Secretary for Justice v. Persons Conducting Themselves in Any of the Acts Prohibited Under Paragraph 1(A), (B), (C) or (D) of the Indorsement of Claim
Read the full judgment text of CACV 274/2023 on BabelCite. This Court of Appeal judgment was delivered on 8 May 2024.
1. In the proceedings below, the Secretary for Justice, as guardian of justice, applied for an interlocutory injunction in aid of criminal law under section 21L(1) of the High Court Ordinance (“HCO” [1] ) to restrain the Defendants [2] from committing four specified acts in connection with the song commonly known as “願榮光歸香港” or “Glory to Hong Kong” (“the Song”). His application was refused by Anthony Chan J by a decision dated 28 July 2023. [3] Hence this appeal. [4]
Cited by 2 cases · Cites 16 cases
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CACV 274/2023 & CAMP 303/2023, [2024] HKCA 442 On appeal from [2023] HKCFI 1950 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 274 OF 2023 AND MISCELLANEOUS PROCEEDINGS NO 303 OF 2023 (ON APPEAL FROM HCA NO 855 OF 2023) ____________________
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_______________ J U D G M E N T ________________ Hon Poon CJHC (giving the Judgment of the Court): 1.In the proceedings below, the Secretary for Justice, as guardian of justice, applied for an interlocutory injunction in aid of criminal law under section 21L(1) of the High Court Ordinance (“HCO”[1]) to restrain the Defendants[2] from committing four specified acts in connection with the song commonly known as “願榮光歸香港” or “Glory to Hong Kong” (“the Song”). His application was refused by Anthony Chan J by a decision dated 28 July 2023.[3] Hence this appeal.[4] A. BACKGROUND 2.Unless otherwise stated, the summary below is largely taken from the affidavit of Superintendent Margaret Wong dated 5 June 2023 (“Wong’s Affidavit”), which was accepted by the Judge and forms the evidential basis for the Secretary’s application and also this appeal. 3.As the Court of Final Appeal observed in Kwok Wing Hang v Chief Executive in Council (2020) 23 HKCFAR 518, at [1], Hong Kong, a city long regarded as safe and peaceful, experienced an exceptional and sustained outbreak of massive violent public lawlessness triggered by the legislative exercise of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill from mid‑2019 onwards. The scale and extent of events disrupting public order across the territory and the escalating violence were unprecedented and shocking. The degeneration of law and order was rapid and most alarming. The dire situation posed serious threats to national security and public order in Hong Kong. It eventually led to the implementation of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) on 30 June 2020. 4.The violent protests were mainly mobilized via internet platforms. During their height, the Song first emerged in August 2019 in the form of a video publicly accessible on a channel “Dgx Music” on the YouTube. The composer of the Song used a pseudonym “Thomas dgx yhl” and the police has so far been unable to ascertain his true identity. However, he had been interviewed by local and international media.[5] He was reported to have said that he was a full‑time musician in his mid‑twenties; that he recruited performers and other people to help him; that he wrote the Song to boost the morale of the protestors and to appeal to people’s emotions and sentiments; and that while the front‑line protestors used umbrellas, bricks, stones and petrol bombs as weapons, the Song was the most important “weapon” he could contribute to the fight. 5.Since its first publication, the Song has been widely circulated and used prominently in violent protests and secessionist activities:
6.The Song is still freely available on the internet and on various music platforms and remains prevalent. It is so notwithstanding the fact that the NSL has already applied in Hong Kong since 30 June 2020. B. THE PROCEEDINGS BELOW 7.On 5 June 2023, the Secretary commenced the present proceedings. The defendants named are “persons conducting themselves in any of the acts prohibited under paragraph 1(a), (b), (c) or (d) of the Indorsement of Claim” (“Defendants”). The relief claimed at paragraph 1 of the Indorsement of Claim is an injunction in aid of criminal law prohibiting the Defendants from committing the following acts (collectively “the 4 Acts”):
8.Paragraph 2 of the Indorsement of Claim states that without limiting the generality of paragraph 1, the injunction sought covers (a) the 32 Items; and (b) any adaptation of the Song, the melody and/or lyrics of which are substantially the same as the Song. Paragraphs 3 and 4 respectively ask for a usual ceasing order and consequential directions and/or relief. 9.Upon the request by the Court of First Instance on 8 July 2023, the Chief Executive issued a certificate under NSL 47 (“the Certificate”). There, the Chief Executive, having assessed that the 4 Acts pose national security risks and are contrary to the interests of national security,[8] certifies that the 4 Acts involve national security. Pursuant to NSL 47, the Certificate is binding on the courts. 10.By a summons dated 5 June 2023, the Secretary applied for an interim injunction in aid of criminal law in terms identical to the relief sought in the Indorsement of Claim. He did not seek a complete ban of the Song. His case was that criminal investigation and prosecution alone was ineffective in combating the criminal problems caused by the Song and the injunction in aid of the criminal law would be of high utility. Two main reasons were advanced:[9]
11.The injunction was intended to be contra mundum, or in plain language, against the world. If granted, it would bind persons who were not identifiable at the time when the injunction was made and who had not at that time infringed or threatened to infringe it but might do so at a later time. 12.By the Decision, the Judge refused to grant the injunction. His reasons may be summarised as below. He first raised concerns about the contra mundum effect of the injunction. It was exceptional to ask the court to depart from the general rule that a person should only be made subject to the court’s jurisdiction with the requisite notice of the proceedings. It was alarming that once a newcomer had breached the injunction he would find himself liable to criminal prosecution as well as contempt proceedings for the same act. If granted, the injunction would likely to be a final order because it was unlikely for the action to proceed to trial or for anyone answering the description of the Defendants to contest the action. It was therefore necessary to subject the application to stringent scrutiny with emphasis on safeguarding the fundamental rights of third persons who might be adversely affected.[10] 13.The Judge next noted that the test for an injunction in aid of the criminal law is one of necessity or utility. It must be shown that absent the injunction the Defendant’s illegal conduct could not be effectively restrained. The court must consider (1) whether it would actually provide greater deterrence than what the criminal law already imposed; and (2) the ease of enforcement against the law‑breakers.[11] With that in mind, the Judge compared the severity of criminal penalties and sanctions for contempt, querying if the targeted act was only lightly penalised under criminal law, it might seem wrong for the civil court to grant injunctions breaches of which might attract unlimited sanctions, thus doing what the legislature had not done; and if the criminal sanction was far more severe than what could be expected in contempt proceedings, like those imposed by NSL 21, whether there was any utility in granting the injunction and whether it was correct as a matter of principle for the court to pass judgment on what was effectively a serious criminal offence, without the procedural safeguards of the criminal justice system.