Leung Kwok Hung v. Secretary for Justice
Read the full judgment text of CACV 541/2019 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 The applicants challenged the PFCR on the grounds that the ERO is unconstitutional (Ground 1), was impliedly repealed by section 3(2) of the Hong Kong Bill of Rights Ordinance or Article 4 of the ICCPR (Ground 2), falls foul of the 'prescribed by law' requirement (Ground 3);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.
Cites 27 cases
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CACV 541, 542 & 583/2019 [2020] HKCA 192 CACV 541/2019 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 541 OF 2019 (ON APPEAL FROM HCAL 2949/2019) _______________
_______________ CACV 542/2019 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 542 OF 2019 (ON APPEAL FROM HCAL 2945/2019) _______________
CACV 583/2019 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 583 OF 2019 (ON APPEAL FROM HCAL 2945/2019) _______________
_______________ J U D G M E N T _______________
The Court: 1.Since June 2019, Hong Kong has experienced serious social unrests and public disorders marked by protests, escalating violence, vandalisms and arsons across the territory. It is a dire situation that has not been seen in the last 50 years. 2.The increasing violence has resulted in widespread property damage, assaults on persons, serious damage and interruptions to major public transport facilities and highways. The violence and damage are mostly caused by protestors wearing masks and dressed in black outfits. At the same time, it is a common phenomenon that many other protestors participating in public assemblies and processions who are not involved in violence are also wearing masks and dressed in black outfits. 3.To tackle the dire situation, on 4 October 2019, the Chief Executive‑in‑Council (“the CEIC”), in the exercise of the power under section 2 of the Emergency Regulations Ordinance (Cap 241) (“the ERO”), announced the enactment of the Prohibition on Face Covering Regulation (Cap 241K) (“the PFCR”) on the basis that there was an occasion of “public danger” in Hong Kong. 4.In gist, the PFCR makes it an offence for anyone without reasonable excuse wearing a mask that will prevent identification at public assemblies or processions, and empowers the police to demand any person to remove the mask and, if that person refuses to do so, to remove it with force if necessary. The PFCR took effect at midnight on 5 October 2019. 5.Soon thereafter, the applicants under HCAL 2945/2019 (collectively, “KWH”) and the applicant under HCAL 2949/2019 (“LKH”) brought these judicial review proceedings to challenge the PFCR on the basis that it is unlawful and invalid as (a) the ERO is itself (i) unconstitutional (Ground 1); (ii) was impliedly repealed (Ground 2); (iii) falls foul of the “prescribed by law” requirement (Ground 3); and (b) in any event, the PFCR (i) is ultra vires by reason of the principle of legality (Ground 4); and (ii) amounts to disproportionate infringement on the protected fundamental rights to freedom of expression, assembly, movement and the right to privacy (Ground 5A on section 3 and Ground 5B on section 5). 6.The rolled-up hearing of these judicial reviews were heard before G Lam and Chow JJ (collectively, “the Judges”) on 31 October and 1 November 2019. By the judgment (“the Judgment”) and decision (“the Decision”) handed down respectively on 18 and 22 November 2019, the Judges allowed the applicants’ judicial reviews under Grounds 1, 5A and 5B, and declared that:
7.By way of the Notices of Appeals filed on 25 November 2019[1], the respondents appeal against the Judgment and the Decision. 8.In response, KWH filed a Notice of Cross Appeal (“KWH‑NoCA”) under CACV 583/2019 seeking to cross-appeal against the Judges’ decision of rejecting Grounds 2 and 3 of their judicial review. They also filed a Respondent’s Notice (“KWH-RN”) in CACV 542/2019 seeking to affirm the Judges’ decision on additional grounds, in particular on Ground 4. 9.On 16 December 2019, LKH also filed a Notice of Cross Appeal and Respondent’s Notice (“LKH-NoCA”) under CACV 541/2019 against the Judges’ decision seeking to challenge:
10.On 17 December 2019, this Court directed that [5] - [8] of LKH‑NoCA would not be entertained in these appeals. In other words, LKH is only permitted to make submissions in relation to Ground 3 and Ground 5B as set out in the LKH-NoCA. 11.The recent months of protests and social unrest leading to the unprecedented scenes of escalating violence and danger on the streets of Hong Kong were triggered in February 2019 when the Government introduced the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill”) to the Legislative Council (“the LegCo”).[2] The Bill was very controversial. Many members of the public, different organisations and professional bodies had expressed grave concerns about it. Many different public assemblies and processions had since been held to urge the Government to amend, delay or withdraw the Bill. 12.After proposing further amendments to the Bill, the Government indicated that it would seek to have the Bill debated and passed by the LegCo before the end of the LegCo session in July 2019. This only led to even more massive protests and public processions. 13.At [2] ‑ [4] of the Judgment, the Judges pointed out that:
14.Most pertinently, the uncontested evidence shows that the outbreaks of violence are escalated by the more radical and violent protestors employing the “black-bloc” tactics[3] to avoid identification and arrests, who are to a certain extent supported or at least condoned (and hence emboldended) by protestors who participate in initially peaceful public assemblies or processions. Such tactics is facilitated in light of the following[4]:
15.Large scale incidents of breach of peace in Hong Kong ensued. In blatant defiance of the law, the more radical and violent protestors have perpetrated widespread criminal conducts ranging from unlawful assembly to serious property damage, assault on persons, arsons and use of lethal weapons. 16.The unchallenged evidence shows that from 9 June to 4 October 2019, violent and radical protestors had[7]:
17.The evidence therefore has shown that by the beginning of October 2019, the above acts of radical and violent protesters had seriously breached public peace, and posed a grave and genuine danger to the police and other members of the public. Normal functions of the Hong Kong community had been severely disrupted. More importantly, there were signs of and even declared intent by violent protestors to procure further escalation in the degree of violence and vandalism in unlawful assemblies which might as a result turn into riots, pushing Hong Kong to a most perilous situation[8]. 18.As acknowledged by the Judges[9], it was under this “dire situation” of Hong Kong, that the CEIC on 4 October 2019 enacted the PFCR under the ERO. 19.In announcing the reasons and basis for enacting of the PFCR at the press conference on 4 October 2019, the Chief Executive (“the CE”) emphasized that the decision to invoke the ERO as Hong Kong was in “an occasion of serious danger” and was a necessary one in the public interest[10]. In particular:
20.The ERO is a short piece of legislation with only three substantive sections. They provide as follows:
21.The history of the enactment of the ERO and its use since its enactment in 1922 has been summarized at [15] ‑ [20] of the Judgment. We will elaborate on it when we deal with the submissions pertaining to the ERO below. 22.The PFCR is also a short piece of regulation with six sections. The substantive provisions relevant for the present purposes are as follows[13]. 23.Section 3 of the PFCR imposes a prohibition on the use of and makes it an offence to use facial covering in certain circumstances by providing:
24.Section 3 therefore prohibits the use of facial covering likely to prevent identification in four specific situations:
25.In short, the prohibition in section 3(1) applies to persons at unlawful assemblies, unauthorised assemblies, public meetings notified and not prohibited, and public processions notified and not objected to, and does not prima facie apply to public meetings or processions that do not need to be notified, although such meetings or processions may turn into unauthorised assemblies or unlawful assemblies. 26.Section 4 of the PFCR sets out a defence to the offence under section 3(2) of lawful authority or reasonable excuse. The accused thus bears the evidential burden to raise the defence but it is the prosecution’s legal burden to disprove the defence. The scope of reasonable excuse is not exhaustively defined, but three grounds are specifically included, namely, professional or employment reasons, religious reasons and pre‑existing medical or health reasons. 27.Section 5 concerns police powers in relation to facial covering:
28.“Public place” (公眾地方) has the meaning given by section 2(1) of the POO:
D1. Grounds of judicial review 29.The Judges at [11] of the Judgment summarized the grounds of judicial review that were allowed to be advanced by KWH and LKH and considered by them at the rolled-up hearing. There is no suggestion that the summary is incorrect. We will respectfully adopt them for the purpose of this judgment:
30.When considering these grounds, it is important to note that [23] :
31.By their comprehensive and detailed Judgment, the Judges allowed the judicial reviews on Grounds 1, 5A and 5B, but rejected all the other grounds. We will look at their reasons in greater details later. For the present purposes, those reasons can be summarised as follows. 32.In allowing Ground 1, the Judges found essentially that:
33.In rejecting Ground 2, the Judges explained at [98] ‑ [109] of the Judgment that:
34.In relation to Ground 3, the Judges rejected the argument that the ERO falls foul of the prescribed by law requirement due to the wide scope of power and the undefined meaning of “public danger”. They concluded that the ERO by itself does not and does not seek to limit any fundamental rights. In the premises, the requirement of legal certainty should be applied to the actual regulations that are enacted under the ERO but not generally to the enabling ERO. See [110] ‑ [120] of the Judgment. 35.Ground 4 seeks to impugn the PFCR itself. Under it, the applicants argued that, properly construed in accordance with the principle of legality, the ERO does not, expressly or by necessary implication, empower the CEIC to make regulations that impose restrictions on fundamental rights of the kind and to the extent found in the PFCR. The Judges found that this ground is inconsistent with Ground 1. Since they had allowed Ground 1, they therefore did not find it necessary to deal with this ground. See [121] ‑ [125] of the Judgment. 36.In allowing Ground 5A, in adopting the 4‑step proportionality test laid down in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at [134] - [135][26]:
37.In allowing Ground 5B:
38.For all the above reasons, after hearing further submissions on the relief that should be made, the Judges by the Decision, allowed the judicial reviews and declared, among others, that:
39.They further ordered that the above declarations be suspended so as to postpone its coming into operation until the end of 29 November 2019 or further order of the court. Given there is no further order later, the declarations eventually took effect on 30 November 2019. 40.The main appeals are brought by the respondents challenging the Judges’ rulings in relation to Grounds 1, 5A and 5B. It is therefore convenient for us to consider these grounds first. E1. Jurisdiction to examine constitutionality 41.Ground 1 involves the court’s scrutiny of the constitutionality of the ERO, a pre‑1 July 1997 law adopted as laws of the HKSAR. The fact that the court has jurisdiction to do so is and should not be controversial. However, given its immense importance, we consider it appropriate to elaborate the point against the relevant framework of the BL as follows. 42.Under BL8, the laws previously in force in Hong Kong, including ordinances, shall be maintained except for any that contravenes the BL, and subject to any amendment by the legislature of the HKSAR. BL18 further provides that the laws in force in the HKSAR shall be the BL, and laws previously in force in Hong Kong as provided for in BL8 and, the laws enacted by the legislature of the Region. BL8 and BL18 are supplemented by BL160(1), which provides that:
43.In its Decision dated 23 February 1997 (“the NPCSC’s Decision”), the NPCSC pursuant to BL160 declared that those laws previously in force in Hong Kong listed in Appendixes I and II were in contravention of the BL and were not adopted as the laws of the HKSAR. Other than those laws, all laws previously in force were adopted as laws of the HKSAR. Paragraph 6 of the NPCSC’s Decision repeats the last sentence in BL160(1) with respect to the laws previously in force adopted as laws of Hong Kong. 44.Both BL160 and the NPCSC’s Decision ensure the preeminence of the BL over all pre‑1 July 1997 laws, even after being adopted as laws of the HKSAR upon its establishment. 45.The ERO was enacted in February 1922. It was an ordinance previously in force in Hong Kong prior to 1 July 1997. As it was not included in either Appendix I or II to the Decision, it has been adopted as laws of the HKSAR. It is however not the respondents’ case that the NPCSC’s Decision is final or conclusive on the constitutionality of the ERO. The respondents accept that the constitutionality of the ERO is still subject to judicial scrutiny. The respondents’ position must be correct. For the law on this point is well settled. 46.In HKSAR v Hung Chan Wa & Another (2006) 9 HKCFAR 614, the Court of Final Appeal refused to make a “prospective overruling” in respect of a certain provision which was previously in force but was, after judicial scrutiny on its constitutionality, remedially interpreted to make it constitutionally compliant. Li CJ at [9] said:
47.Li CJ then went on to hold at [11] - [15] that BL160 does not apply to judicial procedure and that the reference of “shall be amended or cease to have force” in BL160(1) connotes a legislative procedure. At [11], Li CJ specifically referred to a judicial declaration of contravention of the BL in relation to a pre‑1 July 1997 law. Evidently, the judicial power to make such a determination derives from BL19(1) and BL80: see Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, per Li CJ at p25G-J. 48.Another ready example of the court scrutinizing the constitutionality of a pre‑1 July 1997 law is W v Registrar of Marriage (2013) 16 HKCFAR 112. There, the Court of Final Appeal, by majority, held that sections 20(1)(d) and 40 of the Marriage Ordinance, underpinned by the common law criteria in Corbett v Corbett (otherwise Ashley) [1971] P 83, for determining who was a “woman” for the purpose of marriage, were unconstitutional because, having regard to the contemporaneous jurisprudence, they failed to give proper effect to the constitutional right to marry under BL37 and article 19(2) of the BOR and impaired the very essence of the right to marry. 49.As BL160(1) and the NPCSC’s Decision both envisage, there may be laws which were previously in force and adopted as laws of the HKSAR but are later found to be in contravention of the BL. Under the framework of the BL, the constitutionality of such a law can be dealt with either by legislative procedure or judicial process when a challenge is mounted in court whereupon the court has the jurisdiction and indeed the constitutional duty to deal with the constitutionality issue and, if found to be the case, to declare such a law to be in contravention of the BL. 50.In so doing, the court does not act contrary to BL160 or in any way diminish the authority of the NPCSC’s Decision. As said, both BL160 and the NPCSC’s Decision maintain the preeminence of the BL over all pre‑1 July 1997 laws, even after adoption as laws of the HKSAR upon its establishment. When law develops, as it must, to cater for the changing needs of the society, it is not inconceivable that a pre‑1 July 1997 law which was formerly constitutional compliant might be found in contravention of the BL later when examined against the context of the current societal circumstances and by reference to the contemporaneous jurisprudence. If and when it happens, the court will declare that law, which is no longer constitutional compliant, to be in contravention of the BL, thereby safeguarding the preeminence of the BL as a living constitutional instrument over all pre‑1 July 1997 laws even after adoption as laws of the HKSAR. This is entirely consistent with the purpose of BL160 and the NPCSC’s Decision. E2. Core issue and the parties’ main submissions 51.For Ground 1, the core issue is whether the emergency regulations made under the ERO are subordinate legislation or primary legislation. If the former, it is acceptable. If the latter, it contravenes the BL, rendering the ERO an unconstitutional delegation of general legislative powers by the LegCo to the CEIC. 52.Mr Yu SC, together with Mr Suen SC, Mr Ma and Mr Lui, for the respondents, complained that in reaching the ruling that the ERO is unconstitutional, the Judges disregarded the theme of continuity which remains despite the change in constitutional order. He submitted that central to the Judges’ reasoning is the erroneous finding that because the constitutional order in Hong Kong has changed, the functions and powers of the LegCo and the Executive have changed so fundamentally under the BL framework that the ERO should be held to be inconsistent with the BL. 53.Further and irrespective of the theme of continuity, Mr Yu argued that the Judges erred in its construction and application of the constitutional order under the BL including BL56(2) which recognizes and reinforces the power of the LegCo to delegate (a fortiori in emergency regulations). He complained that the Judges failed to appreciate the true nature of emergency regulations and the ground of pubic danger, and to examine the same in its analysis and erroneously treated the ERO merely as a piece of legislation authorizing the making of subordinate legislation, having no regard to the true nature of emergency regulations under the ERO. He contended that the Judges erred in ruling that emergency regulations made by the CEIC on the public danger ground are not subordinate legislation referred to in BL56(2). 54.Mr Yu submitted that the real question raised by Ground 1 is whether the ERO contravenes the BL. He argued that there is no such contravention and the Judges erroneously adopted a narrow or rigid approach in construing the BL, and therefore failed to appreciate that the delegation of powers to the CEIC to make subordinate legislation on occasion of public danger is reasonably required and implied under the BL, quite apart from and irrespective of express provisions such as BL56(2) and 62(5). 55.Ms Li SC, with Mr Chan SC, Mr Deng, Mr Tam, Mr Yeung and Ms Wong, for KWH, accepted that the CE has the constitutional power to take emergency measures which can be provided for by suitable legislation catering for the limited circumstances in which derogation from the HKBORO/ICCPR rights are permitted except in the case of non‑derogable rights and/or other circumstances of emergency where no such derogation is permitted and the HKBORO/ICCPR rights as applied to the HKSAR through BL39 must not be infringed. 56.On the theme of continuity, Ms Li emphasized that the Judges did not hold the concept of emergency regulations as no longer constitutional after 1997. The problem is the impermissible and general terms on which this conferment of legislative power was done in the ERO. She argued that the theme of continuity does not operate as a presumption of constitutionality for any particular piece of pre-1997 legislation. Continuity depends on subject matter. The overriding principle is that nothing shall contravene the BL and the principle of continuity must be subject to this overriding principle. There exists core powers and functions that are exclusively reserved to the LegCo as prescribed by the BL which may not be conferred to the CEIC in the manner as the ERO has. She also argued that BL160 does not assist the respondents. 57.Next, Ms Li argued that vague notions of emergency cannot impugn the constitutional scheme. The ERO is exceptionally wide even as an emergency power. The legislative power conferred by the ERO is on the whole general legislative power in substance for the reasons given by the Judges. 58.In our view, the analysis of the constitutionality of the ERO is informed by the theme of continuity. 59.The theme of continuity is an essential and indeed indispensable policy underlying the BL. In HKSAR v Ma Wai Kwan David & Others [1997] HKLRD 761, Chan CJHC (as he then was) at p774E-F emphasized its utmost importance in these terms:
