCR is ultra vires under the principle of legality (Ground 4)
Outcome: The respondents' appeal under Ground 1 was allowed and the ERO was held to be constitutional. The appeal under Ground 5A was partially allowed: section 3(1)(b) of the PFCR was upheld as constitutional, but sections 3(1)(c) and (d) were held unconstitutional. The appeal under Ground 5B was dismissed: section 5 of the PFCR was held unconstitutional. The KWH cross-appeal (CACV 583/2019) and respondent's notice, and the LKH cross-appeal (CACV 541/2019) were dismissed.
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