[12] 14.After careful consideration, the Judge was unable to see how an injunction could assist the enforcement of the criminal law. He accepted that whether the 4 Acts endanger national security would best be left to the executive who might assess the risks with sensitive intelligence not available to the court. However, on the utility of the injunction, the court was in a proper position to make a judgment on it based on the evidence. After referring to the Secretary’s case on utility, the Judge observed that the evidence contained little in terms of how the injunction would reduce the prevalence of the Song; that it was unlikely for entrenched offenders to be deterred by an additional injunction;[13] and that education appeared to be a more effective tool to remedy misconceptions that the Song might be broadcast etc in whichever manner one wished with impunity.[14] 15.Noting that the evidence was that the Government required a valid court order to show the IPOs that the relevant content of the Song was a violation of the Hong Kong law, the Judge doubted if the injunction would have such effect because it only targeted the use of the Song for unlawful acts.[15] He further reasoned that since the IPOs should be aware of their duties to act within the law and should not act in a way to aid and abet the commission of offences by others, it was difficult to understand how the injunction might add to the deterrence of the criminal law.[16] 16.The Judge next referred to the conflicts and inconsistencies of the injunction with the relevant criminal laws; such as the uncertainty as to how any enforcement action in the civil domain against breaches of the injunction would operate compatibly and coherently with the requirements mandated in the criminal regime under the NSL;[17] the civil court being called upon to pronounce whether a party had committed acts in breach of NSL 21 when the same legal and factual questions would have to be determined in criminal proceedings against the same party;[18] the disparity between the time limits for prosecution of the offence under the NAO and criminal contempt;[19] and double jeopardy.[20] 17.Finally, the Judge observed that, as the Secretary recognized, the right to freedom of expression is engaged. He referred to the “chilling effects” of the injunction, that is, innocent parties not meant to be targeted by the injunction, and conducting their lives as reasonable (not unduly sensitive) lay persons, feel nonetheless dissuaded or compelled to refrain from lawful and constitutionally protected conduct that they would otherwise wish to pursue, for fear of bearing the severe consequences of breach of the injunction if they are mistaken as to the precise scope of legal prohibition. After analysis, he was satisfied that the injunction met the four‑stage proportionality test laid down in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372.[21] He would have granted the injunction had he been satisfied that it was of real utility and there existed no conflict with the criminal law. C. MAIN ISSUES 18.This appeal raises three main issues:
The answers to these issues will become apparent in the discussion in Part D. D. PROPER APPROACH 19.Section 21L(1) of the HCO provides:
As section 21L(1) confirms and restates the court’s jurisdiction to grant injunctions in equity, the present application in substance invokes the court’s equitable jurisdiction to grant injunctions in aid of the criminal law, specifically the NSL and the NAO, for the purpose of safeguarding national security in the HKSAR. Since it is the first application of its kind, it falls on us to lay down the approach by which the court navigates such unchartered water in a principled manner. D1. Some first principles 20.Recently, in Wolverhampton City Council & Others v London Gypsies and Travellers & Others [2023] UKSC 47, the UK Supreme Court addressed the question whether (and if so, on what basis, and subject to what safeguards) the court has the power to grant a newcomer injunction. In a seminal judgment, the Supreme Court comprehensively reviewed the court’s jurisdiction to grant injunctions and traced the developments over the years leading to newcomer injunctions.[25] The following first principles as reaffirmed by the Supreme Court are pertinent:
21.At [22], the Supreme Court summarised the developments of the jurisprudence thus:
In short, the developments underscore the adaptive flexibility inherent in the equitable jurisdiction which enables the court, so long as it acts in accordance with established principles or any logical extension of them, to grant injunctions in new circumstances as justice and convenience dictate. 22.The UK Supreme Court also laid down important principles for newcomer injunctions, which we will discuss at Part D2.5 below. D2. Contextual considerations 23.Like any judicial discretion, the jurisdiction to grant injunction is context‑driven. Here, the contextual considerations necessitate a more thorough examination of five specific aspects of the injunction sought. D2.1 An injunction in aid of criminal law 24.The first obvious aspect is that it is an injunction in aid of the criminal law. 25.Applications to seek the assistance of the civil court in aid of the criminal law is a comparatively modern development: Gouriet v Union of Post Office Workers [1978] AC 435, per Lord Wilberforce at p 481C; Stoke on Trent City Council v B & Q [1984] AC 754, per Lord Templeman at p 776A‑F, the two leading cases on this area of the law.[26] Gouriet concerned the question whether a private citizen had any locus to apply for an injunction to enforce the criminal law when the Attorney General refused to give consent to relator proceedings. In answering the question in the negative, the House of Lords laid down important general principles on the use of civil injunctions in aid of the criminal law. B & Q and the line of authorities to follow saw an extension of this jurisprudence to cases in which local authorities applied for injunctions to restrain persistent breaches of local bye‑laws: see for example, City of London Corp v Bovis Construction Ltd [1992] 3 All ER 697;[27] Portsmouth City Council v Richards [1989] 1 CMLR 673; Guildford BC v Hein [2005] BLGR 797; and Birmingham City Council v Shafi, [2009] 1 WLR 1961. 26.It is unanimously stressed in the authorities that the power to grant injunctions in aid of the criminal law must be exercised with great caution. There are three overlapping primary reasons:
27.In Bovis, in the context of a local authority seeking to enforce the criminal law by civil injunctions, Bingham LJ, after reviewing the earlier authorities including Gouriet and B & Q, stated at p 714g‑j three guiding principles:
28.Those principles were applied in subsequent cases while this jurisprudence continued to develop. In Richards, Kerr LJ, after reviewing the authorities including Bovis, expressed at [38] the broad test to be:
By asking if the public interest purposes of the legislation are effectively achieved, the test has to some extent broadened the principles summarized by Bingham LJ: see Hein, per Waller LJ at [75]. Waller LJ also observed at [77] that Kerr LJ had cited with approval Millet J’s judgment in Wychavon District Council v Midlands (Special Events) Ltd (1987) 86 LGR 83, at 87, that if a local council has good grounds for thinking that in any given case compliance with the law will not be secured by prosecution, it is entitled to apply for a quia timet injunction. That said, while the cases since Bovis suggest a somewhat broader approach, the essential principles remain those summarized by Bingham LJ: Shafi, per Sir Anthony Clarke MR and Rix LJ at [33] ‑ [36]. 29.In contrast to the criminal law, the injunction is essentially preventive in nature. As Sir Martin Nourse in Hein, at [72], explained:
30.The categories of cases where an injunction in aid of the criminal law may be granted are not closed. In Richards, Kerr LJ at [45] and [46] identified from the authorities the two broad categories of cases in which civil injunctions in aid of the criminal law had been granted:
However, his Lordship at [47] emphasized that the two categories are no more than illustrations in different contexts of the broad test he had referred to (see [28] above). It means that the court may grant injunction in aid of the criminal law when new circumstances so warrant. This reflects the width and flexibility of the equitable jurisdiction in granting injunctions. 31.The Secretary has to ensure that it is in the public interest to seek the civil court’s assistance. In Gouriet, Lord Diplock at p 499C‑D emphasized that those matters referred to at [26(1)] may be properly taken into account by the Attorney General in determining whether the public interest is likely be best served by resorting to this exceptional procedure for enforcing the criminal law. At p 481F‑H, Lord Wilberforce listed some other policy considerations that the Attorney General has to take into account, including whether the law will best be served by the threat of the preventive action, and whether the injunction is likely to be effective or may it be futile. 32.As seen, whether the legislation which the injunction seeks to aid intends criminal proceedings to be the primary means of enforcement or whether criminal proceedings will adequately achieve its public interest purpose are relevant considerations. Put differently, that legislation assists in informing if and how the court should exercise the discretion. This leads to the second aspect of the injunction sought. D2.2 For safeguarding national security in the HKSAR 33.What the injunction seeks to enjoin is not ordinary criminal offences. They are offences endangering national security. NSL 21 offences are self‑evidently offences endangering national security. So are offences under section 10 of the Crimes Ordinance: HKSAR v Ng Hau Yi Sidney (2021) 24 HKCFAR 417, at [30]. In respect of section 7 of the NAO, as the Judge rightly observed, insulting the national anthem in the manner proscribed is a crime aimed at arousing sentiments for the independence of Hong Kong, and thus also endangers national security.[29] 34.The mandates in the NSL for safeguarding national security critically informs how the court should approach the injunction sought. This requires some elaboration. 35.The HKSAR is established in accordance with Article 31 of the Constitution of the PRC to uphold the national unity and territorial integrity and to maintain the prosperity and stability of Hong Kong: see the Preamble to the Basic Law. Those are the primary purposes of the “one country, two systems” policy. Giving them effect, BL 1 declares that the HKSAR is an inalienable part of the PRC; and BL 12 stipulates that the HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government. 36.The NSL is likewise enacted for the same primary purposes of, among others, ensuring the resolute, full and faithful implementation of the “one country, two systems” policy under which the people of Hong Kong administer Hong Kong with a high degree of autonomy, safeguarding national security and maintaining prosperity and stability of the HKSAR: NSL 1. 37.NSL 2 refers to BL 1 and BL 12 as the lynchpin for safeguarding national security in the Region thus:
In so prescribing the constitutional order of the HKSAR, BL 1, BL 12 and NSL 2 underscore the general duty of the Region to safeguard national security: Lai Chee Ying v Secretary for Justice [2023] 3 HKLRD 275, per Poon CJHC at [28]. 38.The NSL adopts a multi‑pronged approach to fleshing out that general constitutional duty of the Region to safeguard national security:
39.Focusing on the court’s duty, NSL 3(3) provides:
40.As to how the court should carry out the mandate in NSL 3(3), the Court of Final Appeal emphasized in Secretary for Justice v Timothy Wynn Owen KC (2022) 25 HKCFAR 288, at [33]:
41.Significantly, the Court of Final Appeal went on to point out that, in relation to the context of that case, namely, ad hoc admissions of overseas counsel, where national security considerations properly arise, such considerations are plainly of the highest importance to be taken into account. The same must be equally true in other contexts where the court’s discretion is invoked, such as the present. The court must give the national security considerations raised by the Secretary such weight as is commensurate with their highest importance. 42.Further, NSL 8 specifically mandates the court to apply the NSL and all local laws for prevention, suppression and punishment of offences endangering national security as follows:
43.In making that mandate, the legislative intent of NSL 8 is clear. The NSL and all existing local laws, including both criminal law and civil law, work in tandem to safeguard national security. The criminal law alone, including prosecution of offences endangering national security under the NSL or local criminal laws such as those in the present case, NSL 21 or sections 9 and 10 of the Crimes Ordinance, is not adequate to achieve the immensely important public interest of safeguarding national security. Put differently, the criminal law including prosecution is not intended to be the only means of enforcement for safeguarding national security. Where necessary and appropriate, the civil law must come to aid. 44.Most relevantly, the court under the mandate of NSL 8 must fully enforce the equitable jurisprudence in granting injunctions in aid of the criminal law for safeguarding national security because such injunctions, as seen, being preventive in nature, pursue the aim of preventing acts or activities endangering national security. This should be firmly borne in mind when considering the court’s approach to applications like the present. 45.The general principles for injunctions in aid of the criminal law, which originate from non‑national security contexts, when applied for safeguarding national security, are necessarily subject to the above mandates in the NSL. Further, in recognition of the legislative intent that the NSL is to operate in tandem with local laws, seeking convergence, compatibility and complementarity, subject to NSL 62 which gives priority to the NSL for inconsistencies (HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, at [29]), they must evolve, as they are so capable of in equity, to give full effect to those mandates. The general principles thus developed may be stated as follows. 46.First, although the NSL does not intend it to be the only means of enforcement, the criminal regime, especially the NSL itself, covering investigations, pre‑trial applications, prosecutions, and penalties, is evidently the most powerful legal means for preventing, suppressing and punishing acts and activities endangering national security. In contrast, a civil injunction in aid of the criminal law primarily aims at one particular aspect, that is, preventing such acts and activities. It complements the criminal regime in that regard as a supplementary tool. 47.Second, that being its essential nature, a civil injunction should be granted only if its assistance in terms of prevention of the particular acts or activities endangering national security is necessary to help the criminal law achieve its public interest purpose of safeguarding national security. Implicit in necessity is utility. For if the injunction is of no or little utility, it will provide no or minimal assistance to the criminal law, rendering it unnecessary. However, utility is not the only criterion although it is no doubt a weighty consideration. The overall question remains whether the injunction, with its utility and playing its complementary role, is necessary to assist the criminal law for safeguarding national security. 48.Under this necessity test, mere infringement of the criminal law is not enough because infringement alone does not necessarily mean that the criminal law is inadequate to achieve its public interest purpose of safeguarding national security. On the other hand, it does not require proof of certainty that nothing short of the injunction would achieve the purpose or that the injunction would provide greater deterrence than what the criminal law has already provided, as the Judge decided. That is too high a threshold for the injunction, as a supplementary tool to complement the criminal law, to meet. Further, it may unduly fetter the court’s power to grant the injunction in cases when justice and convenience clearly so warrant, contrary to the mandate in the NSL that the equitable jurisdiction to grant injunctions should be applied in full for safeguarding national security. 