HKSAR v. Ng Kung Siu and Another

HCMA000563/1998

HCMA563/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 563 OF 1998

(ON APPEAL FROM WSS 3151 & 3152 OF 1998)

BETWEEN
	HKSAR
	AND
	NG KUNG-SIU (D1) LEE KIN-YUN (D2)

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Coram: Power, V.-P., Mayo & Stuart-Moore, JJ.A.

Date of Hearing: 4 March 1999

Date of Delivery of Judgment: 23 March 1999

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J U D G M E N T

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Stuart-Moore, J.A. (giving the judgment of the Court):

1. On 18th May 1998, the Appellants (D1 and D2 respectively) were each convicted on two summonses, following a trial before Mr. Tong Man in Western Magistrates' Court. On 8th December 1998, the matter was listed as an appeal before Beeson J. After hearing representations from both sides who were agreed that this matter should be heard in the Court of Appeal and, in pursuance of section 118(1)(d) of the Magistrates Ordinance, Cap. 227, the judge then directed that these appeals should be argued before this court.

2. D2 was absent throughout the hearing of the appeals. It had not been possible to locate him for the purpose of serving him with a Notice of Hearing, and his present whereabouts are unknown. Nevertheless, we indicated at the commencement of the appeals that we thought it desirable to hear submissions on behalf of D1, and for the Respondent, before deciding what course to adopt in relation to D2.

3. The first pair of summonses alleged against D1 and D2 in identical terms that they had desecrated the national flag by publicly and wilfully defiling it, contrary to section 7 of the National Flag and National Emblem Ordinance, Ordinance No.116 of 1997. The second pair of summonses also alleged in identical terms that D1 and D2 had each desecrated the regional flag by publicly and wilfully defiling it, contrary to section 7 of the Regional Flag and Regional Emblem Ordinance, Ordinance No.117 of 1997. Each offence was said to have occurred on 1st January 1998.

4. The learned Magistrate, having convicted both Defendants, made an order that D1 and D2 should each be bound over to keep the peace in his own recognizance of $2,000 on each summons for a period of 12 months.

5. The appeals are solely directed at conviction.

6. There was no issue on the facts at trial. As the magistrate rightly pointed out in his ruling on a submission of no case to answer, the entire Summary of Facts put forward by the prosecution was admitted by the defence under section 65C of the Criminal Procedure Ordinance, Cap.221. The questions calling for his decision related purely to the legal issues that were raised. However, there was really only one central question calling for the magistrate's decision, namely whether the National Flag and National Emblem Ordinance and the Regional Flag and Regional Emblem Ordinance, which we shall call the Flag Ordinances, were inconsistent with the guarantees of freedom of expression in the Basic Law.

7. The facts revealed that the incidents which are the subject of these proceedings, arose out of a small demonstration of a few hundred people on 1st January 1998. All relevant procedures under the Public Order Ordinance, Cap. 245, were observed and permission to hold the demonstration was given. It started in Victoria Park and, after speeches, proceeded in an orderly fashion through the streets to Central Government Offices.

8. However, from the Summary of Facts, it is clear that the actions of two young men attracted both press and police attention. At the commencement of the procession, at about 3.30 p.m., Sergeant 4499 (PW1), a uniformed officer, observed one young man in the crowd (D2) holding a Taiwan flag. The flag was undamaged but PW1 approached D2 and advised him not to display the flag in order to avoid any emotional response from the public. D2 then put the flag under his shirt and disappeared into the crowd.

9. Some twenty minutes later, PW1 was alerted by a press reporter to the fact that somebody was displaying a defaced and torn flag and, as a result, PW1 noticed another young man (D1) carrying a defaced Regional flag (Exh.1). At the same time, PW1 also saw D2 waving the Taiwan flag together with a defaced National flag (Exh.2). The two Defendants were together in the crowd and were apparently known to each other. When PW1 approached them and invited them to put the flags away, both Defendants merely smirked at him and chanted "Build up a democratic China". PW1 then warned D1 and D2 not to display these flags but they ignored PW1's advice. PW1 then informed his superiors of what he had observed and, at that stage, no arrests were made.