60.Continuity of course does not mean stagnation of the systems then in place on 1 July 1997: see Chan Yu Nam v Secretary for Justice [2012] 3 HKC 38, per Stock VP (as he then was) at [44]. The systems can further develop to suit the contemporaneous needs and circumstances of our society as Hong Kong progresses as long as they operate within the confines of the BL. 61.That said, Ms Li is correct in submitting that the theme of continuity is not a presumption of interpretation in favour of constitutional compliance when a pre‑1 July 1997 law is challenged. That is not Mr Yu’s argument any way. The significance of the theme for interpreting the BL in this regard is this. 62.As Lord Hoffmann observed in Matadeen v Minister of Education and Science [1999] 1 AC 98 at p108, cited with approval by Stock VP in Chan Yu Nam, at [32]:
Thus, as one of the main policies underlying the BL, the theme of continuity may, depending on the circumstances, relevantly and powerfully inform the interpretation of the provisions of the BL in a challenge against the constitutionality a pre‑1 July 1997 law which has been adopted as part of the laws of the HKSAR after 1 July 1997, such as the ERO. E3.1 History of the ERO in the colonial era 63.In the colonial years, the ERO had been invoked on numerous occasions to cover a host of varying emergencies and public danger. There was a debate in the colonial Legislative Council (“the Pre-97 LegCo”) in 1936 to abrogate one of the emergency regulations made under the ERO. It later survived two challenges before the Full Court in the 1950s. (a) Invocations 64.In The Use and Abuse of Emergency Powers by the Hong Kong Government (1996) HKLJ 47, Norman Miners at pp51 - 55 briefly described the ERO’s legislative history and its invocations since enactment. According to this article, the ERO was not modelled on the then English Emergency Powers Act 1920. Unlike other laws enacted by the Pre-97 LegCo, the emergency regulations made under the ERO were not required to be submitted to London, which meant that they were not subject to the check or censure from London. 65.Over the years, the then Governor in Council (“the GIC”) had made various emergency regulations under the ERO for, inter alia:
66.In June 1995, all emergency regulations which were still in force were revoked by the GIC. (b) A failed attempt to abrogate the regulations made under the ERO 67.On 26 August 1936, the Pre‑1997 LegCo debated a motion moved by a member seeking to abrogate an emergency regulation made under the ERO to provide censorship of the Chinese press[33]. The regulation had been made for some 11 years and had not been repealed by the GIC. One of the arguments advanced in support of the motion was that there could not be an existence of emergency or public danger as envisaged under the ERO for so many years. The Government’s position was that the public danger still existed and would continue until a definitely stable government existed in China and in particular, the danger must be admitted to remain while civil war in China was threatening in one of the neighbouring provinces. In the end, the motion was defeated by a majority of 14 to 2. (c) Two challenges in the court 68.The ERO and the emergency regulations made thereunder were challenged in the court in R v To Lam Sin (1952) 36 HKLR 1 and R v Li Bun & Others [1957] HKLR 89. 69.In To Lam Sin, the accused was convicted of being in possession of hand grenades, contrary to regulation 116A of the Emergency (Principal) Regulations made under the ERO. The offence was punishable by death. One of the grounds that the accused sought to quash the conviction was that the ERO was ultra vires the Pre‑97 LegCo. While counsel for the accused conceded that the Pre‑97 LegCo had the power to delegate, he contended that in the case of the ERO, the delegation to the Governor went far beyond the ordinary power of making by‑laws. Counsel argued that it had by the delegation effaced itself, citing Ping Shek and another v The Canossian Institute (1949) 33 HKLR 66 where the Chief Justice at p71 referred to the effacement test. 70.The Full Court (Howe CJ, Gould and Scholes JJ, Howe CJ giving the judgment) apparently did not prefer the effacement test, noting at p12 its limitations:
71.Howe CJ then went on to state that according to the modern judicial view of the colonial legislature as seen from some recent authorities, a colonial legislature was supreme within their own limits and within the powers conferred by the instruments creating it. Based on that modern view, Howe CJ at p14 said:
72.Returning to the effacement test, Howe CJ at p14 held that it would not hold that the delegation of the powers was ultra vires because:
73.In Li Bun, an appeal by way of case stated was brought against convictions for attempting to export motor vehicles without a licence contrary to the Importation and Exportation Ordinance, as amended by the Emergency (Importation and Exportation) (Amendment) Regulations 1953 and 1954 made under the ERO. Two questions of law were raised. The first was whether the ERO was ultra vires the Governor. The second was whether the Emergency (Importation and Exportation) (Amendment) Regulations 1953 and 1954 were ultra vires the ERO. 74.The Full Court (Hogan CJ, Gould and Reece JJ) treated the first question as involving the decision if the ERO was ultra vires the Pre‑97 LegCo. Hogan CJ acknowledged the modern view of a colonial legislature as mentioned in To Lam Sin but at p96 observed that the supremacy of a colonial legislature, even within its own limits, could not be taken to be altogether unqualified. 75.Hogan CJ referred to the effacement test and noted the ERO survived the test in To Lam Sin. He agreed with To Lam Sin but would not place the same reliance on section 14 of the Interpretation Ordinance, as ensuring the control of the legislature over regulations made under the ERO since that section itself was liable to be repealed by the GIC under section 2(3) of the ERO. 76.Hogan CJ next derived from R v Burah 3 AC 889 and In re The Initiative and Referendum Act (1919) AC 935 the proposition that a colonial legislature could not appoint a coordinate or alternative legislative body. Applying it to the ERO, he said at pp101 - 104:
Hogan CJ therefore agreed that the Full Court in To Lam Sin was right in concluding that the ERO was not ultra vires. 77.Hogan CJ then examined the second question if the Emergency (Importation & Exportation) (Amendment) Regulations were ultra vires the ERO. For the reasons that he set out, he held that they were not. E3.2 Important points to draw from the history 78.From the above history a number of important points arise. They concern (a) the then constitutional arrangements for legislative powers; (b) the Pre-97 LegCo’s role over the emergency regulations made under the ERO; (c) the judicial reasoning in upholding the validity of the ERO; and (d) the varying circumstances of emergency and public danger in which the ERO was invoked with one common feature. They are all highly relevant to the analysis at hand. (a) Constitutional arrangements for general legislative powers 79.We derive from To Lam Sin and Li Bun the following propositions concerning the constitutional arrangements for the exercise of general legislative powers in the colonial era. 80.First, the Pre-97 LegCo was vested with general legislative powers exclusively. The Governor did not have such powers. 81.Article VII of the Letters Patent appeared to have designated the Governor as the law making authority by providing that:
However, the correct understanding of Article VII was that it conferred the general legislative powers on the Pre-97 LegCo. Thus in Li Bun, Hogan CJ at p92 observed that the powers of the Pre-97 LegCo to make laws have their source in Article VII. (Indeed, had the Governor been vested with general legislative powers under Article VII, the question if the ERO was an impermissible delegation of legislative powers by the LegCo to the GIC would not have arisen at all.) Simply put, pursuant to the constitutional arrangement in the Letters Patent on legislative powers, however wide and extensive the powers the Governor otherwise enjoyed under the Letters Patent, and despite the fact the colonial government was very much executive-led, he did not have general legislative powers as the Pre-97 LegCo did. The Governor only had limited legislative power to make subordinate legislation as delegated by the Pre-97 LegCo: see the third proposition below. 82.Second, the Pre-97 LegCo as a colonial legislature was subject to the Letters Patent and other constitutional requirements which established it as the legislature of Hong Kong. Within its constitutional confines, the Pre-97 LegCo was autonomous or “supreme” in exercising is powers and performing its functions and had the authority as plenary and as ample as the Imperial Parliament in the plenitude of its powers possessed and could bestow. 83.Third, under the common law, the Pre-97 LegCo must not act in a manner which effectively abdicated its exclusive general legislative powers, whether completely or partially, by effacement; or divesting itself of such exclusive powers, again whether completely or partially, by creating a co-ordinate legislative authority of a concurrent or alternative character. Subject to this restriction, it could delegate its legislative powers to the Governor to make subordinate legislation. The corollary is that the Governor only had limited legislative powers as properly delegated to him by the Pre-97 LegCo to make subordinate legislation. 84.We pause to add that as a matter of fact, the Pre-97 LegCo had by numerous enabling provisions in various principal ordinances delegated to the GIC and other executive authorities to make regulations in respect of a wide range of matters[34] and even to the Chief Justice to make rules for practice and procedure of court and tribunal[35]. 85.Fourth, an ordinance by which the Pre-97 LegCo delegated to the GIC and other branches of the Government the power to make regulations was subject to judicial scrutiny to see if it was ultra vires the Pre-97 LegCo. The regulations made, like those made under the ERO, were likewise subject to judicial scrutiny to see if it was ultra vires the enabling ordinance. 86.In sum, under the pre-1 July 1997 constitutional arrangement, the Pre-97 LegCo was vested with general legislative powers exclusively by the Letters Patent. The Governor was not. The Pre-97 LegCo was bound by the Letters Patent and other constitutional requirements in exercising its general legislative powers. Under the common law, subject to the restriction that it could not abdicate its general legislative powers, the Pre‑97 LegCo could delegate to the Governor limited legislative power to make subordinate legislation by virtue of a specific enabling ordinance. That was the extent of the Governor’s legislative power. When called upon, the courts would examine the enabling ordinance and the regulations made thereunder to see if they were ultra vires the Pre-97 LegCo or the enabling ordinance, as the case might be. (b) Pre-97 LegCo’s control over emergency regulations 87.Although the attempt to abrogate the emergency regulations in 1936 failed, the whole process of involving a member putting forward of the motion to abrogate the emergency regulations concerned, the ensuing debate and vote by the Pre-97 LegCo as a whole against the motion, clearly showed that despite section 2(3) of the ERO, the Pre-97 LegCo still considered that it had control over the emergency regulations made thereunder and could, if necessary, abrogate it. (c) Judicial reasoning 88.The reasoning of the Full Court in To Lam Sin and Li Bun in holding that the ERO was intra vires the Pre-97 LegCo merits closer attention. Relevantly, the Full Court held:
(d) Emergency and public danger varied but with one common feature 89.There is no definition of emergency or public danger in the ERO. Based on the past invocations, what constituted, in the opinion of the GIC, emergency or public danger within the meaning of the ERO, warranting the making of the corresponding emergency regulations covered a host of varying circumstances. They ranged from a state of war, which threatened the very existence of Hong Kong; to widespread and serious breaches of public order and security, which threatened the law and order of the entire community; to outbreak of epidemic disease and natural disaster, which threatened life and health of the public; and to financial and other crisis fundamentally rocking Hong Kong’s economy and jeopardizing its citizens’ livelihood. They reflected a broad concept of emergency and public danger with the commonality of serious and immediate threats to Hong Kong and its citizens as a whole subsisting for a period of time. Correspondingly, the provisions of the ERO were wide and flexible enough for the GIC to legislate speedily and effectively to meet all and every kind of emergency and public danger that he had to specifically grapple with at the time. 90.We first look at the constitutional arrangement for general legislative powers under the BL. (a) Constitutional arrangement for general legislative powers 91.Under the BL, the constitutional arrangement for general legislative powers on the whole mirrors the past subject to the necessary modifications to reflect the change in the constitutional order. 92.First, under the design of the BL, the Government is very much an executive-led government (BL59 - 65): see the observation of Sir Anthony Mason in The Place of Comparative Law in Developing the Jurisprudence on the Rule of Law and Human Rights in Hong Kong (2007) 37 HKLJ 299, at p304. The CE is constituted the head of the HKSAR (BL43) and enjoys wide and extensive powers: see in particular BL48. However, the CE simply does not have general legislative powers. 93.Second, BL56(2) acknowledges that CE may, in consultation with the Executive Council introduce bills and make subordinate legislation. However, as Mr Yu has fairly accepted, BL56(2) is not an enabling provision conferring on the CE the legislative power to make subordinate legislation. The source of such power can only come from the delegation by the LegCo to the CE. 94.Third, BL66 establishes the LegCo as the legislature of the Region to exercise the general legislative powers vested in the HKSAR under BL17(1). BL73 further mandates the LegCo to exercise the powers and functions as prescribed, including, under sub-paragraph (1), to enact, amend, repeal laws in accordance with the provisions of the BL and legal procedures. Importantly, BL11(2) provides that no law enacted by the LegCo shall contravene the BL. 95.Further, as held by this Court in Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460, per Cheung CJHC (as he then was) at [24] - [25] and per Poon JA (as he then was) at [87], the LegCo is subject to the BL and all other constitutional requirements. Within those confines, the LegCo is otherwise a sovereign body under the BL: Leung Kwok Hung v President of Legislative Council [2007] 1 HKLRD 387, per Hartmann J (as he then was) at [10]; Cheung Kar Shun v Li Fung Ying [2011] 2 HKLRD 555, per A Cheung J (as he then was) at [217]. 96.Fourth, the BL does not create a new legislature out of a vacuum: Cheng Kar Shun v Li Fung Ying, supra, per A Cheung J at [121]. In our view, subject to the BL and other constitutional requirements, the common law principles governing the Pre-97 LegCo continue to apply under the theme of continuity. Thus, the principle of delegation in the colonial era under which the Pre-97 LegCo could delegate to the executive branch of government or any person or body to make subordinate legislation continues to apply after 1997, as suitably modified to reflect the change in the constitutional order. Insofar as the CE is concerned, the power to make subordinate legislation pursuant to such delegation is expressly acknowledged in BL56(2). 97.As a matter of fact, the various ordinances by which the Pre-97 LegCo authorized the executive branch of the Government and the Chief Justice to make regulations referred to above remain in force. After 1 July 1997, the LegCo has enacted further ordinances to empower the executive branch and the Chief Justice to make regulations[36]. It demonstrates that the common law principle of delegation continues to thrive in the post-1 July 1997 era. 98.Fifth, it is settled law since the establishment of the HKSAR that our courts, in exercising their independent judicial power vested with them by BL19(1) and BL80, have a constitutional duty to enforce and interpret the BL and to examine whether legislation enacted by the legislature and executive acts are consistent with the BL and, if found to be inconsistent, to hold them to be invalid: Ng Ka Ling & Others v Director of Immigration, supra, per Li CJ at p25G-J. 99.In sum, the constitutional arrangement under the BL for the exercise of legislative power broadly resembles the past before 1 July 1997. The LegCo is the only institution vested with general legislative powers exclusively. Neither the CE nor, for that matter, other branches of the Government has the general power to legislate. In exercising its functions and powers, the LegCo is bound by the BL and other constitutional requirements. Within the constitutional confines and under the common law principle of separation of powers, the LegCo is autonomous. Like the Pre-97 LegCo, the LegCo can under the common law delegate its legislative powers to the CE and other branches of the Government to make subordinate legislation by enacting specific enabling ordinances. Correspondingly, that is the limited extent to which the CE and other branches of the Government can legislate. When a challenge is made, the court can examine the constitutionality of the enabling ordinance, and the constitutionality and vires of the subordinate legislation made thereunder, as the case may be. 100.It follows that under the constitutional framework of the BL, the LegCo can delegate to the CEIC legislative powers by way of an enabling ordinance to make emergency regulations provided that they are subordinate legislation. As we understand the parties’ submissions, they do not differ on this point. 101.This brings us to the ERO. At this juncture, we look at it in the overall context of continuity. (b) The ERO as an integral option for emergency measures 102.The BL contemplates a wide range of options available to the NPCSC and the Government, as the case may be, allowing different and specific measures to be made to address the varying exigencies of emergency or public danger generally. 103.The first option is vested with the NPCSC alone. In the most extreme case of a state of war as declared by the NPCSC or turmoil endangering national unity or security beyond the control of the Government, BL18 enables the Central People’s Government (the “CPG”) to issue an order applying the relevant national laws in Hong Kong. Other than this dire scenario which necessitates the NPCSC’s action, how to tackle emergency and public danger is basically left with the Government. 104.It is worth noting that where there is an official proclamation of public emergency under section 5 of the HKBORO, measures may be taken derogating from the BOR to the extent strictly required by the exigencies of the situation save and except non-derogable rights: section 5(2)(c)[37]. Those measures must be taken in accordance with law: section 5(1). 105.The second option involves the CPG and garrison upon the request of the Government. Under BL14(3), for maintenance of public order or disaster relief, the Government may ask the CPG for assistance from the garrison. 106.Plainly, other occasions of maintenance of public order or disaster relief where the Government does not need to ask the CPG for assistance from the garrison under BL14(3), and many other cases of emergency and public danger, not limited to maintenance of public order of disaster relief, may happen. To cope with those situations, the BL provides the CE with three further options. 107.The CE may adopt executive and administrative measures in emergencies under BL56(2)[38]. The power to do so, it would appear, comes from the general executive powers of the Government[39], of which the CE is the head[40]. 108.If emergency legislative measures are required, the CE may make a request to the President of the LegCo under BL72(5) to convene an emergency session of the legislature to pass the necessary laws. 109.There is another option which the CE can resort to if emergency legislative measures are required, that is, invoking the ERO to make emergency regulations. As explained above, BL56(2) recognizes that the CE can make subordinate legislation under an enabling ordinance pursuant to the common law principle of delegation by the LegCo, including emergency regulations. In respect of emergency and public danger, as at 1 July 1997, the only ordinance, upheld twice by the court, which delegated to the CEIC the power to make emergency regulations was the ERO. So both the ERO and the CEIC’s power to invoke it to make subordinate legislation to deal with emergency and public danger were clearly within the contemplation of the drafters of the BL. They must have regarded the ERO to be compatible with the BL so that it would remain in our statute book after 1 July 1997. 