49.Referring to NSL 3 and NSL 8, Mr Benjamin Yu, SC, for the Secretary,[31] submits that the overall approach is to grant the injunction unless the court considers that it would not have any effect in preventing, suppressing or punishing the act or activity endangering national security in question. Put another way, counsel argues, insofar as the court accepts that the injunction may contribute in some way towards preventing, suppressing or punishing the act or activity endangering national security, in order to discharge its duty to fully enforce the law in discharge of its constitutional duty to safeguard national security, the injunction ought to be granted. That approach focuses solely on utility. It does not ask the central question if it is necessary to invoke the assistance of the injunction, thereby missing the fundamental point that it is a supplementary tool to complement the criminal law in achieving its public interest purpose of safeguarding national security. Moreover, it appears to be a wholesale displacement of the well‑established common law principles for injunctions in aid of the criminal law. Such a drastic step is unwarranted when those principles can be suitably developed to give effect to the mandates in the NSL for safeguarding national security. 50.Third, necessity of the injunction is a context‑specific question, entailing a careful evaluation of all the relevant circumstances. Since circumstances vary, the categories of cases where the injunction may be granted are not closed. Based on the authorities discussed above, it can be readily inferred that the injunction is necessary:
51.We turn next to the question of deference. 52.The concept of judicial deference to the executive’s evaluative assessment on national security is well‑established at common law. For more recent authorities, see CCSU v Minister for Civil Service [1985] AC 374; Secretary of State for the Home Department v Rehman [2003] 1 AC 153; R (Begum) v SIAC [2021] AC 765. It is based on both constitutional and institutional reasons. For constitutional reasons, it is the executive (and not the court) which has the responsibility for assessing and addressing risks to national security. The court is tasked to uphold the rule of law, administer justice and adjudicate disputes independently. In exercising its judicial function, the court must recognize the constitutional boundaries between executive, legislative and judicial power. It reflects the allocation of different functions to the executive and the court under the constitutional design. For institutional reasons, the executive (and not the court) has the requisite experience, expertise, resources and access to information and intelligence which make it best suited to making evaluative judgments on those matters. The court’s expertise lies in the law, interpreting and applying the law, and resolving constitutional and legal issues in accordance with the law. It is a recognition of the differences in institutional capacities and expertise possessed by the executive and the court. 53.When national security is at stake, the executive’s decision process to address the risks ordinarily takes two steps: (1) making an assessment based on the relevant national security considerations; and (2) devising measures in response. The counter-measures necessarily vary according to the needs and circumstances, including the nature, level and extent of the risks involved, the effectiveness of the means available to address them; and the acceptability or otherwise of the consequent danger. These are all evaluative judgment incapable of objectively verifiable assessment best left to the executive. As Lord Parker of Waddington in The Zamora [1916] 2 AC 77, at p 107, quoted by Lord Scarman in CCSU at p 405E, famously observed: “Those who are responsible for the national security must be the sole judges of what the national security requires”. 54.That is what the Government did in the present case. The Chief Executive first by the Certificate made the assessment that the 4 Acts involve national security as they pose national security risks and are contrary to the interests of national security. The executive next assessed and decided that the measure of a civil injunction in aid of the criminal law would be of utility and indeed necessary to reduce or eliminate the risks posed to national security by the 4 Acts. 55.The same two‑step approach was also adopted by the UK Government in A v Secretary of State for the Home Department [2005] 2 AC 68. There, following large scale terrorist attacks in the USA on 11 September 2001, the UK Government concluded that there was a public emergency threatening the life of the nation within the meaning of article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms. That formed the assessment at the first step. Accordingly, it made the Human Rights Act 1998 (Designated Derogation) Order 2001, designating the UK’s proposed derogation, under article 15, from the right to personal liberty guaranteed by article 5(1) of the Convention, as scheduled to the Human Rights Act 1998, and, by section 23 of the Anti‑terrorism, Crime and Security Act 2001, provided for the detention of non‑nationals if the Home Secretary believed that their presence in the United Kingdom was a risk to national security and he suspected that they were terrorists who, for the time being, could not be deported because of fears for their safety or other practical considerations. The promulgation of the measure was made at the second step. 56.As both the assessment made at the first step and the counter‑measure devised at the second step are matters of judgment and policy entrusted to the executive, the court, in adjudicating disputes arising from or involving them, will give deference to the executive’s decision in each of the two steps. This gives rise to two related issues. For each of the two steps: (1) what is the appropriate extent of judicial deference to be given to the executive’s decision; and (2) in light of the deference given, what is the judicial role, if any, in examining the executive’s decision. 57.In respect of the first step, as in the present case, when the Chief Executive issues a certificate under NSL 47 certifying that an act involves national security when that question arises in the adjudication of a case, that certificate is binding on the court. The court must fully accept the assessment in the certificate. That is deference in its absolute sense. If the assessment is made by the executive by some other means, as noted at [41] above, the court will give great deference to it as is commensurate with its highest importance. Similarly, in A, the majority of the House of Lords held that great weight was to be accorded by the court to the assessment by the UK Government that there was a public emergency threatening the life of the nation within the meaning of article 15 of the Convention because it was a judgment pre‑eminently political in character entrusted to the executive and Parliament: see in particular, Lord Bingham at [29]. 58.In respect of the second step, in CCSU, the House of Lords held that because of deference, once the factual basis is established that national security is a factor relevant to the determination of a case, the court will accept the opinion of the executive on what is required to protect it, unless no reasonable executive could have come to such a conclusion in the circumstances of the case; and that this is not abdication of judicial duties but is an acknowledgement that the court is not in a position to substitute its opinion for the opinion of those responsible for national security: per Lord Fraser at p 402C; per Lord Scarman at pp 404E, 405E, 406B‑G; per Lord Diplock at p 412F; and per Lord Roskill at p 420E. On the facts, their Lordships held that it was for the executive to decide whether the requirements of national security outweighed those of fairness for the consultation process with trade unions. Giving deference to the executive, the court approached it as a matter of evidence to consider if the factual basis of the decision had been established. 