10. The two Defendants were kept under observation during the procession by various police officers. Both Defendants were noticed to be carrying the flags (Exhs. 1 and 2) in their hands and waving them in the air along the route. Sergeant 21733 (PW3) was near D1 and D2 during the procession. He saw D1 display the National flag (Exh.2) and D2 display the Regional flag (Exh.1) all the way from Causeway Road in Causeway Bay, through Wanchai and finally to the procession's destination in Central.

11. At the end of the procession, the two Defendants tied the defaced flags and the Taiwan flag they had been brandishing to some railings outside Government Headquarters in the presence of the press. They departed after D2 had spoken to the press. This incident was witnessed by PC 48200 (PW8) and PC 47049 (PW5) who was the officer who made a video recording of events at Government Headquarters. An earlier video record was made by PW7 of the procession as it passed through Wanchai showing D1 and D2 displaying Exhs. 1 and 2. These video recordings were played in the court below so that the magistrate could gain a clear impression of the events.

12. The flags were removed and taken into the custody of the police much later in the day. Both flags had been extensively defaced in a number of ways. In particular, a circular portion had been cut out of the centre of the National flag; the large five-pointed yellow star had been daubed with black ink and the star itself was punctured; and the four smaller stars on the flag had the Chinese character "shame" written on them in black ink. Similar damage appeared on the reverse side of the flag.

13. The Regional flag was principally defaced by a black cross which had been drawn across the Bauhinia on both sides of the flag; one section of the flag had been torn off which obliterated a portion of the Bauhinia design; three of the remaining four red five-pointed stars had black crosses daubed over them; the Chinese character "shame" was written on the flag in black ink; and a further Chinese character appeared on the flag which was rendered illegible by the tear in the flag. Similar damage appeared on the reverse side of the flag.

14. At no stage of any of the events relating to the activities of D1 or D2 did any violence occur, and there appears to have been no threat of it arising. This was a peaceful demonstration.

15. At the trial, no evidence was called by the defence. The magistrate then heard submissions of no case to answer. He ruled that there was a case to answer. The same submissions were adopted in the final address given by Mr. Paul Harris, who appears on behalf of D1 in this court as he did in the court below.

16. In the light of this background, Mr. Harris has advanced a total of 12 grounds of appeal although the last of these grounds, which was in addition to the original grounds as amended, was very properly and sensibly not pursued at the outset of the hearing.

17. It is convenient to begin with grounds one to seven which are closely related and which we consider to be the most important. Whilst we do not need to deal with every point raised in these grounds, it is perhaps helpful to set them out in full in order to give the flavour of the arguments which were advanced before us. The grounds read as follows:

"1. The learned magistrate misdirected himself in law in holding that Section 7 of the National Flag and National Emblem Ordinance, while it restricted the right to freedom of expression guaranteed by Article 19 of the International Covenant on Civil and Political Rights, was justified under paragraph 3 of the same article as necessary for the protection of public order and so was valid.

2. In particular, the learned magistrate misdirected himself in holding that the possibility that an otherwise peaceful and lawful expression of opinion might generate a hostile crowd was sufficient justification for restricting the right of freedom of expression on the grounds of public order. The correct position is that the mere risk of a hostile reaction by persons offended by an expression of opinion cannot per se be a justification for restriction of the right of freedom of expression.

3. The learned magistrate similarly misdirected himself in law in holding that Section 7 of the Regional Flag and Regional Emblem Ordinance was valid on the same grounds as those he had relied on in ruling that Section 7 of the National Flag and National Emblem Ordinance was valid. Even if the Appellant's contentions in relation to the national flag were not accepted by the court, the position with regard to the regional flag would not be the same, as regional flags are not symbols of allegiance in the way national flags are. There is no evidence that the Hong Kong Special Administrative Region flag is sacred to anybody.

4. There was no evidence on which the learned magistrate could have based his finding that there was a risk of a hostile reaction to the defendants' actions in defacing the national and regional flags.

5. The learned magistrate further misdirected himself in purporting to take judicial notice of a fact which was not correct, namely by finding as a fact, but in the absence of any evidence on the matter, that the flag of the People's Republic ' has been ... a sacred symbol respected by all Chinese regardless of their social, political or philosophical beliefs', and in basing his judgment on that finding.

6. The fact that a symbol such as a flag may be respected or venerated by many people does not justify criminalising those who disapprove of that symbol and/or wish to change it. If respect for feelings of those who venerate particular symbols were the guiding principle justifying restrictions on freedom of expression, equity would require restrictions on desecration of all such symbols, including flags other than that of the People's Republic of China. However the essence of free expression is the right to express unpopular ideas through any medium.