110.Based on the past invocations, the ERO is powerful and versatile enough to enable the CEIC to legislate speedily and effectively to meet all and every kind of emergency and public danger that imposes serious and subsisting threats to Hong Kong and its citizens[41]. 111.In sum, under the theme of continuity, the BL contemplates that the ERO under which the CE has the power to make emergency regulations is one of the integral options for tackling emergency and public danger. The theme of continuity strongly suggests that the ERO is constitutionally compliant and should remain as part of the laws of Hong Kong. If the ERO were held to be unconstitutional, it would leave a significant lacuna in the law for dealing with emergency and public danger generally. The CE would be deprived of the power to respond swiftly, flexibly and sufficiently by making the necessary emergency regulations even though the circumstances clearly warrant it and it is in the public interest to do so. 112.At [82] ‑ [93] of the Judgment, the Judges dealt with the theme of continuity and To Lam Sin and Li Bun in some details. They took the view that the theme of continuity did not assist the respondents for a number of reasons. 113.First, the Judges noted that there was a fundamental change in constitutional order before and after 1997. Before 1997, under Article VII of the Letters Patent, it was the Governor who, by and with the advice and consent of the Pre-97 LegCo, might make laws for the peace, order, and good government of colonial Hong Kong. Further under Article X, the Governor had a discretion to assent or refuse assent to a bill passed by the Pre-97 LegCo or reserved it for the Crown’s signification. And if the Governor refused to give assent, there was nothing the Pre-97 LegCo could do about it. Under the BL, the LegCo is the legislature of Hong Kong (BL66). While a bill passed by the LegCo may take effect only after it is signed and promulgated by the CE (BL76), there are carefully calibrated provisions requiring the CE either to sign bills or refuse to do so in which case a chain of events would be set in motion that could result in the dissolution of the LegCo or resignation of the CE (BL49, 50 and 52). The Judges concluded that the law-making power of the LegCo under the BL is in substance different from that enjoyed by the Pre-97 LegCo whose constitutional role was to provide advice on, and give consent to, bills which the Governor then enacted into law in exercise of the law-making powers conferred on him under the Letters Patent[42]. 114.However, as we have explained above, properly understood, Article VII vested the general legislative powers not with the Governor but with the Pre-97 LegCo. The Pre-97 LegCo was not a mere advisory body assisting the Governor in making laws. It was the legislature of colonial Hong Kong. Had it not been the case, the judicial discussions in To Lam Sin and Li Bun based on the notion that a colonial legislature was sovereign and supreme within its province and how it could permissibly delegate its law making powers to the GIC in the context of the ERO were quite meaningless. And the Full Court would have decided the challenge that the ERO was ultra vires the Pre-97 LegCo on a totally different basis. The references to the difference before and after 1997 regarding the process after passage of a bill do not detract from the fact that the Pre-97 LegCo was the legislature of colonial Hong Kong under the Letters Patent before 1 July 1997, just is the case of the LegCo for HKSAR under the BL after 1 July 1997. 115.Second, the Judges held that the notion that the colonial legislature was sovereign and supreme within its province, which underpinned the reasoning of the Full Court in To Lam Sin and Li Bun, is no longer an apt description of the LegCo. For the BL is now supreme and even the LegCo cannot act contrary to a requirement under the BL. The LegCo no longer has the plenary power enjoyed by the Imperial Parliament but that which is conferred expressly or by implication on it under the BL[43]. They opined that there is a difference between a constitutional order which prescribes the legislature’s authority to make certain laws and binds the legislature to legislate according to certain procedures, and one which treats the legislature as supreme, citing The Executive Council of the Western Cape Legislature & Others v The President of the Republic of South Africa & Others 1995 (4) SA 877, at [59][44]. 116.As we have explained, the Pre-97 LegCo was always subject to the Letters Patent and other constitutional requirements. It was “supreme” or, as what we would prefer, autonomous, within the constitutional confines. That is the same for the LegCo. It is subject to the BL and all other constitutional requirements. Under the constitutional arrangement in the BL and further based on the common law doctrine of separation of powers, it is autonomous within the constitutional confines. The reference to the South African case does not take the analysis any further. 117.Third, the Judges noted that the ERO was enacted at a time when the Pre-97 LegCo consisted of the Governor, the Official Members and not more than six Unofficial Members which were appointed by the Governor, and was presided over by the Governor. They seemed to have endorsed a submission made in Ping Shek and another v The Canossian Institute, supra, at p72 that the GIC was a body that had actually, through its members, a controlling voice in the Pre-97 LegCo itself[45]. They then pointed out under the BL, the transfer of general legislative power by the ERO has to be examined in the context of a constitutional framework that seeks to ensure that laws are enacted, amended or repealed by a legislature constituted by election and whose composition is carefully prescribed. The LegCo is quite separate from the Government. There may be overlap in membership between the LegCo and the Executive Council, but under BL56, the CE need only consult the Executive Council and is not obliged to accept its majority opinion[46]. 118.In our view, the fact that politically the Governor was in control of the Pre-97 LegCo when the ERO was enacted or indeed at any other time does not detract from the fact that constitutionally and legally the Pre-97 LegCo remained the legislature of colonial Hong Kong. The Governor could not make laws on his own without proper delegation by the Pre-97 LegCo. How he was able to secure such delegation politically is irrelevant in terms of legal analysis. 119.Finally, the Judges considered that the reasoning of Hogan CJ in Li Bun, at pp100 and 102 supports the conclusion that inasmuch as the ERO confers “general legislative powers” on the CEIC (subject only to a limitation as to the occasions of public danger or emergency), the LegCo is deprived of any effective role to play in making of regulations which may range over virtually the whole field of legislation. Hogan CJ’s ultimate conclusion that the ERO did not cross the fine line under the then constitutional set-up is not applicable to the constitutional order under the BL[47]. 120.For reasons which we will develop below, we disagree that under the existing constitutional framework the LegCo cannot exercise any real or meaningful control over the emergency regulations made under the ERO. That Pre-97 LegCo, according to Hogan CJ, could not do so because of the restraints under the then constitutional order, is quite beside the point. Further, as will be seen, under the existing constitutional framework the court can also exercise effective control over the CEIC in exercising the powers under the ERO and the emergency regulations made. This is a crucial point in considering the constitutionality of the ERO in the overall constitutional context but was not considered by the Judges. 121.In consequence, the Judges erred in failing to give sufficient weight to the theme of continuity and to To Lam Sin and Li Bun in their analysis. E4. Principal features of the ERO 122.The ERO being constitutionally compliant is not only supported by the theme of continuity. Upon a proper construction by a closer and updated analysis of its principal features with reference to the relevant contemporaneous jurisprudence, the ERO only confers limited legislative power on CEIC to make subordinate emergency regulations, and not primary legislation, on an occasion of emergency or public danger. E4.1 True nature of the ERO and emergency regulations 123.First and foremost, it is imperative to bear in mind the true nature of the ERO and the emergency regulations made thereunder as a matter of substance. 124.There are many reasons for a legislature to delegate to the executive branch of the Government, or any other person or body, by way of an enabling primary legislation, legislative power to make subordinate legislation, as the editors in Bennion on Statutory Interpretation (7th edn), at section 3.1, enumerate:
125.Scenarios (a) to (d) involve essentially the same legislative technique. The enabling primary legislation legislates on a subject matter in principle usually with a board framework, leaving the subordinate legislation to elaborate by filling in the details as and when required. 126.For scenario (e), the legislative approach can be different for a number of reasons. By nature, emergency or public danger is not capable of exhaustive definition, which means that usually a general or board definition is used. It ordinarily requires an urgent and effective response to avoid an imminent threat, prevent a worsening of the situation or mitigate the effects of the emergency. The executive needs wide and flexible powers to deal with every and all exigencies expeditiously and effectually. It follows that emergency regulations which the primary legislation delegated to the executive to make are necessarily wide and extensive in scope. They may even by virtue of the so-called “Henry VIII Clauses” dis-apply or amend a primary legislation. A ready example of adoption of such legislative approach is the English Civil Contingencies Act 2004. The editors of Wade and Forsyth on Administrative Law, (11th edn), at pp730 - 731 observe:
127.As dictated by the considerations peculiar to emergency and public danger, the nature of emergency legislation, both primary and subordinate, differs quite considerably from ordinary primary and subordinate legislations. One must constantly bear this in mind when approaching the constitutionality of the ERO. That is, with respect, what the Judges had failed to do. 128.At [56] of the Judgment, in giving the first reason why, in their opinion, the ERO conferred primary legislative powers on the CEIC, they highlighted the fact that the ERO was not an ordinary piece of primary legislation that legislated on a subject matter in principle leaving another body to devise the detailed legal norms that elaborated or put flesh on the broad matters laid down in the primary legislation. But such a difference always exists and is exactly the reason why the ERO and emergency regulations should be treated differently from ordinary primary and subordinate legislations. In citing that as a reason against the ERO’s constitutionality, the Judges had failed to sufficiently appreciate the true nature of the ERO and emergency regulations. 129.As the main power conferring provision, section 2(1) provides:
130.Two main points arising from section 2(1) need to be addressed. 131.First, there is no definition for public danger[48]. It is a matter for the CEIC to consider if an occasion of public danger exists. The Judges were understandably concerned. At [60] of the Judgment, they observed that the meaning of public danger could potentially be very broad. They held that since the ERO did not state a “reasonably grounds” test, the discretion conferred by the ERO could be virtually unreviewable. They at [61] went on to query the utility of any review because of the strict confidentiality and pubic interest immunity attaching to information placed before the CEIC. Relying on certain passages in Li Bun, they at [62] noted that the width of the powers left precious little room for the doctrine of ultra vires to operate. 132.In our view, there is nothing objectionable in itself to task the CEIC to determine if an occasion of public danger exists. After all, it is a grave decision with immense consequences which affect the entire community. As the head of the HKSAR, the CE, with the advice of the Executive Council, is evidently the only suitable person to make the call. 133.That said, it does not follow that the CE could act freely without any rein as she wishes. She is subject to close judicial scrutiny. She can only invoke the ERO when there is a public danger. That condition must be strictly adhered to. Although there is no statutory definition for public danger, whether such a state exists at any given time can be objectively gauged by the prevailing circumstances. The past invocations in the colonial era are good examples. As said, they all involved serious and immediate threats to Hong Kong and its citizens as a whole which subsisted for a period of time. In the present instance, the parties do not dispute that a state of public danger arising from the recent ongoing and large-scale social unrest often associated with serious and prevalent violence did exist at the time when the PFCR was made. The present state of affairs shares the same commonality with the past instances of emergency and public danger. In any event, if necessary, the court may provide an interpretation to the meaning of public danger to fill the lacuna, if there is really one, as appropriate[49]. The CE’s decision to invoke the ERO can then be subject to judicial scrutiny by reference to such interpretation. Further, the CE’s decision that an occasion of public danger existed is reviewable under the Wednesbury principle too. She must also act bona fide in furtherance of the statutory purpose of the ERO according to the Padfield principle: Padfield v Minister of Agriculture Fisheries and Food [1968] AC 997. 134.The Judges’ concern that only very limited information is available making a legal challenge against the CE’s decision to invoke the ERO difficult, if not impossible, is misplaced. As will be seen in a while, emergency regulations made under the ERO are subject to the negative vetting procedure. For that procedure, the Government will ordinarily present a LegCo Brief, a public document, to explain the background, the underlying policy, the justification and various matters pertaining to the emergency regulations. The LegCo can also ask the Government for further relevant information. So even assuming that the papers placed before the CEIC are confidential or subject to immunity (which presumably may be waived), the LegCo Brief and any such further information will provide the necessary materials to facilitate the mounting of the legal challenge[50]. 135.The Full Court might have said something in Li Bun suggesting that there was little room for the doctrine of ultra vires to operate. But Li Bun was decided almost 60 years ago. The law has moved on since then. We do not see how Li Bun could have inhibited the application of the doctrine of ultra vires nowadays in any significant way. 136.In any event, all emergency regulations made under the ERO must not contravene the BL. As illustrated by our discussion on the PFCR below, this already provides adequate basis for the court to scrutinize their validity. 137.The second point arising from section 2(1) is this. The powers conferred by section 2(1) on the CEIC are undoubtedly wide and extensive. As explained above, given the nature of the ERO and emergency regulations, such powers are necessary. That the Judges failed to appreciate when they at [57] of the Judgment cited it as a reason for ruling against the constitutionality of the ERO. 138.This is the so-called “Henry VIII Clause”:
139.As Hogan CJ observed in Li Bun, at p101, it is necessary to confer on the CE such power, otherwise her capability to make adequate provisions for some unexpected danger or emergency might be hampered or limited by the inability to alter any existing ordinance, especially, when the LegCo could not, for one reason or another, be brought into session or meet. 140.The Judges disagreed for two reasons. 141.At [64] of the Judgment, they first said that there is no provision in the BL that authorizes the CEIC by herself to amend or repeal primary legislation. That must be true. But the CEIC does not derive the power to amend or repeal primary legislation from the BL. She does so from the delegation by the LegCo under the common law. This leads to their second point. 142.At [65] - [66] of the Judgment, the Judges observed that validity of Henry VIII Clauses is based on parliamentary sovereignty which the LegCo does not enjoy and that such Clauses are antithetical to the norm of subsidiary legislation as understood in Hong Kong under section 28(1)(b) of the Interpretation and General Clauses Ordinance (Cap 1) (“the IGCO”) that “no subsidiary legislation shall be inconsistent with the provisions of any Ordinance”. 143.While it is true that the LegCo does not enjoy supremacy in the Diceyan sense, it is wrong to say that it cannot as a matter of Hong Kong common law delegate to the CE the power prescribed by section 2(2)(g) of the ERO in cases of emergency or public danger. There is nothing in the BL or anywhere else to indicate that such common law principle contravenes the BL and has not migrated to the post‑1997 era. 144.The Judges’ reliance on section 28(1)(b) of IGCO is misplaced. Pursuant to section 2(1) of the same Ordinance, the application of the provisions of the IGCO is subject to the contrary intention that appears from the context of any ordinance. Given the context of the ERO, there is definitely a contrary intention to dis-apply section 28(1)(b) to emergency regulations made thereunder. 145.As part of the powers conferred on her, section 3(1) of the ERO enables the CEIC to make regulations to provide for a contravention as a criminal offence with associated penalties up to a maximum of mandatory life imprisonment. This is evidently part and parcel of the wide and extensive powers that the CEIC needs to effectively tackle emergency or public danger, especially when it involves a serious, prevalent and subsisting breach of law and order. 146.The Judges’ only criticism is that it is contrary to the norm for subsidiary legislation under section 28(1)(e) of the IGCO, which specifies the maximum sentence for an offence based on contravention of a subsidiary provision to be a fine of HK$5,000 or six months’ imprisonment. Again, the Judges erred in failing to see that because of the context of the ERO, section 28(1)(e) must have been dis-applied. E4.5 Negative vetting and repeal 147.According to section 2(3) of the ERO, the emergency regulations made shall continue in force until repealed by order of the CEIC. 148.As the Judges rightly held at [69] - [72] of the Judgment, section 2(3), properly construed, does not itself prevent such regulations from repeal by resolution of the LegCo during negative vetting under section 34 of the IGCO or from repeal by a subsequent ordinance. The latter appears to be consistent with what the Pre-97 LegCo did in 1936 in the failed attempt to abrogate the emergency regulations in question. 