Read the full judgment text of FACV 6, 7, 8及9/2020 on BabelCite. This Court of Final Appeal judgment was delivered on 21 December 2020 before 馬道立, 李義, 霍兆剛, 張舉能, 賀輔明勳爵.
Constitutional law – Emergency Regulations Ordinance (Cap 241) – Prohibition on Face Covering Regulation (Cap 241K) – Basic Law – separation of powers – delegation of legislative power – subsidiary legislation – emergency powers – public order – fundamental rights – freedom of assembly, expression and privacy – Hong Kong Bill of Rights – ICCPR Articles 4 and 21 – proportionality – four-step test from Hysan Development – public violence in Hong Kong from June to October 2019 triggered by Fugitive Offenders Bill – 'black bloc' tactics – use of face coverings to conceal identity – over 400 public order events and 2,135 arrests by 4 October 2019 – escalation of violence on 29 September and 1 October 2019 – CE in Council invoked ERO to make PFCR – whether ERO impermissibly delegates general legislative power from LegCo to CE in Council – whether ERO was impliedly repealed by BORO s.3(2) or ICCPR Art. 4 – whether ERO violates 'prescribed by law' requirement under Basic Law Art. 39(2) – whether PFCR is ultra vires under principle of legality – whether PFCR ss.3(1)(b), 3(1)(c) and 3(1)(d) impose disproportionate restrictions – Court of First Instance declared ERO unconstitutional and parts of PFCR disproportionate – Court of Appeal reversed on ERO constitutionality and s.3(1)(b), but upheld invalidity of ss.3(1)(c), 3(1)(d) and s.5 – Court of Final Appeal held ERO constitutional as regulations thereunder are subsidiary legislation subject to judicial, legislative and constitutional control – 'prescribed by law' applies to actual restrictions not enabling legislation – PFCR ss.3(1)(b), 3(1)(c) and 3(1)(d) are proportionate given preventive and deterrent purpose and evidence of rapid deterioration of peaceful assemblies into violence – applicants' appeals dismissed – government's appeal allowed – costs to government.
Legal issues: Whether the Emergency Regulations Ordinance impermissibly delegates general legislative power to the Chief Executive in Council · Whether the ERO was impliedly repealed by BORO s.3(2) or ICCPR Article 4 · Whether the ERO violates the 'prescribed by law' requirement under Basic Law Art. 39(2) · Whether the PFCR is ultra vires under the principle of legality · Proportionality of PFCR s.3(1)(b) - unauthorized assemblies · Proportionality of PFCR ss.3(1)(c) and 3(1)(d) - authorized public assemblies and processions
Outcome: The Court of Final Appeal dismissed the applicants' appeals in FACV 6, 7 and 8/2020, and allowed the government's appeal in FACV 9/2020. The ERO is constitutional. The PFCR is validly made under the ERO. Sections 3(1)(b), 3(1)(c) and 3(1)(d) of the PFCR are constitutional and proportionate, reversing the Court of Appeal's finding in respect of ss.3(1)(c) and 3(1)(d).
Cited by 22 cases · Cites 4 cases