Read the full judgment text of FACC 000004/1999 on BabelCite. This FACC judgment was delivered on 15 December 1999 before Chief Justice Li, Litton PJ, Ching PJ, Bokhary PJ, Sir Anthony Mason NPJ.
Criminal law – flag desecration – freedom of expression – constitutional law – Basic Law – Article 27 – International Covenant on Civil and Political Rights – Article 19 – Hong Kong Bill of Rights Ordinance (Cap 383) Article 16 – Basic Law Article 39 – public order (ordre public) – proportionality – necessity – statutory interpretation – national flag as unique symbol of the People's Republic of China – regional flag as unique symbol of the HKSAR as inalienable part of PRC under 'one country, two systems' – public demonstration on 1 January 1998 – respondents carried and waved extensively defaced national and regional flags during a public procession from Victoria Park to the Central Government Offices and tied them to railings – chanting 'build up a democratic China' – charged with desecration by publicly and wilfully defiling the flags contrary to s.7 of the National Flag and National Emblem Ordinance (No. 116 of 1997) and s.7 of the Regional Flag and Regional Emblem Ordinance (No. 117 of 1997) – whether s.7 of the National Flag Ordinance contravenes the Basic Law – whether s.7 of the Regional Flag Ordinance contravenes the Basic Law – whether legitimate interests in protecting the flags fall within 'public order (ordre public)' – whether the restriction is necessary and proportionate – flag desecration as a form of non-verbal symbolic expression engaging the freedom of expression – restriction is a limited one, banning one mode of expression and not interfering with the substance of what may be expressed – 'public order (ordre public)' is wider than common law law and order, extending to the general welfare and interests of the collectivity as a whole – test of necessity given ordinary meaning, involving proportionality – due weight given to view of HKSAR legislature – criminalisation of flag desecration held to be a justifiable restriction – section 7 of each Ordinance is constitutional – respondents' conduct held to amount to desecration by defiling, not mere non-criminal display of a damaged flag under s.4 – appeal by HKSAR allowed – convictions and binding over ordered by the Magistrate restored.
Legal issues: Whether s.7 of the National Flag Ordinance contravenes the Basic Law · Whether s.7 of the Regional Flag Ordinance contravenes the Basic Law · Whether legitimate interests in protecting the national and regional flags fall within 'public order (ordre public)' · Whether the restriction on freedom of expression is necessary · Whether the conduct amounted to desecration by defiling under s.7 (new point raised by 2nd respondent)
Outcome: Appeal allowed; convictions for desecration of the national flag and the regional flag, and the binding over ordered by the Magistrate, restored.
Cited by 6 cases