149.At [74] of the Judgment, the Judges said that it is open to the CEIC, as part of the regulations made under the ERO, to amend or suspend the operation of section 34 of the IGCO. In our view, when the ERO is properly construed, it does not allow the CEIC to do so. Pursuant to section 2A(1) of the IGCO, all laws previously in force in Hong Kong shall be construed with such modifications, adaptions, limitations and exceptions as may be necessary so as not to contravene the BL. Thus the ERO must now be construed to make it compatible with the BL. And under BL73(1), the LegCo’s legislative power to amend or repeal laws in accordance with the provisions of the BL and legal procedures must include the power to scrutinize, and if found necessary, to amend or even repeal, subordinate legislation made by other branches of the Government. So on a proper interpretation to make it in line with BL73(1), the ERO does not empower the CEIC to amend or suspend the operation of section 34, thereby depriving the LegCo the control over the emergency regulations by the negative vetting procedure. E4.6 Check on duration of regulations 150.Despite the point on negative vetting, the Judges at [68] of the Judgment said that there is no time limit on the validity and force of the regulations, nor any mechanism for constant review. However, in accordance with the negative vetting procedure under section 34 of the IGCO, there is a first phase of scrutiny whereby the regulations may take effect pending expiry of the time limit of 28 days, which may be extended for 21 days. If repealed during negative vetting, the regulations will not last beyond such time limit. Further, even if the regulations continue to take effect despite negative vetting, there is a second phase of scrutiny whereby the LegCo can further review them. Nothing can stop the LegCo from stepping in to put an end to the emergency regulations by way of primary legislation. Further, as Mr Yu has rightly accepted, the duration of the emergency regulations is open to challenge by way of judicial review if the CE fails to repeal them when the state of public danger no longer exists. 151.The Judges at [75] - [79] of the Judgment were concerned that once promulgated, the emergency regulations immediately become part of the general law. Even if repealed later, it would not “un-do” the regulation’s effects and revive the original legislation if it was repealed by the regulations. We need not dwell on the point. For such scenario happens whenever a piece of legislation is repealed. By itself it does not operate against the ERO. 152.In our view, when properly analyzed, the emergency regulations which the ERO authorizes the CEIC to make is subordinate legislation. The ERO does not confer on the CEIC general legislative power to make primary legislation. 153.In our discussion above, we have not dealt with each and every single point taken by counsel. We consider what we have set out above is sufficient for the present purpose. And for the foregoing reasons, we hold that the ERO does not confer on the CEIC general legislative power to make primary legislation. It does not contravene the BL. 154.In KWH-RN, KWH seek to further support the Judges’ conclusion under Ground 1 on the basis of the principle of legality[51]. In gist, it is submitted that the principle of legality averts a construction of BL17(2), 66 and 73(1) that the drafters intended that the LegCo could enact laws that would have the effect of conferring unlimited and general law‑making power on the CEIC, or conversely that the CEIC could constitutionally rely on BL56(2) and 62(5) to usurp the role of the LegCo. In our views, the principle of legality contention does not add anything further to the applicants’ other contentions that we have considered above. Thus, for the same reasons, we would also reject such contention. 155.In the premises, we would respectfully differ from the Judges and reject Ground 1. We would allow the respondents’ appeal in this regard. 156.It is not disputed that the PFCR imposed restrictions on fundamental rights protected by the BL and the BOR and must, in addition to being prescribed by law, satisfy the proportionality test in order to be valid. The rights engaged were identified at [127] (BL27 and BOR14, 16 and 17 rights in respect of section 3 of the PFCR) and [169] ‑ [173] (BL27, 28 and 31 and BOR5, 8, 14 and 16 rights in respect of section 5) in the Judgment. 157.The proportionality test involves a four-step examination:
158.In our judgment, notwithstanding that the PFCR touches upon matter of public order and measures which are necessary for the restoration of law and order in Hong Kong and to meet the challenges to the stability of our society presented by the recent turmoil, the appropriate standard that the court should adopt in carrying out the proportionality analysis in this instance should be the stricter standard of “no more than necessary” as submitted by Mr Chan instead of the “manifestly without reasonable foundation” standard advocated by Mr Yu. 159.In Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353, Ma CJ explained at [37] ‑ [46] the considerations which guide the Court in deciding the standard to be adopted in the proportionality analysis. Three facets were mentioned in particular: the nature of the right in question and the degree to which it has been encroached upon; the identification of the relevant decision-maker; and the margin of appreciation. 160.The Chief Justice also highlighted the separate constitutional and institutional responsibilities of the judiciary and other organs of the Government. In assessing the extent to which margin of appreciation should be accorded to the decision maker, the court should consider if the decision maker is institutionally likely to be better placed than the court to make an assessment in relation to the particular issue in question. 161.Though we agree with Mr Yu that the provisions in the PFCR do not prohibit the exercise of the rights engaged, viz freedom of expression, right to assembly and demonstration and right to privacy, we also bear in mind that section 3 imposes restrictions which curtail the exercise of these fundamental rights in a substantial manner. In some circumstances (and we recognize that they are real possibilities) the measures may discourage some people from exercising their right of demonstration and even bar them from a particular form or manner of demonstration. 162.Whilst we would not underestimate the onerous and difficult responsibility on the CEIC in deciding whether the prevalent public danger called for measures in the PFCR, as illustrated by previous cases like Leung Kwok Hung & Others v HKSAR (2005) 8 HKCFAR 229, the court is constitutionally and institutionally well-placed to make proportionality assessment in respect of legislation (including subsidiary legislation) relating to the maintenance of law and order in our society. The court is also institutionally tasked with the constitutional duty to strike a balance between conflicting societal interest and fundamental rights of individuals in public order matters. 163.Hence, we respectfully agree with the Judges that the appropriate standard should be the “no more than necessary” standard. 164.Like the Judges, we shall address the proportionality of section 3 and that of section 5 separately. F2.1 Legitimate aims and rationality 165.At [130] of the Judgment, the legitimate aims of the PFCR were identified as follows:
166.Mr Yu submitted that these legitimate aims are to be considered against the background of the crisis of public disorder that Hong Kong had experienced in the past few months and that the exercise of the power under the ERO to make the PFCR was deemed necessary by the CEIC in order to restore the stability and to maintain the law and order in the society. 167.Counsel referred to the speech of the CE on 4 October 2019 when she announced the promulgation of the PFCR at a press conference. To recap, the CE recounted the frequent and widespread violent behaviours of some rioters in the course of demonstrations and processions since June 2019 and the escalation in such violence resulting in serious damage (including damage to private properties) and injuries to citizens and law enforcement officers. She also highlighted that lethal weapons were being used by rioters to attack police officers. A high proportion of these violent protesters were students and many of them wore masks and other protective gears to hide their identities in order to escape from criminal responsibilities. 168.In the Judgment, the Judges also alluded to the dire situation facing Hong Kong at [132], reiterating the disorder and violence experienced and witnessed by all those in society incessantly and the development of such violence on an escalating scale. At [137] and [138], the Judges agreed with Mr Yu that many public assemblies or processions which initially took place lawfully and peacefully were turned into unauthorized or unlawful ones with some radical protesters resorting to violence. 169.The Judges found that there could not be a simple dichotomy between peaceful and violent protesters as people’s behaviour may change depending on the circumstances and the influence from others around them. They further accepted that facial covering makes law enforcement, investigation and prosecution more difficult. 170.Against such background, the Judges held that the PFCR served legitimate aims and they are rationally connected with the same. 171.Before us, Mr Chan did not challenge these conclusions of the Judges. He also accepted that the restriction under section 3(1)(a) (prohibition in respect of unlawful assembly) is no more than necessary and strikes a fair balance between individuals’ right and the societal benefit served by the restriction. Mr Pun SC on behalf of LKH likewise did not challenge these conclusions in relation to section 3 (though he challenged the same in respect of section 5, which we shall deal with below). Counsel also accepted section 3(1)(a) is proportionate. 172.Hence, in these appeals, we shall focus on the proportionality of sections 3(1)(b), (c) and (d), in particular, for each of those restrictions whether it is no more than necessary to achieve the legitimate aims and whether a fair balance has been struck. 173.Before we address that key issue, we should first examine the precise scope of operation of section 3(1)(b) (which involves the examination of the concept of unauthorized assembly under the POO and its significance in terms of public order management) and the extent to which it interferes with the fundamental rights of demonstration and freedom of expression. F2.2 Permissible restrictions and scope of section 3(1)(b) 174.We start the analysis by reminding ourselves some relevant authorities on the permissible restrictions on the fundamental rights of demonstration and freedom of expression. 175.The right of demonstration and freedom of assembly are not absolute. In HKSAR v Chow Nok Hang (2013) 16 HKCFAR 837, the Court of Final Appeal highlighted the limits in section B.3 of the judgment. In particular, Ribeiro PJ said at [38] ‑ [40]:
And at [42]:
176.In the more recent case of Kudrevicius v Lithuania (2016) 62 EHRR 34, the Strasbourg Court considered if the criminal convictions of the applicants were compatible with the right to freedom of assembly. The applicants did not engage in any acts of violence. The regional court found that they had organised a gathering with the aim of seriously breaching public order, viz organising the blockade of a highway. They were convicted of criminal offences and were sentenced to 60 days’ imprisonment which were suspended. The Strasbourg Court held that the criminal conviction was justified as being necessary for pursuing the legitimate aims of prevention of disorder and protection of the rights and freedoms of others and found no violation of the freedom of assembly. 177.In respect of the breach of public order occasioned by blockage of road, the Court observed at [97] (omitting the footnotes):
178.The Court characterized the conduct of the applicants as “reprehensible” (see [101]). Such finding was important because on the facts of the case the demonstration was initially authorized and under Strasbourg case law, a person cannot be subject to a sanction for participation in a demonstration which has not been prohibited so long as that person does not himself commit any reprehensible act on such an occasion, see [149]. The Court further explained the concept of “reprehensible act” at [173] and [174] (omitting the footnotes):
179.In this respect, the concurring speech of Judge Wojtyczek at O1-3 pinpointed the rationale for finding such conducts reprehensible:
180.The Court also reiterated that any measures interfering with freedom of assembly other than in cases of incitement to violence must be subject to careful scrutiny. In particular, at [94] and [146], the Court had these to say:
181.For demonstration which has not been authorized, the Court made some general observations at [150] ‑ [153]. Whilst acknowledging that it is essential to have a system of prior notification, the absence of prior authorization does not give carte blanche to the authorities in taking enforcement actions. Such actions would still be subject to proportionality requirement. The Court highlighted that though there could be special circumstances which justify the holding of spontaneous demonstrations without prior notification, such exception must not be extended to the point where the absence of prior notification of a spontaneous demonstration can never be a legitimate basis for crowd dispersal. 182.Thus, the proportionality analysis has to be applied on two different levels:
183.In these appeals, it should be emphasized that we are only concerned with the first level of challenges. It remains for the court to assess the proportionality on the second level on the facts and circumstances in a particular case if a charge is brought against person. 184.The Strasbourg Court continued at [155] ‑ [157] in Kudrevicius v Lithuania, supra, to identify the need to have measures to restrict conducts causing disruption to ordinary life to a degree exceeding that which is inevitable for peaceful demonstration and assembly. At [155], the Court alluded to two important mindsets for striking the balance:
185.At [156], the Court said:
186.The rationale for imposing necessary restrictions was explained at [157]:
187.We shall now turn to consider the effective scope of section 3(1)(b). 188.Section 3(1)(b) prohibits the use of any facial covering that is likely to prevent identification while a person is at an unauthorized assembly. Unauthorized assembly has the meaning ascribed to it as set out in section 17A(2) of the POO. There are three different scenarios:
189.Public gathering is defined in section 2 of the POO to mean a public meeting, a public procession and any other meeting, gathering or assembly of 10 or more persons in any public place. 190.It should also be noted that:
191.Further, in respect of the conditions imposed for a public meeting which is subject to the requirement of notification under section 7, the conditions would be imposed under section 11(2) instead of section 6. For public procession which is subject to the requirement of notification under section 13, conditions imposed for the same would be issued under section 15(2) instead of section 6. These conditions (unlike conditions imposed under section 6) are subject to the appeal procedure under section 16. 192.Since section 7 applies to public meeting of more than 50 persons and section 13 applies to public procession of more than 30 persons, they cover most public gatherings of a large scale in Hong Kong. 193.The provisions in the POO have to be construed (insofar as it is possible to do so) in a manner which is compatible with the fundamental rights of demonstration and procession: see R v Home Secretary Ex p Simms [2000] 2 AC 115 at p131. They must also be applied in a manner compatible to such fundamental rights. Though section 17A(2)(a) provides that a public meeting or procession taken place in contravention of section 7 or 13 would be an unauthorized assembly, in light of the principle of tolerance and proportionality on the operational level as discussed in Kudrevicius v Lithuania, supra (see [180] ‑ [184] above) as well as a matter of practicality in view of the number of persons present at such gatherings, unless there are violent or other reprehensible conducts on the part of some demonstrators posing serious and imminent risk to public order and safety which requires immediate actions on the part of police, there should be prior warnings and the issuance and announcement of an order under section 17(3) before more drastic actions like arrests and dispersals are taken. 194.For gatherings which are not subject to notification requirement, the Commissioner would not have any advance notice and it is rather unusual for conditions to be imposed by the Commissioner under section 6 for such gatherings. Given that the Commissioner would be unlikely to be present at the scene of gathering, it is also unlikely that a condition will be imposed under section 6 in the course of such gathering. Further, in the context of an unauthorized assembly under section 17A(2)(b), the principle of tolerance and requirement of proportionality on operational level are also engaged. Like the case under section 17A(2)(a), unless there are violent or other reprehensible conducts on the part of some demonstrators posing serious and imminent risk to public order and safety which requires immediate actions on the part of police, there should be prior warnings and the issuance and announcement of an order under section 17(3) before more drastic actions. 195.In cases where conditions are imposed under section 11(2) or 15(2), when there are persons taking part in or forming part of the public meeting or public procession acting in breach of a condition (eg, the routes prescribed under conditions imposed), if the circumstances so required, the proper procedure under the statutory scheme of the POO is for the police to exercise the discretionary power under section 17(1)(a) and (b) with the giving of an order under section 17(3) to prevent the holding of, stop or disperse the gathering. 196.The power to order the stopping and dispersal of a gathering under section 17(3) must be exercised for the purpose of maintenance of public safety, public order and the protection of the rights and freedoms of others since the conditions under sections 11(2) and 15(2) can only be legitimately imposed for such purposes. The purpose of section 17 has to be ascertained by reading all relevant provisions together and in the context of the whole statute: see Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144. Thus, with the application of the Padfield principle as discussed at great length in Chee Fei Ming v Director of Food and Enviromental Hygiene [2019] HKCA 1425, the power under section 17 cannot be exercised arbitrarily. 197.Further, in terms of unauthorized assembly by virtue of non‑compliance with the notification requirements or the no objection requirement under section 7 or 13, before more direct enforcement actions like actual dispersal or arrest are taken by the police, the proportionality requirement on the operational level (see the discussion at [181] ‑ [184] above by reference to Kudrevicius v Lithuania, supra, prior warnings should have been given about the unauthorized nature of the gathering and an order for stop and dispersal should have been made under sections 17(1) and (3). 198.After such order has been given, the gathering should be discontinued. Otherwise, those without lawful authority or reasonable excuse, knowingly takes or continues to take part in the unauthorized assembly would commit an offence under section 17A(3). 199.Another possibility is that during the course of a public procession or public meeting, the conducts or behaviours of some persons taking part in the gathering lead a police officer of or above the rank of inspector to reasonably believe that it is likely to cause or lead to a breach of the peace. In that case, the police officer may exercise the power under sections 17(2)(a) and (b) in conjunction with the giving of an order under section 17(3) to prevent the holding of, stop or disperse the gathering. 200.Thus, under all these scenarios referred to at [188] above, when it is necessary for the police to take drastic actions like arrests and dispersal in respect of an unauthorized assembly, unless there are violent or other reprehensible conducts on the part of some demonstrators posing serious and imminent risk to public order and safety which requires immediate actions on the part of the police, an order should have been made under section 17(3) and there are at least three or more persons refuse or wilfully neglect to obey the order. 201.There cannot be a refusal or wilful neglect to obey an order unless the persons concerned were aware of the order. 202.Also a person cannot be regarded as knowingly taking part in an unauthorized assembly unless he was aware of the unauthorized nature of the gathering or the order under section 17(3) and that there are three or more persons refusing or wilfully neglecting to comply with such order. 203.The compatibility of the statutory scheme under the POO (in respect of public procession) was examined by the Court of Final Appeal in Leung Kwok Hung & Others v HKSAR, supra. The defendants in that case were convicted of offences under section 17A(3)(b)(i) for holding and assisting in the holding of unauthorized assembly. The assembly in question was a peaceful procession of between 40 and 96 people and it was unauthorized because the defendants refused to give prior notification. 204.At [47], [50] and [54] ‑ [57], the majority of the Court of Final Appeal highlighted that the discretionary powers of the Commissioner must be exercised for the statutory legitimate purposes, viz, he reasonably considers that the restriction is necessary in the interests of national security or public safety, public order or the protection of the rights and freedom of others. The Commissioner must himself apply the proportionality test in that consideration, see [57]. 205.Though the Court of Final Appeal held that the statutory scheme under the then POO (regulating the discretion of the Commissioner by reference, inter alias, to the concept of order public) did not satisfy the “prescribed by law” requirement, the majority held that such reference to order public could be severed and the remaining concept of public order (in the law and order sense, viz, the maintenance of public order and prevention of public disorder, see [82] and [83]) is sufficiently certain. The majority of the Court of Final Appeal also held that the Commissioner’s statutory discretion to restrict the right of peaceful assembly for the purpose of public order is no more than is necessary to accomplish the legitimate purposes: see [92] ‑ [94]. The convictions were upheld accordingly. 206.In this connection, though on the facts of the case the conviction was due to the failure to give notification, the Court of Final Appeal also examined the full range of discretionary powers that the Commissioner and the police could exercise in restricting the freedom of assembly and procession: see the analysis of the statutory scheme and the statutory discretion at [43] ‑ [63]. In light of that, it would be surprising if after the severance of order public from the relevant provisions, the majority of the Court of Final Appeal still regarded some aspects of the statutory discretion concerning unauthorized assembly other than the requirement to give notification to be unconstitutional and made no comment on the same. 207.As explained by the Court of Final Appeal, the public order considerations are not confined to cases where violent confrontations would entail. They also embrace traffic conditions and crowd control. Presence of rival groups and reaction of members of the public are also relevant: see [92(3)]. 208.To sum up, there are valid and serious public order concerns for unauthorized assembly:
209.Unlike the offence of unlawful assembly under section 18 (which is the situation addressed under section 3(1)(a) of the PFCR), there is no specific requirement of an unauthorized assembly under section 17A(2) that the persons assembled conduct themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause any person reasonably to fear that they will commit a breach of the peace. 210.Such distinction was regarded by the Judges as significant in assessing if the restriction under section 3(1)(b) is no more than necessary in the proportionality analysis. Thus, at [154] of the Judgment, they observed:
211.With respect, in so holding, the Judges failed to have regard to the pre-emptive nature of the provisions in imposing sanctions against unauthorized assemblies under the POO and their significance in the context of the maintenance of public order, particularly in the context of the current public danger which, as explained above, the PFCR as a piece of regulations promulgated under the ERO is meant to address. 212.Further, the Judges failed to take account of the actual operation of the statutory scheme as explained above, in particular the circumstances under which an order under section 17(3) of the POO would be made. If it is only a small number of participants deviating from the approved route of procession without any conducts or behaviour causing serious disruption to public order, an order for the stop and dispersal of the gathering will not be compatible with the principle of proportionality on an operational level. 213.As explained above, under the scheme of the POO, in respect of the designation of the route as a condition imposed for a procession under section 15(2), such condition is set because the Commissioner regards it as being necessary and proportionate in the interests of national security or public safety, public order or the protection of the rights and freedoms of others. It follows that deviation from the designated route would have ramifications on the maintenance of public order even though such deviation does not entail violence or threat of violence. 214.Even so, such deviation would not per se turn the procession into an unauthorized assembly. Police officers could give warnings against deviations or take other steps to restore order or to prevent disorder. It is a matter of discretion and judgment on the part of the police officers present at the scene, guided by the principles of law set out in this judgment (in particular the importance of proportionality on the operational level discussed at [180] ‑ [184] and [193] ‑ [197] above), to assess what steps are necessary to redress the disruption to public order occasioned by a deviation. Under section 17(2), a police officer of or above the rank of inspector may vary the route of any public gathering if he reasonably believes that the same is likely to cause or lead to a breach of the peace. There are also other measures that can be taken under sections 17(4) and (6). 215.It is only when a police officer forms a judgment that due to the conducts and behaviours of some participants in breach of conditions imposed for the gathering, such gathering has to be stopped and dispersed and the officer issues an order to that effect under section 17(3) the implications for unauthorized assembly under section 17A(2)(c) (including the application of section 3(1)(b) of the PFCR) kick in. As explained at [201] and [202] above, the persons concerned must have the requisite knowledge before he could be found guilty of the offence under section 17A(3). 216.In this connection, the analysis of the statutory scheme under the POO (and thus the scope of section 3(1)(b) of the PFCR) discussed at [188] ‑ [202] and [212] ‑ [215] above must be borne in mind. In particular, the prerequisite of an order under section 17(3) in cases other than those involving violent or other reprehensible conducts on the part of some demonstrators posing serious and imminent risk to public order and safety which requires immediate actions on the part of the police (see [193] above) and the proportionality on the operational level are safeguards against unjustified interference with the rights of peaceful demonstration and assembly. 217.Thus, the scenario postulated by the Judges that a procession which proceeded peacefully and orderly would by virtue of a deviation of a minor scale turn the whole gathering into an unauthorized assembly is, with respect, rather unreal. 218.At this juncture, we should address the submission that because the use of the word “at” in section 3 of the PFCR, a person could be found guilty simply by virtue of his presence at and wearing a mask in an unauthorized assembly even if he does not participate in the acts occasioning an order being made under section 17(3) and has no knowledge of such order. 219.To recap, section 3(1)(b) of the PFCR provides:
220.A contravention of section 3(1), including subparagraph (1)(b), is an offence by virtue of section 3(2). At the same time, section 4 provides a defence:
221.The problem arising from the word “at” was alluded to by the Judges at [156] of the Judgment:
222.In his submissions, Mr Yu did not shrink from the position that section 3(1)(b) of the PFCR (as indeed sections 3(1)(a), (c) and (d) also) is applicable when a person is present at the place where the gathering takes place. Counsel submitted that the test of taking part is inappropriate in this context because it has an element of knowingly associated or identified with the unlawful or unauthorized assembly, citing R v Wolfgramm [1978] 2 NZLR 184 and R v Cook & Ors (1994) 74 A Crim R 1. Further, the disorder occurred in the current public danger often arises from gatherings attended by a large number of people. Given the number of people present and the fluidity of the potentially explosive situations, it is more important to require all people taking off facial coverings to minimise the shielding and emboldening effect. This is against the background that one of the legitimate aims of section 3 is to deter the “more peaceful” protestors or bystanders from continuously giving tacit support to the continued challenge of law and order by those radical and violent protestors and shielding the latter from effective police actions and arrests. 223.In our judgment, the taking part in a gathering has to be examined at different stages. It is true that for unlawful assembly, taking part in it requires the proof of knowing association or participation. Apart from the authorities cited by Mr Yu, the same point was made in Secretary for Justice v Leung Kwok Wah [2012] 5 HKLRD 556 at [17] ‑ [22], citing the dicta of Macdougall VP in the earlier case of R v To Kwan Hang [1995] 1 HKCLR 251 at p254. 224.However, in the context of unauthorized assembly, as discussed at [193] above, other than cases involving violent or other reprehensible conducts on the part of some demonstrators posing serious and imminent risk to public order and safety which requires immediate actions on the part of the police, there should be an order issued and announced under section 17(3) of the POO for the stopping or dispersal of the gatherings before further conducts (by way of refusal or wilful neglect to comply) on the part of those at the assembly rendering the assembly unauthorized under section 17A(2)(c). An order of dispersal necessarily requires people at the assembly to leave the scene. If a person remains at the scene notwithstanding the order, he will be acting in defiance of the order. By virtue of section 17A(1)(a), all the persons in the vicinity who are aware of the stop and dispersal order should not remain at the scene. 225.As regards unauthorized assembly held without compliance with section 7 or 13, any person who is at such assembly would be participating in the unauthorized assembly. It is all the more so when such person does not leave the scene after the police announces that an order for stop and dispersal has been made under section 17(3). In this connection, the following observations made by Chantal Masse JCS in the Superior Court of Quebec in Villeneuve v Montreal (City of), 2016 QCCS 2888 at [477] and [478] on demonstration without notification as required by law are pertinent:
226.Subject to the requirement of awareness of such person of the unauthorized nature of the assembly and reasonable opportunity being given to those present to disperse and leave the scene, we do not see any fundamental objection to holding him liable for his continued presence at an unauthorized assembly. It is necessary to stress that the maintenance of the rule of law in Hong Kong should be the duty of all citizens who treasure the rule of law as a core value in our society. In the wake of an order for stop and dispersal of a gathering and direction being issued by police to leave the scene, a responsible law-abiding citizen should follow the direction instead of remaining there in defiance of such order and direction. Given the potential for rapid deterioration of the situation and the serious ramifications for the maintenance of law and order and safety of those at the scene in gatherings involving large number of persons, a person who refuses to disperse and leave an assembly after the order is publicly announced perpetuates a state of affairs which disrupts public order and gives rise to a serious threat of breach of the peace. By remaining at the assembly, even without the commission of further act of violence or threat of violence, such person perpetuates the worsening situation which can potentially escalate to serious violent confrontations and frustrates the statutory scheme under the POO for crowd control which is essential to the facilitation of peaceful demonstration and gathering. In short, those choose to remain at the gathering in defiance of an order to stop and dispersal actually participate in the unauthorized assembly. 227.In Secretary for Justice v Leung Kwok Wah, supra, the court observed that section 18 (which deals with unlawful assembly) has a pre-emptive effect and the design of the law is to put a stop to a deteriorating situation. The same observation can be made with regard to the provisions in sections 17 and 17A in relation to unauthorized assembly. The purpose of empowering the police to order a stop and dispersal of a gathering under section 17(3) is to prevent the escalation of confrontation and disorder when a gathering has given rise to imminent threats to the peaceful enjoyment of the right of demonstration and the rights and safety of other citizens. It is essential for effective crowd control and the due performance of the positive duty on the part of the police to facilitate lawful assemblies to take place peacefully (as explained in Leung Kwok Hung & Others v HKSAR, supra) that the police could bring a gathering to a halt when there are signs of such imminent threats. 228.The pre-emptive nature of these provisions is of particular significance in view of the unchallenged evidence on the worrying phenomenon recently witnessed in Hong Kong where the situations were often highly fluid (with peaceful demonstrations rapidly developed into unlawful riots with wanton and reckless violence causing serious damage to properties and even serious injuries to others). The evidence also shows that there were many instances where less radical protestors remaining at the scene to provide moral and actual support (in terms of shielding the identities of those violent protestors). Instead of condemnation of violent acts committed or the public disorder occasioned by the radical protestors, some other protestors provide assistance to the perpetuators of violent and destructive acts. 229.In this connection, it is noteworthy that in the case of Austin v United Kingdom (2012) 55 EHRR 14, the Grand Chamber of the Strasbourg Court had made these observations at [55] and [56] (omitting the footnotes):
230.Austin v United Kingdom, supra, was a case about the “kettling” or containment of a group of people carried out by the police on public order grounds. The Strasbourg Court upheld the validity of such measure in the circumstances of that case and rejected submissions that such containment constituted deprivation of liberty. The Court also examined the implications on Article 2 of Protocol No 4 to the European Convention for Protection of Human Rights and Fundamental Freedoms which guarantees the right to liberty of movement. Article 2 §3 of the said Protocol permits restrictions to be placed on the right to liberty of movement where necessary, inter alia, for the maintenance of public order, the prevention of crime or the protection of the rights and freedoms of others. The above observations on maintenance of public order and protection of the rights of others were made in such context. 231.As discussed earlier, there are legitimate public order concerns for unauthorized assembly. In light of the public danger facing Hong Kong with peaceful assemblies or processions by large number of persons wearing masks having a propensity of being hijacked by radical protestors and the rapidity of the worsening of situations, these public order concerns should be accorded with greater weight. Against such background, a deliberate defiance of the regulations against unauthorized assembly which are designed for the maintenance of public order and safety and protection of the rights of others is no less reprehensible than conducts which can be regarded as unlawful assembly. 232.On the other hand, we do not regard bystanders or passer-by as people “at the assembly” notwithstanding that they happened to be at the scene when the assembly becomes an unlawful assembly. Adopting a purposive construction and giving due regard to the principle of legality discussed at R v Home Secretary Ex p Simms [2000] 2 AC 115 at p131 as applied to the basic right of freedom of movement, we are of the view that such bystanders or passer-by cannot be regarded as being “at the assembly” when they are not part of the assembly in the first place nor do they take any steps to join the assembly at some stage. For such persons, a section 17(3) order cannot be directed against them. A person must have joined an assembly at some point in time before he could properly be regarded as “at the assembly” for the purpose of section 3(1) of the PFCR. The Chinese version of “at” in the relevant part of section 3(1) is “身處以下活動時”, not “身處以下活動發生的地點或場所”. In other words, there is a distinction between a person present at the scene or place where the assembly takes place and a person actually present at the assembly. 233.As we shall explain below, we are not minded to uphold the prohibition under section 3(1)(c) and (d) of the PFCR. Thus, there will be cases where a person lawfully wears facial coverings in a lawful public meeting or procession which is somehow hijacked by some people participating in the same gathering. For those persons, we are of the view that the defence of reasonable excuse under section 4 should be applicable when they are not aware of any order made under section 17(3) of the POO; or when they have not had a reasonable opportunity to leave the scene after becoming so aware. 234.As a matter of construction, the scenarios specified under section 4(3) are not exhaustive of the defence of reasonable excuse. By virtue of the potential adverse impact on the right of peaceful demonstration stemming from section 3 of the PFCR, the defence of reasonable excuse should be given a liberal interpretation. As held in R v Home Secretary Ex p Simms, supra, at p131, the principle of legality requires statutes to be interpreted insofar as possible in a manner compatible with fundamental rights. Thus, in cases where there is sufficient evidence to raise an issue of lawful use of facial covering (eg, in the participation of lawful assembly or gathering) and the court cannot be satisfied beyond reasonable doubt that a person remains at the scene (after reasonable opportunity to leave has been given) and persists in wearing such facial covering notwithstanding having made been aware of a section 17(3) order and the breach of the same by others leading to the unauthorized continuation of the assembly or gathering, a defence under section 4 can be made out. 235.In considering sections 3(1)(b), (c) and (d) together (the effect of which is to ban facial coverings from all public demonstrations, processions and gatherings), the Judges found the reasoning in SAS v France (2015) 60 EHRR 11, Yaker v France, Communication No 2747/2016 (17 July 2018) and Villeneuve v Montreal (City of), supra, to be applicable. Those authorities addressed legislations or regulations banning facial coverings in public or public gatherings without distinction as to the nature of the gatherings and their public order significance. For reasons further canvassed below, we agree with them that a total ban of facial coverings from all public demonstrations, processions and gatherings cannot pass the test of reasonable necessity even in the context of the public danger in which the PFCR is meant to address. 236.However, the imposition of such restriction in some defined circumstances can be justified provided that law enforcement officers are not given unduly broad discretionary power to give rise to potential for arbitrariness. In the Guidelines on Freedom of Peaceful Assembly published by a panel of human rights expert, cited by the court in Villeneuve v Montreal (City of), supra, at [496], there is the following commentary:
237.There is no reason why each limb of section 3(1) should not be considered separately. Considering the ban under section 3(1)(b) on its own, given the public order concerns discussed above in respect of unauthorized assembly amidst the fluidity in terms of the rapid deterioration of many large scale processions and demonstrations into violent riots with most of the rioters adopting the black bloc strategy to escape from responsibility for very serious criminal acts, we are of the view that such ban (as interpreted above) is no more than necessary to achieve the legitimate aims. As we have seen, most people who choose to remain at the assembly despite their awareness of the unauthorized nature of the gathering (either because of the issue and notice of an order to stop and disperse made under section 17(3) or warnings given by police that the gathering is unauthorized on account of other reasons) should also be aware that they are at risk of being prosecuted for offences under sections 17A(1)(a) and (3)(a). The need to deter people from wearing facial coverings to frustrate the legitimate aims of the statutory scheme under the POO applies with equal force in the context of unlawful assembly as well as unauthorized assembly. 238.In coming to the above conclusion, we take account of the above analysis as to the scope of section 3(1)(b) of the PFCR (including our construction of the defence of reasonable excuse under section 4) and its potential effects on the right of demonstration and freedom of expression and the background leading to the promulgation of the PFCR and the legitimate aims served by the same. We summarize below the main considerations leading to our conclusion on necessity:
239.In such context, SAS v France, supra, and Yaker v France, supra, (concerning legislation which prohibits the wearing of clothing that is designed to conceal the face in public places all the time) are of little relevance. As evidenced by the reasoning set out in those cases, the finding of disproportionality in the cases stems from the absolute ban instead of limiting it to situations where there is a general threat to public safety (see [139] in SAS v France and [8.7] in Yaker v France). These cases did not examine the matter in the context of public order and safety where there had been riots emerging repeatedly from mass demonstrations leading to the state of public danger which the PFCR is meant to tackle. 240.We are also satisfied that on a systemic level the prohibition under section 3(1)(b) of the PFCR strikes a fair balance between the societal benefits pursued by the restriction and the inroads made to the rights of the individual subject to the same. 241.We would therefore reverse the Judges’ holding with regard to the proportionality of section 3(1)(b). Accordingly, we shall set aside the declaration of unconstitutionality in respect of this subsection. 242.The position is different in relation to sections 3(1)(c) and (d) of the PFCR. These provisions prohibit the wearing of facial coverings at either a lawful public meeting that takes place under section 7(1) of the POO or a lawful public procession that takes place under section 13(1) of the POO. The holding of such meeting or procession would have been notified to the Commissioner and also not prohibited by the Commissioner. For public procession, the requirements of section 15 were complied with. One of the requirements is that good order and public safety of the procession is maintained. 243.Thus, so long as those meeting and procession proceed in accordance with sections 7(1) and 13(1), there cannot be any serious public order or safety issues which warrant additional restrictions being placed on the same by way of prohibition to wear facial coverings. As we have seen, when such meeting or procession were hijacked by protestors with violent or disorderly disposition, there is ample power on the part of the police under the POO regime to issue an order under section 17(3) including an order to stop and disperse. Disobedience to such an order would turn the meeting or procession into an unauthorized assembly. 244.On the other hand, if the meeting and procession remain peaceful and orderly, it is difficult to see the justification for imposing a restriction on the freedom of demonstration by way of prohibition of wearing facial coverings. 245.Mr Yu submitted that such prohibition is necessary because demonstrators wearing facial coverings would provide a shield to the radical violent protestors and facilitate the black bloc tactics which frustrate the effective policing when violent or criminal acts were committed. 246.However, as we have analysed above, a peaceful demonstration would have already degenerated into an unauthorized assembly or unlawful assembly before actual violence begins. For those fluid situations where such degeneration occurs rapidly, there is still sufficient powers under the POO regime to regulate the same in a proportionate manner. Thus, we have highlighted that there are cases where a lawful assembly can become an unauthorized one without a section 17(3) order when violent or other reprehensible conducts on the part of some demonstrators pose serious and imminent risk to public order and safety which requires immediate actions on the part of the police. For those scenarios, an offence under section 17A(2)(a) and (3) can be committed without an order made under section 17(3). 247.Even taking account of the propensity of mass demonstrations turned violent in the recent turmoil, we are not persuaded that it is necessary to extend the prohibitions under section 3(1) beyond the situations stipulated under subsections (a) and (b). 248.Thus, in respect of the prohibitions in sections 3(1)(c) and (d), we respectfully agree with the Judges that they cannot satisfy the proportionality test. 249.To recap, section 5 of the PFCR confers power on police officer to require a person using facial covering in a public place to remove such covering to enable the officer to verify the identity of the person. If that person fails to comply with the request, the police officer can remove the covering. It further provides that the failure to comply with the request is an offence and liable to a maximum sentence of imprisonment for six months. 250.The Judges held that the provisions in section 5 engage freedom of the person and the right to liberty under BL28 and BOR5. Freedom of expression, freedom of movement and right to privacy were also relied upon and the Judges regarded that the proportionality analysis would be the same. Though they accepted that section 5 serves legitimate aims of law enforcement, investigation and prosecution and it is rationally connected with such aims, the Judges held that in light of the width of the measure (as explained at [185] of the Judgment), it exceeds what is reasonably necessary to achieve the aims even in the prevailing turbulent circumstances in Hong Kong. They also held that section 5 fails to strike a reasonable balance between the societal benefits derived from the measure and the inroads made to the protected rights. 251.By LKH-NoCA, LKH challenged the finding of the Judges that law enforcement, investigation and prosecution are legitimate aims. He also challenged the conclusion that section 5 is rationally connected with such aims. 252.The main argument of Mr Pun regarding the first challenge is that those aims were too broadly stated so that it could not afford a framework for evaluating the importance of such objectives. He also submitted that for an aim to be legitimate, a genuine need must be established. 253.With respect, we cannot accept these submissions. As demonstrated by the Judgment, the Judges were able to apply the proportionality analysis by reference to these legitimate aims. We do not see any difficulties in the evaluation on proportionality of the measures against these objectives. On the evidence, there is a genuine and pressing need to facilitate effective policing to counter the black bloc tactics. We also agree with the Judges that section 5 is rationally connected with these objectives for the reasons given at [183] and [184] of the Judgment. 254.The other points raised by Mr Pun had sufficiently been addressed by the Judges at [174] ‑ [179] of the Judgment. 255.We would dismiss the cross-appeal in these respects. 256.Coming back to the holding on reasonable necessity, Mr Yu submitted that the Judges erred in holding that section 5 is disproportionate when it involves minimal intrusion to an individual’s right but serves important functions of removing practical difficulties in identification and early intervention in times of public danger. 257.Counsel also submitted that section 5 of the PFCR should be construed together with section 54(1)(a) of the Police Force Ordinance (Cap 232) (“the PFO”) (which empowers a police officer to stop and demand proof of identity of a person acting in a suspicious manner in any street or other public place), section 49(1) of the POO (which empowers a police officer to require any person to produce proof of identity for inspection if he reasonably believes that it is necessary for prevention, detection or investigation of any offence) and section 17C(2) of the Immigration Ordinance (Cap 115) (“the IO”) (which empowers police officer to demand a person to produce proof of identity for inspection). 258.Applying the principle discussed in Medical Council of Hong Kong v Chow Siu Shek, supra, Mr Yu submitted that we should take all these statutory provisions together in construing the limits of the power under section 5. Alternatively, as a fallback position, Mr Yu submitted that the Court can declare that the power under section 5 can only be exercised in conjunction with these other statutory powers. 259.Mr Yu also relied on the decision of the European Commission in Reyntjens v Belgium Application No 16810/90 to support his argument that the restriction on personal liberty under section 5 is minimal. In that case, the European Commission held that a routine identity check did not violate the liberty of the person protected under article 5 and the right to respect for private life under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 260.The decision in Reyntjens v Belgium, supra, was made in 1992. The Commission did not regard a check of identity card by the police as an interference in a person’s private life. The identity card carried information as to the bearer’s name, sex, date and place of birth, main address, and his spouse’s name. The Commission took the view (somewhat surprising, if we may say so, in light of the more up-dated jurisprudence) that such identity card did not contain information relating to private life. 261.In DPP v Avery [2002] 1 Cr App R 31, the Divisional Court held that the exercise of the powers conferred by section 60 of the Criminal Justice and Public Order Act 1994 (which provided a police constable upon authorisation being given by an inspector under certain conditions could require any person to remove any item which were worn for the purpose of concealing his identity and to seize such item) was an interference with the liberty of the subject (see [17] and [18] of the judgment). The court also held that the exercise of those powers did not involve the power of search, see [16] and [24]. 262.The interference was found to be justified for the reasons set out at [18]. An important consideration in that case was that the power under section 60 arose only in anticipation of violence and after a decision of a senior police officer was made to authorize the conferment of such power on the specific occasion. At the same time, Newman J also acknowledged at [17] that wearing of apparel to the head and face can be required by custom or religion and wearing of mask can be a potent means of demonstrating in a lawful manner. 263.The Judges in the present case contrasted that provision with section 5 under [185] ‑ [187] and footnote 60 of the Judgment. They, in our view quite rightly, took account of the width of the power under section 5 in assessing the proportionality of the same. 264.The modern European approach was discussed by the European Court of Human Rights in Gillan and Quinton v United Kingdom Application No 4158/05 (which were reiterated in the more recent case of Beghal v United Kingdom Application No 4755/16). Gillan and Quinton v United Kingdom, supra,concerned the stop and search power under section 44 of the Terrorism Act 2000. On the interference with the right to liberty of a person, the Strasbourg Court had these observations at [56] and [57] (omitting the footnotes):
265.On the right to respect for private life, the court discussed the relevant principles and approach at [61] ‑ [63] (omitting the footnotes):
266.Coming back to section 5 of the PFCR, even though it does not involve a power of search, the exercise of the power would inevitably impose a temporary restriction on the liberty of the person who is subject to the request. Further, the section imposes a coercive sanction to back up a request for removal of facial coverings. Another facet of section 5 is the empowerment of a police officer to remove a facial covering worn by a person if that person fails to comply with a request for such removal. Though the extent of bodily contact for removal of facial coverings may not be as substantial as a detailed search of a person, it nonetheless authorizes bodily contacts which, from the point of view of a person subject to such treatment, is unwelcome and may even be offensive. Acts and conducts on the part of a person to deflect or resist such removal could be taken as obstruction to due execution of duties and thus bring serious consequences upon such person. 267.We are therefore unable to agree that the interference occasioned by an exercise of section 5 power on the liberty of the person and the right to privacy is minimal. 268.Subject to the situations addressed by sections 3(1)(a) and (b), it is not an offence to wear facial coverings in public place. As we have already held, wearing facial coverings during a peaceful and lawful demonstrations would not be an offence. Yet section 5 confers power to the police to make a request to remove facial coverings in an entirely uneventful situation. 269.As noted by the Judges at [181] of the Judgment, there are other statutory provisions in our statute books empowering police officers to demand proof of identity for inspection under specified circumstances. We alluded to these provisions at [257] above. As explained at [182], there are good public order and immigration control justifications for such powers. 270.In our view, these statutory powers are already sufficient to address the law enforcement objectives, particularly when sections 3(1)(a) and (b) of the PFCR are in place and they could be relied upon in conjunction with the exercise of the power under section 54(1)(a) of the PFO or section 49(1) of the POO. Insofar as necessary, these provisions should be read with section 40(1) of the Interpretation and General Clauses Ordinance (Cap 1) which states:
271.In order to have meaningful inspection of a proof of identity under these provisions, the police officer must be able to compare the photograph on the identity document with the face of the subject person. Thus, if the person wears facial covering, he must remove the same to facilitate the inspection by the police officer. Failure to remove the facial covering under such circumstances is a failure comply with the demand and it would be an offence under section 49(1) of the POO. 272.Any challenges to such implied power should be laid to rest after this judgment. 273.In any event, there is no justification for such wide power as laid down in section 5 of the PFCR. In this connection we are in full agreement with the Judges’ observations at [189] of the Judgment. We cannot accept the submissions of Mr Yu that section 5 could be construed in a manner to confine its application to circumstances set out in section 54(1)(a) of the PFO or section 49(1) of the POO or section 17C(2) of the IO. There is simply nothing in section 5 itself to suggest that these provisions should be read together. The mere references to “prevent identification” under section 5(1) and verification of identity under section 5(2)(a) do not provide the basis for holding that section 5 should only be applicable in circumstances where section 54(1)(a) of the PFO or section 49(1) of the POO or section 17C(2) of the IO are applicable. 274.In Medical Council of Hong Kong v Chow Siu Shek, supra, Bokhary PJ referred to the following principle of construction at p156B:
275.Even if we were to accept that section 54(1)(a) of the PFO or section 49(1) of the POO can be regarded as dealing with comparable matters, those statutory provisions have different scopes of operation. We cannot distil any common limitations on the exercise of the powers under these statutory provisions and transpose the same to confine the scope of section 5. 276.Bearing in mind the objective for section 17C(2) of the IO as explained by the Judges at [181(3)] of the Judgment, it is plain that it cannot be regarded as dealing with a comparable matter as the PFCR the genesis of which is the public danger brought about by the recent turmoil. In this connection, we are aware that in R v Fung Chi Wood [1991] 1 HKLR 654 Bewley J held that the power under section 17C could be used for purposes unrelated to immigration control. That case was apparently not cited to the Judges. However, that was a decision before the HKBORO came into effect on 8 June 1991. Further, in light of the modern approach to the construction of the scope of statutory power by reference to its legislative purpose as discussed recently in Chee Fei Ming v Director of Food and Environmental Hygiene, supra, it is doubtful if that decision could remain good law today. As there is no appeal against the holding of the Judges in this respect and no submission has been advanced in that light, we are not going to resolve finally the applicable scope of section 17C(2). Suffice to say that we would proceed on the basis that there is no challenge before us to the view of the Judges. 277.Another general principle of construction discussed by Bokhary PJ in Medical Council of Hong Kong v Chow Siu Shek, supra, can be found at p154B:
278.The obvious contextual background for section 5 is the other provisions in the PFCR itself. However, it is plain that the CEIC did not intend to confine the operation of section 5 to cases where an offence has been committed under section 3. Otherwise, section 5(1) would be drafted differently. And there is actually no need to have section 5 to cover situations where the person is arrested or stopped for enquiry in respect of suspected commission of an offence under section 3. Such need has already been provided for under section 54(2)(a) of the PFO which provides:
279.As explained above, the power under section 54(2)(a) impliedly confers the power to demand the subject person to remove facial coverings for verification of identity. Thus, there is no need for a further power to be conferred by way of section 5 to cater for such situation. We do not see any need for this Court to apply a remedial interpretation to section 5 by reading down its scope of operation. 280.As regard the submission of Mr Yu that section 5 can facilitate early intervention against the background of public danger, for the reasons given at [261] ‑ [268] above, we do not find it proportionate to confer a wide power to the police to demand removal of facial coverings to verify the identity of a person in the absence of any ground for public order concern against the person in question. 281.Further, the conferment of such wide and unqualified power is against the concept of law providing proper safeguard against arbitrary interference of fundamental rights. The relevant principle was reiterated by the European Court of Human Rights in Beghal v United Kingdom Application No 4755/16 at [88]:
282.For the above reasons, we would dismiss the appeal by the CEIC in respect of section 5 of the PFCR. 283.In the KWH‑NoCA and KWH-RN, they contend that the Judges were wrong in rejecting Grounds 2, 3 and 4. They are effectively seeking to advance the arguments made under these grounds again in these appeals. 284.In the LKH‑NoCA, he contends that the Judges were wrong to reject Ground 3 and to hold under Ground 5B that the PFCR serves legitimate aims and the measures thereunder are rationally connected to those aims. Effectively, he is seeking to reargue those submissions that have been rejected in the court below. 285.We will deal with them in turn as follows[52]. 286.Mr Chan’s submissions in support of this ground are premised fundamentally on the provisions under sections 3 and 5 of the HKBORO. It is therefore useful to set them out first. 287.Section 5 of the HKBORO (which incorporates and is identical to ICCPR4) provides:
288.Section 3 provides:
289.Given these provisions, Mr Chan essentially submitted:
290.Mr Chan further submitted that the Judges were therefore wrong to reject this ground thinking that KWH has somehow conflated the concepts of derogation from the BOR itself and restriction of non-absolute rights under and in compliance with the BOR. He emphasised that his above arguments do not involve any conflation of concepts. His fundamental premise is that the ERO itself permits or allows such derogation to be implemented. 291.With the greatest respect, we think the Judges were clearly right in rejecting this ground. We hope we could be forgiven for not dealing with every aspect of Mr Chan’s very comprehensive and detailed submissions, as we think the proper analysis and approach to this question is this. 292.First, as pointed out by Lam VP at the hearing, it is provided expressly at section 3(1) of the HKBORO that “[a]ll pre‑existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction”. Hence, one must first seek to construe the ERO in a way to be consistent with the HKBORO. It is only when this is not possible that one should resort to section 3(2) to find that the ERO is repealed. 293.However, as rightly pointed out by the Judges at [108] of the Judgment, such a construction is not only permissible but a proper one (given section 3(1) of the HKBORO): the ERO should simply be read subject to section 5 of the HKBORO (which has been fairly accepted by Mr Yu to be the case both before the Judges as well as before this Court). 294.In other words, as explained by the Judges, the ERO should be construed as:
295.Mr Chan however argued that such a construction is inappropriate and unworkable, since the court will have to read too much into the provisions of the ERO to meet the elaborate and detailed scheme and safeguards provided under section 5 of the HKBORO (and thus also ICCPR4) to permit derogation from the protected rights. For example, Mr Chan said in relation to the requirement of a proclamation of a “public emergency”, such a construction would further require to be read into the ERO details such as to how the proclamation is to be made, what procedures are to be followed, and how many days of notice should be given to the public, etc. He therefore said the proposed construction is not only unworkable, but would also create uncertainties. 296.We are unable to accept this submission. All that section 5 of the HKBORO (and ICCPR4) has provided for are those criteria that have been set out therein before a derogation from the protected rights is permitted. The ERO is only required to be read to be subject to those broad criteria to make it consistent with section 5. All the so-called details that Mr Chan has suggested are simply not provided for by section 5 (or ICCPR4). They are therefore not specific requirements or criteria prescribed by section 5 of the HKBORO that need to be read into the ERO to make it compatible. 297.This conveniently takes us to the next reason why we find that the Judges were correct in rejecting this ground. 298.As observed by the Judges, although the ERO gives the CEIC the potential power to enact regulations that may result in derogation from the protected rights if she finds it necessary to do so, it is plain from the provisions of the ERO that they do not by themselves provide for any derogation from the protected rights as submitted by Mr Chan. 299.In the premises, the fundamental basis for the systemic challenge made against the ERO to say it is incompatible with BOR5 is incorrect in the first place. 300.If in the circumstances where a regulation enacted by the CEIC under the ERO does have the effect of derogating from any of the protected fundamental rights, that regulation will have to be subject to the dual tests of “prescribed by law” and “proportionality” as provided under section 5 of the HKBOR[55]. This however does not support a systemic challenge against the ERO to say that it is incompatible with section 5 of the HKBOR. 301.This is where and why the Judges were rightly of the view that KWH’s contentions under Ground 2 conflate with the concepts of derogation from right and the restriction of non-absolute rights under and in compliance with the BOR. 302.The ERO is therefore not impliedly repealed before 1 July 1997 for being incompatible with section 5 of the HKBORO. 303.Mr Chan’s alternative contention that the ERO should in any event be repealed after 1 July 1997 (as it is inconsistent with BL39 which incorporates ICCPR4 through the HKBORO) is in all material aspects based on the same arguments considered above. For the same reasons, we will reject it. 304.The Judges were correct in rejecting Ground 2. We would therefore dismiss KWH’s ground of cross-appeal in this respect. 305.Under this ground, both Mr Chan and Mr Pun (for LKH) [56] submitted that section 2(1) of the ERO is unconstitutional as it confers practically unlimited power on the CEIC to make regulations that are capable of severely restricting fundamental rights, but the scope of the power and the manner of its exercise is so wide and undefined that it falls foul of the legal certainty test under the prescribed by law requirement. 306.Mr Chan’s submissions can be summarised as follows:
307.Other than relying on Mr Chan’s submissions, Mr Pun further emphasised that the ERO falls foul of the prescribed by law requirement as:
308.It can be seen from the above that KWH and LKH’s fundamental complaint under this ground is that section 2(1) of the ERO does not meet the prescribed by law requirement as it is uncertain in law as to the scope of the power conferred on the CEIC and the manner in which she should exercise that power. 309.The Judges rejected this ground for the main reasons set out at [112] - [115] of the Judgment as follows:
310.Mr Chan and Mr Pun both submitted that the Judges had erred in their reasons. 311.With respect to Mr Chan and Mr Pun, we see no substance in this ground. 312.Most recently in Chee Fei Ming v Director of Food and Environmental Hygiene, supra, after reviewing a long line of authorities, this Court explained at [38] - [50] and [52] - [58] the applicable principles under the prescribed by law requirement. 313.Relevant for the present purpose concerning a complaint of lack of sufficient clarity as to the scope of the authority’s statutory power and the manner of its exercise, the principles can be summarised as thus:
314.Having regard to these principles, the Judges were clearly correct in rejecting this ground. 315.As explained by the Judges, the ERO itself does not provide for any restriction or limitation of the protected fundamental rights. This is implicitly (if not expressly) acknowledged by Mr Chan in his above submissions[58] (see the italicised words at [306] above). In any event, this must be plain from the fact that the ERO itself cannot be enforced or does not impose any penalty. 316.In the premises, given that it does not by itself restrict or limit any fundamental rights, the Judges were right to conclude at [113] - [115] of the Judgment that the ERO is not subject to the prescribed by law scrutiny as a basis of a systemic challenge. Rather, it is the actual regulation that has been enacted, and if it has the effect of restricting or limiting fundamental rights, that has to meet the prescribed by law requirement. As observed by the Judges, legal certainty “is not a notion existing in the abstract and in a vacuum” and “it is the ‘norms’ which purport directly to restrict the citizen’s freedom that must be sufficiently precise to enable the citizen to conduct himself accordingly”. 317.In this respect, Mr Yu was also correct to point out that KWH is wrong to say that “The differences between [the Judges] and [KWH] is whether a source empowering statute itself is susceptible to such a challenge [for lack of legal certainty]”. The Judges have not held as a general proposition that “a source empowering statute” can never been so challenged. Reading [115] of the Judgment in its proper context, the Judges’ ruling is directed specifically at the ERO where they rightly held that it does not purport to limit fundamental rights or restrict any freedom. 318.Mr Pun however argued that the Judges’ reasoning is wrong as the ERO even as a power conferring statute engages the prescribed by law requirement under BL39(2). 319.First, counsel contended that there is no principle of law that a discretionary power itself is not open to challenge as being in violation of fundamental rights merely because such power has not been actually exercised whether against a particular applicant or the public in general. 320.This submission is misconceived. BL39(2) provides expressly that Hong Kong residents’ rights and freedoms cannot be restricted unless prescribed by law. Hence, it is only when the individuals’ rights and freedoms are or are sought to be restricted that the prescribed by law requirement needs to be met. But as explained above, the CEIC’s exercise of discretionary power under the ERO to make a regulation is not an exercise of power that will necessarily violate any fundamental right. It is only when there is a regulation that has indeed been enacted under the ERO which provides for the restriction of fundamental rights that an individual’s relevant fundamental rights or freedoms are or are sought to be restricted. In such a case, the regulation itself has to meet the prescribed by law requirement and that would not be dependent upon whether or not the power under the regulation has in fact been exercised or not. 321.Second, Mr Pun cited three authorities to support his above contention. They are: Charles v Philips and Sealey (1967) 10 WIR 423, Herbert v Phillips and Sealey (1967) 10 WIR 435 and AG v Reynolds [1980] AC 637. 322.These authorities are distinguishable and do not help him. 323.In Charles, the Governor of St Christopher, Nevis and Anguilla made the Emergency Powers Regulations 1967 (“the Regulations”) pursuant to the Leeward Islands (Emergency Powers) Order in Council 1959 (“the Order in Council”). Charles was detained pursuant to the Regulation 3. He challenged the lawfulness of the Regulation 3. 324.Glasgow J refused the application. The Court of Appeal of West Indies Associated States allowed his appeal. However, the issue raised in the challenge that the court was concerned with is whether Regulation 3 was consistent with sections 3 and 14 of the Constitution itself. This is made clear by Lewis CJ (with whom other members of the court agreed) at p430A-B as follows:
325.The Court of Appeal held that the Regulations were invalid as (a) they were not in conformity with the Constitution, and (b) it was impossible to construe them to be in conformity with the Constitution even by way of modification, adaptation, qualification or exception. Thus, the case was not concerned with the doctrine of prescribed by law, but rather with a conflict between the empowering Order in Council and the Constitution. This cannot be an authority to support Mr Pun’s proposition that in relation to a prescribed by law analysis, the court should examine the ERO which by itself does not seek to limit or restrict any rights and freedoms. 326.Herbert was delivered immediately after Charles and was decided in the same way. As acknowledged by Mr Pun, its factual and legal background are in substance the same as in Charles. For the same reason above, this authority does not further Mr Pun’s submission. 327.Reynolds concerns another challenge by the plaintiff there (who was also arrested under Regulation 3) against the Attorney-General seeking damages for false imprisonment and compensation for unlawful detention under section 3 of the Constitution. The High Court gave judgment in favour of the plaintiff. On appeal by the Attorney-General and cross-appeal by the plaintiff as to the amount of damages, the Court of Appeal held that (as in Charles and Herbert) Regulation 3 was not in conformity with the Constitution, and therefore the Regulations were void and the plaintiff’s detention was unlawful. It dismissed the Attorney‑General’s appeal and increased the damages awarded to the plaintiff. The Attorney-General appealed to the Privy Council. 328.The Privy Council dismissed the appeal on the primary basis that on the facts of the case, there was an irresistible presumption that no reasonable grounds existed to detain the plaintiff pursuant to Regulation 3. The detention was therefore unlawful. However, relevant for the present purpose, the Privy Council indeed overruled Charles and Herbert in part and held that the Regulations could be interpreted (by way of modification, adaptation, qualification or exception) to be in conformity with the Constitution and thus the Governor did have the power to enact the Regulations under the Constitution. 329.Despite this, Mr Pun relied on this authority only to purportedly show that the Privy Council did agree in part with Charles and Herbert that, save with the remedial construction, the regulation-making power under section 3 of the Order in Council was on the face of it “not in conformity with” the Constitution[59]. Even for this limited purpose, for the same reason we have explained above in relation to Charles and Herbert, this authority again does not take Mr Pun’s submission any further. 330.Given that the ERO itself does not seek to limit fundamental rights, the question of whether it meets the prescribed by law requirement simply does not arise. Mr Chan and Mr Pun’s principal submissions about the width or unlimited scope of the ERO or lack of safeguards are therefore irrelevant under this context. 331.In the premises, KWH and LKH’s challenge against the ERO under this ground is misconceived. 332.But in any event, for the reasons we have given above under Grounds 1, 5A and B and the principles on the prescribed by law requirement we have highlighted above, the ERO cannot be said to have conferred “unfettered and unlimited” power on the CEIC and there are “no independent safeguards against abuses or excesses”. We will explain why. 333.As explained in our discussion under Ground 1 above, given the true nature of emergency regulations and the ground of public danger, very wide powers have to be given to the CEIC to address occasions of emergency or public danger which cannot be exhaustively defined in advance, and the situations which the ERO is intended to tackle with must be varied and unpredictable. It is therefore necessary for section 2(1) of the ERO to have a wide scope. 334.In this respect, a general enactment does not necessarily mean that it falls foul of the legal certainty test under the prescribed by law requirement. It has been repeatedly stated that the prescribed by law requirement does not require absolute precision or certainty. It only requires that the “core” of the norm should be sufficiently clearly formulated. 335.For this, it is illuminating to remind ourselves again the judgment of Justice Gonthier in the Supreme Court of Canada in R v Nova Scotia Pharmaceutical Society [1992] 2 SCR 606 to highlight the relationship between the scope of precision required and the need for general enactment in the modern world[60]:
336.Further, and importantly, the exercise of power under the ERO and the emergency regulations is subject to negative vetting by the legislature and judicial supervision by way of judicial review. Any eventual restriction on fundamental rights must also meet the proportionality test and the prescribed by law requirement. 337.Given the above, under a holistic analysis, the exercise of the power granted under section 2(1) of the ERO is sufficiently formulated under a “core” of the norm which is governed and guided by the “law” prescribed by legislative negative vetting, the common law and judicial scrutiny, considered against the above background and context of the ERO. 338.In other words, when the CEIC seeks to exercise her power pursuant to section 2(1) of the ERO to enact a regulation under which certain rights and freedoms would be restricted, she must exercise it in a manner that conforms with what the “law” has prescribed for to render such a restriction to be lawful, and that proper exercise of power will be supervised and checked by judicial supervision and legislative scrutiny under negative vetting as we have explained under Ground 1 above. This constitutes sufficient safeguards in the law against arbitrary interference of freedoms and rights. 339.For all the above reasons, the Judges were correct in rejecting Ground 3, and KWH and LKH fail under this ground of their cross-appeal. 340.Under paragraphs 1(2) and 3 of KWH-RN, KWH asks the court to uphold the Judgment also on the principle of legality ground. This is raised in support of both Ground 1 (to challenge the ERO) and Ground 4 (to challenge the validity of the PFCR). 341.Insofar as the principle of legality is relied on in additional support of Ground 1, we have already dealt with it above. 342.Insofar as the principle is relied on in support of Ground 4, Mr Chan’s submissions are in essence these[61]. 343.Under the principle of legality as a principle of construction, if a statute does not expressly or by necessary implication override or restrict fundamental rights, it will not be construed as doing so[62]. In this respect, necessary implication is said to be “a matter of express language and logic not interpretation”[63]. 344.Applying this principle, Mr Chan contended that:
345.We are not persuaded by these submissions. 346.Under the principle of legality, whether or not the general wording of section 2(1) of the ERO (read with the opening sentence of section 2(2)) expressly or by necessary implication gives the CEIC a wide power to enact regulations that may impose restrictions on fundamental rights and freedoms is a matter of proper construction. The authorities do not suggest as a general principle that general wording can never be so interpreted. 347.It is now well established that the court adopts purposive construction in interpreting a statutory provision, and in construing statutory provisions, the court does not merely look at the relevant words. It construes the relevant words having regard to their context and purpose. The context of the relevant statutory provision should be taken in its widest sense and will of course include the other provisions of the statute. It may also be relevant in any given case to look at the history of the relevant provision. See: Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196 at [29] per Ma CJ. 348.In our views, the general wording of section 2(1) and the opening sentence of section 2(2), when interpreted in its proper context, expressly or by necessary implication provides for the making of regulations imposing restrictions on rights and freedoms, including but not limited to the specific instances set out in sections 2(1)(a) - (n). 349.As examined and analysed under Ground 1 above, the ERO was enacted by the legislature to provide the CEIC with a wide power to enact regulations to implement measures to deal with occasions of emergency and public danger. These occasions by their own nature are wide ranging, varied and could not be exhaustively envisaged or defined at the time of the enactment of the ERO. In this context, the wide and general wording used by the legislature is therefore intended and catered by the legislature for the purpose of vesting in the CEIC all the necessary and flexible power to enact all necessary regulations to deal with those wide ranging, unforeseen and unpredictable occasions as and when they occur. 350.At the same time, as submitted by Mr Yu, it is also clear from the ERO when read as a whole that the legislature did have the imposition of restrictions on rights and freedoms in mind when enacting the ERO. Section 2(2) provides that, without prejudice to the generality of section 2(1), regulations may provide for the specific matters in sections 2(2)(a) - (n), which plainly allow the imposition of restrictions on rights and freedoms. This is reinforced by sections 3(1) and (2), which provide that (without prejudice to the powers conferred by section 2) regulations made may provide for the punishment of any offence with such penalties and sanctions. 351.In the premises, when these are properly construed against the above background and purpose, it is plain as a matter of logic that the use of the general wording in sections 2(1) and (2) was objectively intended by the legislature to give the CEIC a wide power to make regulations, which the legislature also envisaged that might impose restrictions on rights and freedoms, including but not limited to the specific instances in sections 2(2)(a) - (n). 352.For these reasons, we reject KWH’s submissions and dismiss Ground 4. 353.We allow the respondents’ appeal under Ground 1 and partially allow their appeal under Ground 5A, but dismiss the appeal under Ground 5B. In the premises, we set aside:
354.We dismiss the KWH-NoCA and KWH-RN, as well as the LKH-NoCA. 355.In sum, we uphold the constitutionality of the ERO insofar as it empowers the CEIC to make emergency regulations on any occasion of public danger. In respect of the PFCR, there is no challenge against section 3(1)(a) relating to unlawful assembly. We uphold the constitutionality of section 3(1)(b) relating to unauthorized assembly. We however hold that sections 3(1)(c) and (d), relating to public meeting and public procession respectively, and section 5 on police powers in relation to facial covering, are all unconstitutional. 356.We will invite parties’ written submissions on costs in relation to these appeals and the hearing below. The respondents shall lodge and serve their submissions (not more than five pages) within seven days from today and the applicants shall lodge and serve their submissions (not more than five pages) seven days thereafter. Unless otherwise directed, we will determine the costs on paper. 357.Lastly, we thank counsel for their assistance.