7. The learned magistrate further failed to take account of the wide-ranging effect of the two provisions challenged. They not only criminalise political expression as in the present case, they also criminalise artistic expression in that they prevent the use of the flags concerned in any artistic design or composition. By doing so they criminalise harmless traditional Hong Kong activities such as the production of souvenirs for tourists and bring the law into disrepute and ridicule."

18. Clearly, the provisions of Article 19 of the International Covenant on Civil and Political Rights (ICCPR) are crucial to this appeal. The Article provides:

"1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals."

19. This provision is the same as Article 16 of the Bill of Rights.

20. The main thrust of Mr. Harris' submissions is that the charges were null and void as they breached the ICCPR as applied to Hong Kong by Article 39 of the Basic Law of the HKSAR which provides:

"(i) the provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region;

(ii) The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this article."

21. The Basic Law, as Li, C.J. observed in Ng Ka-ling & Others v Director of Immigration, (1999) 1 HKLRD 315, at p.339:

"... is an entrenched constitutional instrument to implement the unique principle of 'one country, two systems.' As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances."

22. The Respondent's position is that the restriction on freedom of expression by criminalising the desecration of the National and Regional flags is justified on the ground that it is necessary for the protection of public order.

23. It is this proposition that lies at the very heart of the appeal before this court.

24. It is first of all worthy of note that the formal enactment of the Flag Ordinances occurred after the Basic Law came into operation. No similar laws had been thought necessary before that time. Clearly, as the Respondent accepts, the burden of justifying this apparent limitation on a guaranteed right of freedom of expression lies with the Respondent.

25. In this same context, the magistrate ruled in his Statement of Findings that the:

"relevant legislation was inconsistent with Article 19 of the ICCPR but was justified under paragraph 3 of the same Article."

26. The justification, which was expressed in the magistrate's ruling on the submission of no case to answer (at p.136 in the appeal bundle) was as follows:

"Bearing in mind the significance of the status that the national flag occupied in the mind of an ordinary Chinese citizen, it would not be difficult for a reasonable man to visualize the possibility of a confrontation or even a riot triggered off by someone burning or desecrating the national flag in public. In fact, there had been riots triggered off in the 1950's in Hong Kong by some one desecrating the Taiwanese Koumintang flag in Shamshuipo and Shekipmei area. Such riot was one of the 3 major riots in Hong Kong's history. No doubt the whole event, as organized by the Alliance on this occasion, proceeded in a peaceful and orderly manner. However, any responsible government should not overlook such real possibility of social disorder caused by desecration of the national flag in public. What happens if the next flag desecration act takes place amongst a procession which is less well organized by an inexperienced or radical political body. Does it mean that only when a riot has broken out, then the government can say that we now need a law to prohibit the desecration of the national flag? The answer to this question must be in the negative. For the aforesaid reasons, I rule that section 7 of the National Flag and National Emblem Ordinance restricts the right to freedom of expression guaranteed by Article 19 of the ICCPR but is justified under paragraph 3 of the same article in that such law is necessary for the protection of public order."

27. Mr. Bruce, S.C., who appears for the Respondent, and who also appeared in the court below, submitted that the magistrate was correct in the reasoning which led to his conclusions. He has submitted that the justification for the necessity of these laws is apparent even though they are unlikely to be implemented frequently. He fully accepts that the right of freedom of expression, which is guaranteed under the Basic Law, is restricted by the legislation which we are examining in this appeal, but he maintains that this is fully justified.

28. We can pause to observe that no doubt to many people all over the world the national flag poignantly symbolizes the pride and the spirit of togetherness which unify the nation. To a more limited extent, a regional flag will give rise to similar sentiments.

29. We have no hesitation in affirming that government institutions and symbols of the Chinese nation both as a whole and in the Hong Kong Special Administrative Region should be accorded due respect. To this extent, the aims of this legislation are perfectly understandable.

30. At the same time, the People's Republic of China has given its whole-hearted assent to the Basic Law which states in the clearest terms that "the provisions of the ICCPR .... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR". There is, in our judgment, no doubt that the People's Republic of China will be anxious to see the fulfilment in Hong Kong of these clearly expressed aims.