59.In Rehman, the Home Secretary refused the appellant’s application for indefinite leave to remain in the UK and gave him a deportation notice on the ground that his association with an organization involved in terrorist activities in the Indian subcontinent. Lord Hoffmann at [50] said that whether something is or is not in the interests of national security is not a matter of judicial decision but is entrusted to the executive. He observed at [53] that the decision as to whether support for a particular movement in a foreign country would be prejudicial to UK’s national security might involve delicate questions of foreign policy. They were all within the competence of responsible ministers and not the court. The court was not entitled to substitute its own view for that of the decision‑maker on questions of pure expediency. At [54], he listed three functions of the court in national security cases. First, the court must ensure that the factual basis for the executive’s opinion that the decision is in the interests of national security is established by evidence. Second, the court may reject the executive’s opinion on the ground that it is one which no reasonable minister can in the circumstances reasonably have held. Third, where the issues do not lie within the exclusive province of the executive.[32] For such issues, he gave as an example the question as to whether deporting someone would infringe his fundamental right against torture or inhuman treatment, over which question the executive has no constitutional prerogative. 60.Based on the above authorities, Mr Yu submits that the executive’s decision based on national security considerations is not immune from judicial scrutiny in that there must be evidence to prove that, in fact, such a decision was truly based on national security considerations. But once this fact has been proved, the court will not substitute its own views on what is required in the interests of national security, or what action is needed to protect such interests, such as an injunction in the present case, unless it is one that no reasonable executive authority could have made. 61.We agree but subject to one important caveat. As seen from the third judicial function outlined by Lord Hoffmann in Rehman at [54], where an issue arising from the measure adopted by the executive in combating national security risks does not lie within its exclusive province, the executive enjoys no constitutional prerogative. In discharging its judicial function, the court will give appropriate deference to the executive but will make its own judgment on the issue as required. The authorities show that there are at least three areas where the court has been held to be qualified to make its own judgment while giving the executive deference. They involve issues with constitutional or legal nature or content:
62.In so performing its judicial role, the court does not cross the constitutional boundary and trespass into the province of national security exclusively entrusted to the executive. Nor does it attempt to substitute its view over the executive’s for what national security interests best require. On the contrary, the court is very much aware of the heavy burden resting on the Government to protect national security and all who live in the HKSAR. The court is also acutely conscious that the Government alone is able to evaluate and decide what counter‑measures are needed and what steps will suffice. The court is neither equipped to make such decisions nor charged with that onerous responsibility. Hence the court must give appropriate deference to the executive as primary decision maker. But at the same time, when constitutional or legal issues arise, under the constitutional design of the Region, it is the function of the court, and not the executive, to resolve them: see A, per Lord Nicholls at [79] ‑ [80]; per Lord Bingham at [29]. 63.Here, the issue is whether an injunction is necessary to aid the criminal law in addressing the national security risks. Since an injunction is a form of judicial remedy which only the court can grant, that issue does not lie within the exclusive province of the executive. Rather, it is eminently a legal question for the court, and the court alone, to decide. The court will have to make its own judgment guided by the approach and the principles as expounded in this judgment, while giving considerable deference to the executive’s decision to invoke the court’s jurisdiction. In answering the question, the court no doubt bears firmly in mind its constitutional duty to safeguard national security and the mandate in the NSL to deploy the equitable jurisdiction to grant injunctions in full to safeguard national security. D2.3 Concerns of potential unfairness in contempt proceedings 64.The third aspect of the injunction also arises from how it is going to work in tandem with the NSL for safeguarding national security. 65.As noted, cautions had been expressed in the authorities on perceived unfairness arising from contempt proceedings and criminal proceedings involving the same facts.[34] This explains why the court must exercise great caution before granting the injunction. Echoing those cautions and accepting the submissions of Mr Abraham Chan SC, amicus curiae,[35] the Judge concluded that there are conflicts and inconsistencies between the injunction and the NSL regime that the former would not operate coherently with the latter. With respect, and despite Mr Chan’s submissions to the contrary, we have difficulty in agreeing with the Judge. 66.As a general proposition, the perceived unfairness is inherent in any injunction granted in aid of the criminal law. However, that alone would not render the contempt proceedings incompatible or incoherent with the criminal regime. Otherwise, no such injunction could ever be granted. So as a matter of principle, the perceived unfairness per se is not a ground for refusing to grant the injunction. 67.It is settled that contempt proceedings are distinct from criminal proceedings although they may arise from the same facts: Director of Public Prosecutions v Tweddell [2002] 2 FLR 400, per Latham LJ at [14]. Contempt proceedings are founded on the inherent jurisdiction of the court to enforce its orders with the primary purpose of preventing interference with the due administration of justice, which is different from criminal proceedings for maintenance of law and order. Mr Chan submits that civil contempt had been historically regarded as a common law misdemeanor. As such, committal proceedings could potentially be regarded as prosecution in the NSL context. He further argues that offences endangering national security in the NSL cover contempt proceedings in relation to violation of the injunction. However, it is well established that given the clear distinction between contempt proceedings and criminal proceedings, both in terms of jurisdiction and procedure, the former are not criminal prosecution as such: Chu Kong v Sun Min (2022) 25 HKCFAR 318, at [67]. 68.Referring to the civil nature of contempt proceedings (Secretary for Justice v Cheung Kai Yin [2016] 4 HKLRD 367), Mr Chan submits that the contemnor would be deprived of the procedural safeguards in the NSL criminal regime. However, the court, acutely mindful of the serious consequence that an alleged contemnor is facing, will ensure that his right to a fair trial is fully protected at every stage of the contempt proceedings. 69.In principle, contempt proceedings should be dealt with swiftly and decisively. On the other hand, the court has a discretion to adjourn contempt proceedings pending the outcome of the criminal proceedings where it is satisfied that there would otherwise be a real risk of prejudice which might lead to injustice. In an extreme case, the court may even stay either the contempt proceedings or criminal proceedings. See M v M (Contempt: Committal) [1997] 1 FLR 762, per Lord Bingham at p 764B-D; Barnet London Borough Council v Hurst [2003] 1 WLR 722, per Brooke LJ at [33]. These safeguards minimize any real risk of prejudice that an offender may face in two sets of parallel proceedings, and address any concern about the impression as regards the proper and fair administration of justice by the Secretary bringing both proceedings against the same person for precisely the same circumstances. 70.Further, in terms of punishment for contempt, it is well‑established that the court will avoid punishing the offender twice for the same events: Hale v Tanner (Practice Note) [2000] 1 WLR 2377, per Hale LJ (as she then was) at p 2381. Contempt proceedings are ordinarily dealt with first, which would ensure that, if proved, the contemnor would be punished before any sentence in parallel criminal proceedings: Secretary for Justice v Chan Po Hong [2022] 5 HKLRD 185, per Coleman J at [67]. In Slade v Slade (CA) [2010] 1 WLR 1262, Wall LJ at [35] ‑ [38] identified three guiding principles for punishing the contemnor:
These principles ensure that the contemnor is punished for the contempt and not the criminal aspect of the same conduct and the sentence is commensurate with the severity of the contempt. 71.Turning to procedure, the Judge accepted Mr Chan’s submission that the court must be satisfied as to the compatibility and workability of the civil process in enforcing the injunction as regards the features of the NSL regime that he identified. Noting some differences in procedure, the Judge doubted if contempt proceedings would operate compatibly and coherently with the procedural requirements mandated by the NSL.[36] However, by their very nature and as prescribed by Order 52 of the Rules of the High Court,[37] contempt proceedings must be conducted under different rules and procedure from those prescribed by the NSL. Seeking compatibility between two different sets of rules and procedure designed for different purposes is by definition quite impossible. More importantly, it misses the mark. The real question to ask is whether contempt proceedings would, in substance and not as a matter of procedure, work compatibly with the NSL regime for safeguarding national security. 72.The Judge highlighted two specific areas as examples of the purported conflicts or inconsistences:
73.For the above reasons, the Judge’s finding of conflict or inconsistency that would render it inappropriate to grant the injunction cannot be supported. D2.4 Potentially engaging the right to freedom of expression 74.Relating to the judicial function of the court discussed at Part D2.2 above is the fourth aspect of the injunction, namely, it may potentially engage the fundamental right to freedom of expression. We used the word “potentially” advisedly. It is because strictly speaking, the right to free expression is not or cannot possibly be engaged by the 4 Acts that the injunction seeks to enjoin. For the right is not a licence to commit any criminal offence, let alone the 4 Acts. However, as the Judge rightly observed, potential “chilling effects” as described above, though not intended by the injunction, may arise.[40] 75.Under both the Basic Law and the NSL, the court has the duty to ensure that the injunction does not unjustifiably interfere with that right. NSL 4 provides that fundamental rights guaranteed under the Basic Law and the Hong Kong Bill of Rights Ordinance shall be protected in accordance with the law. Its legislative intent is to apply the constitutional principles developed at common law under BL 39 and BOR 16 on restricting fundamental rights for the protection of national security, such as legality and proportionality tests, to determine if any measure engaging fundamental rights is justified: HKSAR v Tam Tak Chi [2024] HKCA 231, at [103] ‑ [111]; see also R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2015] AC 945, per Lord Sumption JSC at [34]. 76.Thus, as a general proposition, if an injunction in aid of the criminal law for safeguarding national security engages a fundamental right, the court must scrutinize it to see if it is constitutionally justified. While the exercise depends on the actual circumstances, three obvious general points can be made:
77.The Judge found that subject to utility, the injunction satisfied the proportionality test. We disagree with his view on utility but otherwise agree with his analysis and conclusion on proportionality. As is entirely consistent with the Secretary’s stance throughout that he does not seek to ban the Song per se but only targets the 4 Acts, Mr Yu fairly accepts that the injunction should contain exceptions to make it crystal clear that legitimate acts and activities in connection with the Song will not be prohibited. D2.5 With contra mundum effect binding on newcomers 78.The fifth aspect of the injunction is its contra mundum effect. For it to be truly effective, the injunction applies to everyone in Hong Kong. It binds not only the Defendants but also “newcomers”, that is, persons who are not parties to the proceedings. They are neither the Defendants nor identifiable, and who have not yet committed or threatened to commit the prohibited acts, but may do so in the future. 79.In this regard, Mr Chan draws our attention to the perceived lack of opportunity for a non-party to be heard and make contrary representations prior to being made subject to the injunction, and possible liability for contempt irrespective of whether he knows of its contents when it has been served by alternative means. His submissions largely echo the Judge’s concerns summarized at [12] above. 80.In Wolverhampton, after reviewing the authorities of the lower courts, some of which support the Judge’s and Mr Chan’s concerns, such as Canada Goose UK Retail Ltd v Persons Unknown [2020] 1 WLR 2802 (CA), the UK Supreme Court clarified the law in relation to newcomer injunctions and authoritatively put them on a firm juridical basis in equity. For present purposes, the following main points made by the Supreme Court will suffice:
81.These latest authoritative statements of principle have adequately addressed the concerns raised by the Judge and Mr Chan on the contra mundum effect of the injunction. Provided that there are sufficient safeguards in the injunction to enable any person affected by it or a newcomer to apply to the court for setting aside, variation, clarification or to make other representations as appropriate, its contra mundum effect alone is not a ground for not granting it. 82.Further, as Mr Yu agrees, since it is in substance an ex parte injunction, the Secretary, as the applicant discharging his duty of full and frank disclosure, should draw the court’s attention to any real points based on the available evidence that may affect the court’s exercise of the discretion, such as the potential engagement of the right of free expression in the present case. D2.6 Summary 83.Drawing the above considerations together, the court’s approach to the injunction sought can be shortly stated as follows. 84.First, given its complementary nature, a civil injunction should be granted only if its assistance in terms of prevention of the particular acts or activities endangering national security is necessary to help the criminal law achieve its public interest purpose of safeguarding national security. Necessity does not require proof of certainty that nothing short of the injunction would achieve the purpose or that the injunction would provide greater deterrence than what the criminal law has already provided. Utility of the injunction is a weighty but not conclusive factor in the overall evaluation of its necessity. 85.Second, in deciding if the injunction should be granted:
86.Third, if the injunction engages any fundamental right, the court has to be satisfied that the restriction imposed is constitutionally justified. The terms of the injunction should be clear and certain; should not be wider than the criminal law; and should not constitute any disproportionate encroachment of the right. 87.Fourth, as a newcomer injunction, it should contain clear safeguards to enable any person affected by it or a newcomer to come to the court for setting aside, variation, clarification or to make other representations as appropriate. Further, as an ex parte injunction in substance, the Secretary as applicant should draw the court’s attention to any material points on the available evidence that may affect the court’s exercise of the discretion. E. THE PRESENT CASE 88.The Judge refused to grant the injunction mainly because he considered that it was of no real utility and conflicted with the criminal law. He also had concern over the contra mundum effect of the injunction. For the analysis and reasons given above, we are of the view that the Judge’s findings and reasoning on the utility of the injunction, its compatibility with the criminal law and its contra mundum effect, and accordingly his exercise of discretion cannot be supported. We do not consider it necessary to dwell on the complaints that Mr Yu has raised against the Judge’s reasoning, except this. Although we differ from the Judge, we do not accept the criticism that the Judge failed in his duty to safeguard national security merely because he did not adopt the test or approach that counsel advocated and, for the reasons that he gave, came to his own conclusion not to grant the injunction. 