Mr Benjamin Yu SC, Mr Jenkin Suen SC, Mr Jimmy Ma and Mr Mike Lui, instructed by the Department of Justice, for the respondents in CACV 541/2019, CACV 542/2019 and CACV 583/2019 Mr Hectar Pun SC, Mr Lee Siu Him and Mr Anson Wong Yu Yat, instructed by JCC Cheung & Co, assigned by the Director of Legal Aid, and Mr Jasper Wong (on a pro bono basis), instructed by JCC Cheung & Co., for the applicant in CACV 541/2019 Ms Gladys Li SC, Mr Johannes Chan SC (Hon), Mr Earl Deng, Mr Jeffrey Tam, Mr Geoffrey Yeung and Ms Allison Wong, instructed by Ho Tse Wai & Partners, for the applicants in CACV 542/2019 and CACV 583/2019 [1] Respectively under CACV 541/2019 (on appeal from HCAL 2949/2019) and under CACV 542/2019 (on appeal from HCAL 2945/2019). [2] The undisputed background leading to the enactment of the PFCR is set out in detail in the unchallenged evidence filed by the Government. See the Affirmation of Cheung Tin Lok at [3] - [33], the Affidavit of Chui Shih Yen, Joceline at [6] ‑ [15] and [26] ‑ [30] and the Affidavit of Dr Tsui, Pui Wan Ephraem at [8] - [17]. It has been succinctly set out by the Judges at [3] ‑ [9] of the Judgment. [3] “Black-bloc” tactics is where the protestors would often appear in groups and wear black clothing with little or not distinguishable feature, and cover the whole or a substantial part of their faces with sunglasses, goggles, masks, or respirators etc. See the Affirmation of Cheung Tin Lok at [8] ‑ [9]. [4] See, in particular, the Affirmation of Cheung Tin Lok at [20] - [24] and [31]. [5] See the Affidavit of Dr Tsui, Pui Wan Ephraem at [17]. [6] The word “anti-social” refers to acting against larger social norms which, within the group, can be their own emerging group norm. It implies that the person is not really losing his self in the group, but is just following the group norm. [7] Moreover: (a) the use of inflammable liquid bombs has become more frequent and extensive, and even more so since late September 2019. On 29 September and 1 October 2019, the number of inflammable liquid bombs hurled by the protestors were respectively around 100 and over 100; (b) on 1 October 2019, a police officer was injured by protestors throwing corrosive liquid at him, causing a third degree burn; (c) on the same date, some police officers were seen viciously attacked by large groups of protestors by a range of objects and lethal weapons, and a few of them whose lives were under imminent threat had to defend themselves with firearms; (d) as at 4 October 2019, a total of 2,135 individuals have been arrested for taking part in public order events of an unlawful or criminal nature, or being involved in other unlawful or criminal activities. See the unchallenged evidence in the Affirmation of Cheung Tin Lok at [4] - [6], and the Affidavit of Chui Shih Yen, Joceline at [26] - [28]. [8] See the Affirmation of Cheung Tin Lok at [5] - [6] on the statistics and descriptions showing the significant increase and extensive use of inflammable liquid bombs by the protestors, attacks on police officers and individuals who held different views with the protestors, and the growing degree of violence and vandalism. [9] See [18] of the Decision. [10] See the relevant Press Release. [11] The current situation was described in more detail in the CE’s speech given in Chinese. See the Chinese version of the Press Release. [12] The Chinese speech explained more about the aim of making the PFCR. See the Chinese version of the Press Release. [13] Section 2 contains the definitions while section 6 provides for the time in which prosecution may be brought. [14] That is, the Public Order Ordinance (“the POO”). [15] This means $25,000: see section 113B of and Schedule 8 to the Criminal Procedure Ordinance (Cap 221) (“the CPO”). [16] “Facial covering” is defined in section 2 to mean a mask or any other article of any kind (including paint) that covers all or part of a person’s face. [17] This has the same meaning as in section 18 of the POO. [18] This has the same meaning as in section 17A(2) of the POO. [19] As meeting of no more than 50 persons, meeting in private premises with no more than 500 persons, and certain meetings in school do not have to be notified for the purpose of the POO, they therefore fall outside section 3(1)(c). [20] Public processions of no more than 30 persons and public processions not on a public highway or thoroughfare or in a public park, which do not have to be notified for the purpose of the POO, fall outside section 3(1)(d). [21] This means $10,000: see section 113B of and Schedule 8 to the CPO. [22] International Covenant on Civil and Political Rights. [23] See [13] and [37] of the Judgment. [24] As the ICCPR through the BOR is constitutionally enshrined under BL39. [25] Since section 5 of the HKBORO and ICCPR4 are of identical terms, the Judges therefore deals with this ground by reference to section 5 of the HKBORO only, which they say the analysis and reasons apply equally to the argument based on ICCPR4. See [104] of the Judgment. [26] The 4 steps are: (1) does the measure pursue a legitimate aim; (2) if so, is it rationally connected with advancing that aim; (3) whether the measure is no more than reasonably necessary for that purpose; and (4) whether a reasonable balance has been struck between the societal benefits promoted and the inroads made into the protected rights, asking in particular whether pursuit of societal interest results in an unacceptably harsh burden on the individual. [27] BOR17 and BL27. [28] BOR16 and BL27. [29] BOR14. [30] The legitimate aims being (a) deterrence and elimination of the emboldening effect for those who may otherwise, with the advantage of facial covering, break the law, and (b) facilitation of law enforcement, investigation and prosecution. See [130] of the Judgment. [31] See [152] - [157] of the Judgment. [32] Having concluded that these provisions do not meet step 3, the Judges do not find it necessary to consider step 4. However, they have expressed the view that if it is necessary to do so, they would conclude, for the same reasons, that the provisions have failed to satisfy step 4. [33] See the transcript of the proceedings of the LegCo dated 26 August 1936. [34] See, for example, (a) in respect of the GIC: section 62 of the Employment Ordinance (Cap 57), section 31 of the Import and Export Ordinance (Cap 60), section 25 of the Fire Services Ordinance (Cap 95), section 42 of the New Territories Ordinance (Cap 97), section 59 of the Immigration Ordinance (Cap 115), section 14(1) of the Town Planning Ordinance (Cap 131), section 33(1) of the Medical Registration Ordinance (Cap 161), section 7 of the Registration of Persons Ordinance (Cap 177), section 45 of the Police Force Ordinance (Cap 232), section 22 of the Customs and Excise Service Ordinance (Cap 342), section 41 of the Building Management Ordinance (Cap 344); and (b) in respect of the various Secretaries: section 14(2) of the Town Planning Ordinance (Cap 131) (Secretary for Development), section 72 of the Mental Health Ordinance (Cap 136) and section 33(3A) of the Medical Registration Ordinance (Cap 161) (the Secretary for Food and Health). [35] See for example, section 5 of the Official Languages Ordinance (Cap 5), section 69 of the Evidence Ordinance (Cap 8), section 10 of the Lands Tribunal Ordinance (Cap 17), section 45 of the Labour Tribunal Ordinance (Cap 25), section 117 of the Insurance Ordinance (Cap 41), section 15 of the Telecommunications Ordinance (Cap 106), section 101I of the Banking Ordinance (Cap 155), section 72 of the Legal Practitioners Ordinance (Cap 159), section 8 of the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189), section 32 of the Matrimonial Proceedings and Property Ordinance (Cap 192), section 10 of the Partition Ordinance (Cap 352), section 44 of the Control of Obscene and Indecent Articles Ordinance (Cap 390). [36] See for example, in respect of the CEIC, section 8 of the Prevention and Control of Disease Ordinance (Cap 599) which came into force on 14 July 2008; sections 208 and 273 of the Companies Ordinance (Cap 622) which came into force on 3 March 2014; in respect of the Financial Secretary, section 909 of the Companies Ordinance; in respect of the Secretary for Food and Health, section 7 of the Prevention and Control of Disease Ordinance; in respect of the Chief Justice, sections 233 and 269 of the Securities and Futures Ordinance (Cap 571), which came into force on 1 April 2003, section 37ZJ of the Financial Reporting Council Ordinance (Cap 588), which came into force on 1 December 2006, section 76 of the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap 615) which came into force on 8 July 2011. [37] Those non-derogable rights are set out in articles 2, 3, 4(1) and (2), 7, 12, 13, and 15 of the BOR. [38] It is not the respondents’ case that such measures include legislative measures such as emergency regulation. In other words, the measures envisaged under BL56(2) are executive or administrative measures only. [39] See BL62(2). [40] See BL60(1). [41] We observe by way of judicial notice that in tackling the current Covid-19 pandemic, the Government has invoked sections 7 and 8 of the Prevention and Control of Disease Ordinance (Cap 599) to make emergency regulations. If that Ordinance did not exist, it would appear that the Government would need to invoke the ERO: see [65(4)] above. [42] [88] of the Judgment. [43] [89] of the Judgment. [44] [90] of the Judgment. [45] [91] of the Judgment. [46] [92] of the Judgment. [47] [93] of the Judgment. [48] Nor is there any for emergency. [49] In the course of oral submissions, we invited the parties to assist us on the meaning of “public danger” for the purpose of the ERO. On reflection, we need not dwell on this aspect as it is not necessary to interpret the phrase for present purpose. The only point that we wish to make is that a definition is certainly achievable by means of statutory interpretation. [50] In the present case, apart from the LegCo Brief relating to the PFCR dated October 2019, the CE, the Secretary for Justice and the Secretary for Security explained the Government’s decision and the operation of the PFCR at a press conference on 4 October 2019; the responsible Government officials also attended and answered questions at open meetings of the LegCo Subcommittee on Prohibition on Face Covering Regulation held on 22 and 28 October, 5, 9, 12 and 18 November 2019. They have all been adduced as evidence before the court. [51] For the meaning of the principle of legality as advanced by KWH, see the court’s discussion at Section G3 below for Ground 4. [52] LKH’s contentions under Ground 5B have been addressed above at [251] - [255]. [53] That is, derogation from the rights protected under the ICCPR can only be made when there is a “public emergency”, which has to be one that “threatens the life of nation” and its “existence”, and that the public emergency has to be “official proclaimed”. [54] It may not be entirely correct to say that the existing legislations which are regarded to be inconsistent with a regulation enacted to be “repealed”. Under section 2(4), any such inconsistent provision of an enactment will only be rendered to have “no effect” when the concerned regulation made under the ERO remains in force. [55] As provided in section 5(1) of the HKBORO, the measures to derogate from the rights “shall be taken in accordance with the law”. [56] LKH also seeks to cross appeal the Judges’ rejection of Ground 3. See LKH-NoCA, at [4]. [57] BL39(2) provides: “The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless prescribed by law ...” [58] See KWH’s skeleton submissions on the cross appeal dated 16 December 2019 at [33]. [59] AG v Reynolds, supra at 655A-B. [60] These are cited in Chee Fei Ming v Director of Food and Environmental Hygiene, supra, at [56] - [57]. [61] These are in substance a rerun of the arguments made before the Judges. As mentioned above, the Judges do not find it necessary to deal with these arguments as they find them to be inconsistent with the arguments raised under Ground 1, which they have found in favour of KWH. [62] See: R v Home Secretary Ex p Simms, supra, at p131 per Lord Hoffmann; A v Commissioner of ICAC (2012) 15 HKCFAR 362 at [24] - [29] perRibeiro PJ; HM Treasury v Ahmed [2010] 2 AC 534 at [45] - [46] per Lord Hope, at [112] per Lord Walker. [63] See: R (Morgan Grenfell Ltd) v Special Commissioner [2003] 1 AC 563, 616 at [45] perLord Hobhouse. [64] Which provides “Without prejudice to the generality of the provisions of [section 2(1)]”. [65] With the exception of sections 2(2)(g) and (i) which are wide empowering provisions and thus could not be construed to necessarily imply enabling the enacting of regulations that restrict or interfere with fundamental rights. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 541/2019