Read the full judgment text of FACC 2/2024 on BabelCite. This Court of Final Appeal judgment was delivered on 12 August 2024 before Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Neuberger of Abbotsbury NPJ.
Constitutional law – fundamental rights – freedom of peaceful assembly – Public Order Ordinance (Cap 245) sections 13, 14, 15 and 17A – unauthorised assembly – section 17A(3)(a) offence of knowingly taking part – prohibition of procession by Commissioner of Police and Appeal Board on 18 August 2019 – Civil Human Rights Front – Victoria Park assembly and procession to Chater Road – defendants (D1 Lai Chee Ying, D2 Lee Cheuk Yan, D3 Ng Ngoi Yee Margaret, D4 Leung Kwok Hung, D5 Ho Sau Lan Cyd, D6 Ho Chun Yan, D8 Lee Chu Ming Martin) led procession carrying banner proclaiming 'common purpose' – trial judge's finding that 'water flow dispersal' was a ruse to circumvent the ban – conviction of organising and taking part – Court of Appeal quashing 'organising' conviction but upholding 'taking part' conviction – whether to follow DPP v Ziegler [2022] AC 408 and Reference by the Attorney General for Northern Ireland – Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32 in Hong Kong – whether and to what extent an 'operational proportionality' exercise is required – constitutional rights in Hong Kong are constitutionally entrenched under Chapter III of the Basic Law and the Hong Kong Bill of Rights, not statutory Convention rights under the UK Human Rights Act 1998 – rule challenges and decision challenges – five-stage framework (identify right and impugned measure; whether the right is engaged; Hysan four-step proportionality inquiry; remedial order; declaration of invalidity) – Court of Final Appeal declines to follow Ziegler's importation of a proportionality assessment into a substantive 'lawful excuse' defence or its treatment of arrest, prosecution, conviction and sentence as separately reviewable 'restrictions' – Court declines to adopt Abortion Services' 'in all or almost all cases' ab ante test, which has no place in Hong Kong's proportionality jurisprudence – suggested reformulation of the 'systemic/operational proportionality' distinction in Leung Kwok Hung v Secretary for Justice (No 2) [2020] 2 HKLRD 771 as 'rule challenges' and 'decision challenges' – rule challenge to the POO's constitutionality foreclosed by Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 – defendants did not mount a decision challenge to the Commissioner's objection to the procession – no basis for a residual proportionality assessment of arrest, prosecution, conviction or sentence – courts are not 'the Government' or 'public authority' within sections 6 and 7 of the Hong Kong Bill of Rights Ordinance for the purpose of being reviewable on proportionality grounds – Kudrevičius v Lithuania distinguished as a decision of a supra-national court reviewing a High Contracting Party's authorities – reliance on the POO's 'lawful authority or reasonable excuse' defence to import proportionality rejected following Abortion Services' approach that no Convention proportionality assessment is needed where the ingredients of the offence in themselves strike the proportionality balance – appeals dismissed – convictions for taking part in an unauthorised assembly under section 17A(3)(a) upheld – three defendants (D3, D6 and D8) received non-custodial suspended sentences.
Legal issues: Whether the Court should follow Ziegler and Abortion Services and conduct an operational proportionality exercise · Whether judicial acts are subject to independent proportionality review under HKBORO · Whether 'lawful authority or reasonable excuse' in POO section 17A(3) imports a proportionality inquiry
Outcome: Appeals unanimously dismissed; convictions for knowingly taking part in an unauthorised assembly under POO section 17A(3)(a) upheld.
Cited by 12 cases · Cites 7 cases