89.In exercising our discretion afresh and adopting the proper approach, we are satisfied that an injunction should be granted. 90.The composer of the Song has intended it to be a “weapon” and so it had become. It had been used as an impetus to propel the violent protests plaguing Hong Kong since 2019. It is powerful in arousing emotions among certain fractions of the society. It has the effect of justifying and even romanticizing and glorifying the unlawful and violent acts inflicted on Hong Kong in the past few years, arousing and rekindling strong emotions and the desire to violent confrontations. Further, in the hands of those with the intention to incite secession and sedition, the Song can be deployed to arouse anti‑establishment sentiments and belief in the separation of the HKSAR from the PRC. 91.Moreover, as is the case of any national anthem, the national anthem of the PRC is a symbol and sign of the State. It represents the country with her sovereignty, dignity, unity and territorial integrity and is the identity of the Chinese people. Misrepresenting the Song as the national anthem of the HKSAR in the manner proscribed is both an offence under the NAO and, importantly too, constitutes an act endangering national security as it misrepresents Hong Kong as an independent state or arouses the sentiments for the independence of Hong Kong. 92.By the Certificate, the Chief Executive has assessed that the 4 Acts pose national security risks and are contrary to the interests of national security. The Certificate is binding on the court. Further, as explained above, the same conclusion can be reached on the evidence. 93.Plainly, there is an immediate need to stop the 4 Acts. However, the Song is still freely available on the internet and remains prevalent. Having regard to the reasons advanced on behalf of the Secretary at [10] above, we accept the assessment of the executive that prosecutions alone are clearly not adequate to tackle the acute criminal problems and that there is a compelling need for an injunction, as a counter-measure, to aid the criminal law for safeguarding national security. 94.First, the past and threatened conduct of the Defendants as seen in the wide-spread, persistent flouting of the criminal law before and especially after the NSL came into force, exacerbated by the misconceptions harboured by many members of the public about the unlawful activities in connection with the Song, clearly shows that the criminal law alone will not achieve the public interest purpose of safeguarding national security. The injunction must come to aid in terms of enhancing prevention by providing additional deterrence to actual or potential offenders and dispelling the misconceptions held by the public. 95.Second, such is the seriousness of the criminal problems that the court must intervene immediately to prevent the continuation of the prevailing unlawful state of affairs; otherwise any further damage to national security would likely to be irreparable. 96.Third, an injunction is necessary to persuade the IPOs to remove the problematic videos in connection with the Song on their platforms. In this connection, a useful analogy may be drawn from internet blocking orders. 97.As observed in Wolverhampton, at [49], an internet blocking order is a new type of injunction granted in the absence of a cause of action against the defendant, developed to address the problems arising from the infringement of intellectual property rights via the internet. It is granted to compel the internet service providers, who are themselves innocent of any wrongdoing, to prevent their facilities from being used to commit or facilitate a wrong. The UK Supreme Court observed:
98.Although the injunction is not an internet blocking order as such and does not name the IPOs as defendants, most of the principles discussed by the Supreme Court are apposite. The evidence before us shows how in light of the way the criminal acts in connection with the Song are conducted on the internet by various unidentifiable persons, it is impracticable to bring proceedings against each of the wrongdoers. A much more effective way to safeguard national security in such circumstances is to ask the IPOs to stop facilitating the acts being carried out on their platforms, to break the circuit as submitted by Mr Yu. Although the IPOs have not taken part in these proceedings, they have indicated that they are ready to accede to the Government’s request if there is a court order. The injunction is therefore necessary. For completeness, it should be noted that the evidence before us does not indicate that the IPOs have concerns over or difficulties in complying with the injunction. 99.The Judge considered that education might be more effective in remedying the public’s misconceptions about broadcasting etc of the Song. As seen, education is one of the tools to be deployed for safeguarding national security under the multi‑pronged approach in the NSL. Its primary purpose is to instil in the public values and norms for national security. It will help dispel the public’s misconception about broadcasting etc of the Song, but that will take time. However, as explained, in terms of a forceful, immediate response to aid the criminal law in tackling the damage and threats to national security caused by the 4 Acts and the public misconceptions, injunction, as a preventive measure backed by the regime for contempt, is clearly more effective than education. 100.We finally come to the terms of the injunction. 101.For the prohibition of the 4 Acts, accepting that the injunction should not be wider than the criminal law, Mr Yu agrees with our observation that in respect of the NAO, the prohibition should be revised to address misrepresentation of the Song as the national anthem insofar as the HKSAR is concerned. Further, the reference to section 9 of the Crimes Ordinance (now repealed) has to be changed to section 23 of the Safeguarding National Security Ordinance (Instrument A305). 102.Mr Yu specifically asks for an order that the acts of publishing of the 32 Items via the Uniform Resource Locators constitute acts being restrained by the injunction. This does not feature in the relief claimed in the Indorsement of Claim or the summons. Presently formulated, the Indorsement of Claim and the summons, and for that matter, the Certificate, all direct at acts committed in relation to the Song with the requisite mens rea. They do not specifically refer to the acts of publishing of the 32 items via the URLs simplicitor. Mr Yu however submits that while the injunction does not seek to prohibit the specified acts without the requisite mens rea, the evidence clearly establishes that the acts of publishing the 32 Items via the URLs are done with the requisite mens rea. To make good his submissions, Mr Yu has taken us through the evidence, showing that the 32 Items were broadcast or published etc either in circumstances capable of inciting others to commit secession or in such a way as to misrepresent the Song as the national anthem insofar as the HKSAR is concerned. Giving the matter due consideration, we are satisfied that for the purpose of the injunction, both the requisite actus reus and mens rea are present for each of the 32 Items and that there is a proper basis for the order sought. 103.To address the concern about potential engagement of the right to free expression, Mr Yu has proposed exceptions, which we accept, for lawful activities conducted in connection with the Song, such as those for the purposes of academic activity and news activity, which on the evidence now before us are the two most apparent examples.[41] 104.Finally, to ensure that any person affected by the injunction or a newcomer can apply to the court, as Mr Yu accepts, there should be liberty to apply. 105.For the above reasons, we allow the appeal, set aside the Judge’s order and make an interim injunction as appeared in Annex to this judgment, with no order as to costs. 106.Last but not least, we would like to thank counsel and the amici curiae for their able assistance.