31. Whilst, therefore, there may be some support for the sentiments expressed by the magistrate, this court has to concentrate upon the necessity for such legislation. In his judgment, the magistrate failed to give due weight to the fact that the law already caters for a large variety of situations arising out of abuse of the flag which may lead to charges ranging from those as serious as riot and unlawful assembly under the Public Order Ordinance to relatively minor offences such as conduct which is likely to cause a breach of the peace.

32. Where the flag in question is public property, as opposed to privately owned property which both flags in the present case were, charges of arson, or causing criminal damage or destroying property under the Crimes Ordinance, Cap.200, will also be available depending on the circumstances of the case. These are examples of a wide range of offences which will cover not only the situations which gave rise to the concern of the magistrate but others as well. It would be an unimaginative prosecutor who was not able to find an appropriate offence to charge from the readily available armoury of well-defined offences.

33. Furthermore, the unlikelihood of serious civil disturbance arising from an act of desecrating a national or regional flag, which was considered by the magistrate, is something we have also considered when looking to see whether this legislation was necessary. At page 133 of the Appeal Bundle, the magistrate accepted that there was:

".... no known case of desecration of a national flag amongst the 130 odd signing nations of the ICCPR but there were two flag burning case decisions by the United States Supreme Court."

34. Those decisions were, of course, of persuasive effect only, but they are nonetheless worthy of consideration. As Mr. Harris pointed out in his submissions, the United States of America was the first country to have a written constitution which guaranteed rights to its citizens. The First Amendment to the United States Constitution guarantees the right to freedom of expression. This right has twice in recent years been held by the United States Supreme Court to include the right to burn the national flag.

35. In the first of these cases, Texas v Johnson, (1989) 491 US 397, US Supreme Court Reports p.342, Brennan J. said at p.360:

"If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. .... We have not recognized an exception to this principle even where our flag has been involved."

Brennan J. went on at p.361:

"In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it."

36. In United States v Eichman, (1990) 496 US 310, U.S. Supreme Court Reports p.291, it was again Brennan J. who delivered the opinion of the court. Not surprisingly, it was again held that the prosecution for burning a flag in violation of the Flag Protection Act, 1989, which criminalised the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or tramples upon" a United States flag (except conduct related to the disposal of a "worn or soiled" flag), was inconsistent with the First Amendment.

37. It is rightly and additionally pointed out by Mr. Harris that none of the leading common law jurisdictions criminalise the defacing of the national flag.

38. We find ourselves unable to accede to the Respondent's submission that the enactment of the Flag Ordinances was necessary for the normal operation of the Hong Kong Special Administrative Region. We are equally unable to accede to an additional submission made by Mr. Bruce that what was "necessary" was primarily a matter of political judgment.

39. Ultimately, it must be for the courts to decide what is necessary having given due consideration and respect to the legislature which enacted these provisions.

40. Whilst it is no doubt true to say of most, if not all, nations that great value is placed upon the symbol of the nation in the form of the national flag, we are satisfied, as was the magistrate, that section 7 in each Flag Ordinance was inconsistent with Article 19 of the ICCPR and, by the same token, contravened section 39 of the Basic Law. However, we consider that the magistrate materially misdirected himself, for the reasons we have given, when he found that the legislation was "justified" as being "necessary for the protection of public order" under paragraph 3 of the Article. There was no evidence and no basis for arriving at this conclusion.

41. Having taken this view, we do not need to consider other aspects of these grounds of appeal or any of the remaining grounds which are, in any event, peripheral to the central issue which has been put before us.

42. Accordingly, we allow the appeal and quash the convictions of D1 and D2.

(N.P. Power)	(Simon Mayo)	(M. Stuart-Moore)
Vice-President	Justice of Appeal	Justice of Appeal

Representation:

Mr. A.A. Bruce, S.C., S.A.D.P.P. and Miss Anthea Pang, S.G.C. for D.P.P./Respondent

Mr. Paul Harris and Mr. Lawrence Lau instructed by DLA for D1/Appellant. D2/Appellant in person (absent).

Remarks:

Upon appeal by the Respondent to the Court of Final Appeal: Appeal allowed. The convictions and the binding over ordered by the Magistrate are restored. Please refer to FACC000004/1999.