Read the full judgment text of FACV 6, 7, 8 and 9 of 2020 on BabelCite. This Court of Final Appeal judgment was delivered on 21 December 2020 before Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Lord Hoffmann NPJ.
Constitutional law – emergency regulations – Prohibition on Face Covering Regulation (PFCR) – Emergency Regulations Ordinance (ERO) (Cap. 241) – 2019 Hong Kong protests – Fugitive Offenders Bill – public danger – whether ERO is unconstitutional delegation of general legislative power to Chief Executive in Council (CEIC) contrary to Basic Law arts 2, 8, 17(2), 18, 39, 48, 56, 62(5), 66, 73(1) – whether ERO authorises CEIC to make subsidiary or primary legislation – whether emergency situations require wide and flexible legislative powers – internal requirements of ERO – good faith and Wednesbury reasonableness – judicial control – negative vetting under section 34 of Interpretation and General Clauses Ordinance (IGCO) (Cap. 1) – LegCo control – section 2(3) of ERO – whether section 2(3) excludes LegCo power to amend or repeal regulations – Basic Law art 73(1) – section 2A(1) of IGCO – purposive construction – whether ERO impliedly repealed by section 3(2) of Hong Kong Bill of Rights Ordinance (HKBORO) (Cap. 383) – section 5 of HKBORO – Article 4 of ICCPR – Article 39 of Basic Law – derogation in times of public emergency – whether ERO infringes prescribed by law requirement under Article 39(2) of Basic Law – empowering legislation – principle of legality – separation of powers – rule of law – whether section 3(1)(b) of PFCR is proportionate restriction of rights to freedom of assembly, freedom of expression and privacy under BOR and Basic Law – whether sections 3(1)(c) and 3(1)(d) of PFCR are proportionate – Hysan four-step proportionality test – legitimate aim – rational connection – no more than necessary – minimal impairment – fair balance – preventative and deterrent nature of PFCR – 'black bloc' tactics – deterioration of peaceful assemblies into violence – Public Order Ordinance (Cap. 245) sections 7(1), 13(1), 17(3), 17A(2), 17A(3), 18(1) – defence of reasonable excuse under section 4 of PFCR – UN Human Rights Committee General Comment No. 37 – Kudrevičius v Lithuania – ERO held constitutional – PFCR including sections 3(1)(b), 3(1)(c) and 3(1)(d) held proportionate – applicants' appeals dismissed – Government's appeal allowed – costs ordered in favour of Government.
Legal issues: Whether the ERO is an unconstitutional delegation of general legislative power to the CEIC · Whether section 2(3) of the ERO excludes LegCo control over emergency regulations · Whether the ERO was impliedly repealed by section 3(2) of the HKBORO · Whether the ERO infringes the prescribed by law requirement under Article 39 of the Basic Law · Whether the principle of legality precludes the ERO · Whether section 3(1)(b) of the PFCR is a proportionate restriction of protected rights · Whether sections 3(1)(c) and 3(1)(d) of the PFCR are proportionate restrictions of protected rights
Outcome: Applicants' appeals in FACV 6, 7 and 8 of 2020 dismissed; Government's appeal in FACV 9 of 2020 allowed. The PFCR, including sections 3(1)(b), 3(1)(c) and 3(1)(d), is held to be constitutional and a proportionate restriction of the protected rights in question.
Cites 5 cases