Mr Benjamin Yu SC and Mr Jenkin Suen SC, instructed by the Department of Justice, for the Plaintiff Mr Abraham Chan SC and Mr Martin Ho, Amici Curiae The Defendants were not represented and did not appear Annex 1. Until trial or further order of the Court, there be an injunction restraining the Defendants and each of them, whether acting by themselves, their servants or agents, or otherwise howsoever, from doing any of the following acts:
2. Without limiting the generality of paragraph 1, the acts of publishing the items via the Uniform Resource Locators (URLs) set out in the Schedule hereunder constitute acts being restrained by paragraph 1(a) and/or 1(b); 3. The Defendants and each of them shall take such action forthwith to cause any of the acts as set out in paragraph 1 to cease; 4. For the avoidance of doubt, this Order does not prohibit any lawful acts in connection with the Song, whether its melody or lyrics or in combination, conducted for purposes such as academic activity and news activity, provided that they do not involve any of the acts as set out in paragraph 1(a) to (d); 5. In this Order:
6. There is liberty to apply. 7. Leave be granted to the Plaintiff to serve this Order on the Defendants by way of substituted service by (a) publishing a copy of the sealed Order on the webpages of the Hong Kong Police Force, the Department of Justice and the Government of the HKSAR (“Government”); (b) exhibiting securely at a conspicuous place that is accessible by the public at the Wan Chai Division Report Room, No. 1 Arsenal Street, Wanchai, Hong Kong a notice containing the QR code linking to this Order; and (c) issuing a press release by the Government in which the three aforesaid webpages are set out and the QR code linking to this Order is provided. SCHEDULE
- END - [1] Cap 4. [2] See [7] for definition. [3] [2023] HKCFI 1950 (“Decision”). [4] Leave to appeal was granted by the Judge, and leave to rely on additional grounds in this appeal was granted by this Court in CAMP 303/2023. [5] See, for example, an interview published by Stand News on 11 September 2019 entitled “【專訪】「香港之歌」誕生？ 《願榮光歸香港》創作人：音樂是凝聚人心最強武器”; an article in the TIME magazine on 12 September 2019 entitled “Listen to the Song That Hong Kong’s Youthful Protestors Are Calling Their ‘National Anthem’”; an article published by Citizen News on 22 December 2019 entitled “年度歌曲《願榮光歸香港》 創作人：歌詞坦誠最有共鳴”; and a video published on YouTube by the name “【榮光燦爛】藝術很有事 第60集” on 3 June 2020. [6] Cap 200. It has been repealed by the enactment of the Safeguarding National Security Ordinance (Instrument A305) which came into force on 23 March 2024. The offences of seditious intention are now contained in sections 23 and 24 of that Ordinance. [7] Instrument A405. [8] That part of the Certificate is couched in terms identical to paragraph 1 of the Indorsement of Claim. [9] See Wong’s Affidavit, [71] ‑ [75]. [10] Decision, [34] ‑ [43]. [11] Decision, [51]. [12] Decision, [52]. [13] Decision, [57]. [14] Decision, [58]. [15] Decision, [63]. [16] Decision, [64]. [17] Decision, [68]. [18] Ibid. [19] Decision, [69]. [20] Decision, [71]. [21] Decision, [82] ‑ [83]. [22] Grounds 1 and 2 of the grounds of appeal. [23] Ground 3 of the grounds of appeal. [24] Ground 5 of the grounds of appeal. Ground 4 complains that the Judge failed to take into account relevant considerations and took into account irrelevant considerations. Ground 6 complains that the Judge failed to giving separate consideration to the grant of the injunction in relation to restraining insult to the national anthem by misrepresenting the Song as the national anthem. For reasons which will become apparent, it is not necessary to deal with Grounds 4 or 6 separately. [25] The judgment was given by Lord Reed, Lord Briggs and Lord Kitchin (with whom Lord Hodge and Lord Lloyd-Jones agreed). [26] Quite recently in Hong Kong, an interim injunction had been granted in aid of (1) the Mass Transit Bye-laws against protestors who unlawfully and wilfully obstructed or interfered with the proper use of the MTR system in MTR Corp Ltd v Unknown Persons [2019] 4 HKLRD 446; and (2) the Airport Authority Bye-law against persons unlawfully obstructing or interfering with the proper use of the Hong Kong International Airport in Airport Authority v Persons Unlawfully Obstructing or Interfering with the Proper Use of the Hong Kong International Airport [2019] HKCFI 2104. [27] The judgment in Bovis was delivered on 18 April 1988. [28] Similar concerns were expressed by Viscount Dilhorne at pp 490H-491B; Lord Diplock at pp 498F‑500C; and Lord Fraser of Tullybelton at p 521C-E. [29] Decision, [45]. [30] On 23 March 2024, the Safeguarding National Security Ordinance (lnstrument A305) came into force. [31] Together with Mr Jenkin Suen SC. [32] Mr Yu also asks us to note that in Begum, the English Supreme Court at [70] and [71] applied a similar approach in the context of the UK Special Immigration Appeals Commission. [33] See also Part 2.4 below. [34] See [26(1)] above. [35] Leading Mr Martin Ho. [36] Decision, [67] and [68]. [37] Cap 4A. [38] Decision, [68]. [39] Decision, [69]. [40] See [17] above. [41] The exception for news activity is made pursuant to the proposal by the Hong Kong Journalists Association which is accepted by the Secretary for Justice. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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Further hearings and rulings under CACV 274/2023