HKSAR v. Leung Kwok Hung and Others
Read the full judgment text of HCMA 16/2003 on BabelCite. This High Court CFI judgment was delivered on 10 November 2004.
1. In this appeal, we are concerned with the limits to the freedom of peaceful assembly as contained in the Public Order Ordinance, Cap.245 (“the POO”). The issues raised are of considerable importance. On 23 June 2003, Pang J directed that this magistracy appeal be heard by the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance, Cap.227.
Cited by 7 cases · Cites 13 cases
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Judgment Summary (English Version) Judgment Summary (Chinese Version) HCMA 16/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MAGISTRACY APPEAL NO. 16 OF 2003 (ON APPEAL FROM KCCC NO. 8456 of 2002) _________________________ BETWEEN
_________________________ Before : Hon Ma CJHC, Stock & Yeung JJA in Court Dates of Hearing : 24-27 February & 24-25 June 2004 Date of Handing Down Judgment : 10 November 2004 _______________ J U D G M E N T _______________ Hon Ma CJHC : 1.In this appeal, we are concerned with the limits to the freedom of peaceful assembly as contained in the Public Order Ordinance, Cap.245 (“the POO”). The issues raised are of considerable importance. On 23 June 2003, Pang J directed that this magistracy appeal be heard by the Court of Appeal under section 118(1)(d) of the Magistrates Ordinance, Cap.227. 2.On 25 November 2002, the 1st Appellant was convicted at Kowloon City Magistracy of holding an unauthorized assembly on 10 February 2002 contrary to section 17A(3)(b)(i) of the POO. He was bound over on his own recognizance for $500 for a period of 3 months. 3.The same day, the 2nd and 3rd Appellants were also convicted at the Kowloon City Magistracy of the offence of assisting in the holding of an authorized assembly contrary to section 17A(3)(b)(i) of the POO. Each was similarly bound over on a recognizance of $500 for a period of 3 months. 4.The Appellants had all pleaded not guilty to these offences. The trial took place over the course of 10 days from September to November 2002. The presiding magistrate was the Chief Magistrate, Mr Patrick Li. The reasons for his decision to convict dated 25 November 2002 have been reported in [2002] 4 HKC 564. 5.The convictions arose from a demonstration that took place on the morning of 10 February 2002 (a Sunday). At about 11:00 am that day, a number of people gathered at Chater Garden to get ready for a procession. The 2nd Appellant used a loudhailer calling on all participants to gather. There was to be a demonstration apparently to protest against the conviction of a fellow activist for assault and obstruction on a police officer. 6.The police were already present at the scene since there was a right of abode demonstration also in Chater Garden at the time. One of the police officers on duty ascertained that the person in charge of the procession with which we are concerned, was the 1st Appellant. The 1st Appellant was then a well-known activist. He is now a member of the Legislative Council. 7.The 1st Appellant was asked to go through a notification procedure under the POO in order to get the necessary permission to hold the procession but he refused. He was warned for not making an application. At about 11:16 am, the procession comprising about 40 people set off from Chater Garden in the direction of the Police Headquarters at Arsenal House on Arsenal Street. They proceeded along Queensway and although the police asked them to use the pedestrian pavement, the demonstrators refused and used the left traffic lane of that road instead. The three Appellants (the 1st Appellant being in the April 5th Action Group, the 2nd and 3rd Appellants being part of the Hong Kong Federation of Students) were in the second row of the marchers. As the demonstrators marched along Queensway, others joined in so that eventually the numbers swelled to about 96 persons. They did eventually reach the Police Headquarters and demonstrated there for about an hour before dispersing. The Magistrate found the procession to have been peaceful at all times. 8.Nothing turns on the facts in this appeal. Instead the focus has been on the constitutionality of certain provisions in the POO. It is the first time that this Court has been faced with this important issue. In this appeal, the 1st Appellant was unrepresented and made submissions on his own behalf. Mr Michael Blanchflower SC and Mr Y L Cheung appeared for the 2nd and 3rd Appellants. Mr Gerard McCoy SC, Mr Gavin Shiu and Mr David Leung appeared for the Respondent. 9.Before going into the issues in this appeal, I would first like to identify the relevant provisions of the Basic Law, the International Covenant on Civil and Political Rights (“the ICCPR”) and the Bill of Rights dealing with the freedom of assembly and then outline the statutory scheme under the POO regarding public gatherings, meetings and processions. The constitutional challenge made by the Appellants is against sections 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A of the Ordinance. The freedom of assembly 10.Article 27 of the Basic Law (which is under Chapter III containing the fundamental rights of residents of Hong Kong) states in part that Hong Kong residents shall have the freedom of speech and of assembly. 11.The freedom of assembly (together with its limitations) is also contained in Article 21 of the ICCPR : -
12.The provisions of the ICCPR apply in Hong Kong and the freedoms contained therein are guaranteed under the Basic Law. Article 39 reads :-
13.The freedom of assembly is also guaranteed under Article 17 of the Bill of Rights under the Hong Kong Bill of Rights Ordinance, Cap.383, which reproduces in identical terms Article 21 of the ICCPR. 14.This freedom is of course closely linked to the freedom of speech and demonstration (which are expressly guaranteed by Article 27 of the Basic Law) and of expression (which is a stated right in Article 19 of the ICCPR and Article 16 of the Bill of Rights). There is in the circumstances of the present case no real distinction between these freedoms. For convenience, I will only address the freedom of assembly as being the applicable right in this appeal. 15.The fundamental rights and freedoms guaranteed under the Basic Law must be given a purposive and generous meaning in order to give to Hong Kong residents the full measure of such rights and freedoms : - see Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, at 28D-29B. As the Chief Justice remarked earlier in the judgment in that case, these freedoms lie at the heart of Hong Kong’s existence. Quite simply, the existence of such freedoms (including the freedom of assembly) make Hong Kong a truly free society. They are to be jealously guarded. 16.Although the fundamental freedoms are to be construed generously, they are not absolute. Notwithstanding that the freedom of assembly is expressed in unqualified terms in Article 27 of the Basic Law, Article 39 makes provisions for limits to be imposed on that right if the following conditions are met : -
17.The term “prescribed by law” assumes considerable importance in this appeal and indeed constitutes the main point of controversy. I will deal further with this aspect below. 18.The relevant provision in the ICCPR is of course Article 21 (set out in paragraph 11 above). That Article provides that any restriction on the right of peaceful assembly must be : -
These limitations are reproduced word for word in Article 17 of the Bill of Rights. 19.It will presently be necessary to analyze in detail these limitations on the freedom of assembly, but I should stress at this point that any restrictions on fundamental freedoms are to be narrowly construed and the burden lies on the party seeking to restrict (usually the Government) to justify such restrictions : - see HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442, at 457B-C, reiterated by the Court of Final Appeal in Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480, at 490D-E (paragraph 24). 20.Sometimes, particularly where the provision guaranteeing a right does not itself contain stated limitations, the courts have adopted the following test (in the form of three questions) in relation to any legislation that limits a fundamental freedom of right : -
21.I have here relied on the statements of principle of this Court in R v Man Wai Keung (No.2) [1992] 2 HKCLR 207 at 217 and in Lee Miu Ling v Attorney General [1996] 1 HKC 124, at 130D-G; and also the decision of the Judicial Committee of the Privy Council in Elloy de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and Others [1999] 1 AC 69, at 80G-H. 22.Where a provision containing the right also itself expresses the possible limits to that right (such as Article 21 of the ICCPR and Article 17 of the Bill of Rights), not forgetting of course Article 39 of the Basic Law, it is a somewhat moot point whether the three-stage test set out in the previous paragraph continues to apply. Certainly, in Ng Kung Siu, the Court of Final Appeal when dealing with the limits to the freedom of expression in the context of legislation prohibiting the desecration of the national and regional flags, did not see the need to use the three-stage test, instead concentrating on the limitations contained in Article 19 of the ICCPR (which deals with the freedom of expression). Upon analysis, the three-stage test is probably subsumed anyway within the limitations contained in Article 39 of the Basic Law and in the ICCPR. 23.These limits to the freedom of assembly reflect the need to balance the fundamental rights of the individual against society’s interests as a whole. In Ng Kung Siu, the Chief Justice drew attention to the Preamble of the ICCPR in which it is stated that an individual does have duties to other individuals and the community to which he belongs : - at 456I. In Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, at 704F-G, Lord Bingham of Cornhill said this regarding the jurisdiction of the European Court of Human Rights :-
24.In the decision of the Supreme Court of Canada in Committee for the Commonwealth of Canada v Canada (1991) 77 DLR (4th) 385, McLachlin J (now the Chief Justice) said this at 461-2 : -
The reference in that last sentence of this passage to “too much” discretion being given to persons in authority is an aspect to which I shall have to return. 25.The critical question in the present case is which way the balance tilts in relation to the relevant provisions of the POO. I now identify these provisions. The relevant provisions of the POO 26.The particular provisions which are said by the Appellants to be unconstitutional have already been set out in paragraph 9 above, namely, sections 13, 13A, 14, 15, 16, 17A, 43, 44 and 44A. They deal with the holding of public processions. 27.The POO has as part of its objects, as stated in the Preamble, the maintenance of public order and the control of meetings, processions, unlawful assemblies and riots. It dates back to 1967, the year of the Star Ferry riots. It has since been amended a number of times. We have been taken through the legislative history of this Ordinance and it will be necessary to refer to this aspect later. 28.A public procession is defined in section 2(1) as a procession in, to or from a public place. A procession includes a meeting held in conjunction with a procession. The term “meeting” is defined as including a gathering or assembly of persons convened or organized for the purpose of expressing their views on issues or matters of interest of concern to the general public or a section of the public. There is little doubt therefore that the gathering of persons on 10 February 2002 including the three Appellants was a public procession within the meaning of the Ordinance. 29.Part III of the Ordinance (headed “CONTROL OF MEETINGS, PROCESSIONS AND GATHERINGS”) contains most of the provisions under challenge. Section 6 states the general powers of the Commissioner of Police (whose powers can be delegated : section 52) relating to, inter alia, public processions : -
30.This provision is not specifically targeted by the Appellants but in view of the arguments raised by them, it must follow that this is likewise a provision that is said to be unconstitutional. Of note in this provision is the express reference to the concept of the Commissioner of Police considering it necessary to take action in the interests of national security, public order (ordre public) or for the protection of the rights and freedoms of others. These four aspects are exactly those specified in Article 21 of the ICCPR and Article 17 of the Bill of Rights, with the exception of public health or morals. Where any or more of these conditions apply, the intention behind section 6 is that the freedom of assembly can be restricted. In the judgment of this Court in HCMA 949/2002, handed down the same time as the judgment in this case, I have referred to these restrictions as the Permitted Restrictions. I now do so likewise for convenience. These stated restrictions fall to be scrutinised in the present case in relation to the critical issue whether the restrictions on the freedom of assembly contained in the provisions under challenge are “prescribed by law”. 31.Sections 13, 13A, 14 and 15 (which are under challenge) govern the position regarding public processions and can now be conveniently set out : -
32.Essentially, the scheme governing the regulation and control of public processions is as follows : -
33.The above summary of the scheme underlines the following features : -
34.Where a public procession is not authorized being in contravention of section 13 (for example where a valid notice of objection is issued by the Commissioner of Police or, as in the present case, where no notification is given to the Commission of Police at all) any person who holds or assists in the holding of the unauthorized assembly is guilty of an offence. Section 17A(3) of the POO states : -
35.The system I have just described relating to public processions also applies, with some differences, in the case of public meetings. I have already dealt with the definition in the Ordinance of “meeting” (see paragraph 28 above). A public meeting is a meeting that is held in a public place. The difference between a public meeting and a public procession seems only to be that the participants of a meeting do not move. Very similar (though not identical) requirements exist in the case of public meetings regarding notification to the Commissioner of Police and the power of the Commissioner of Police to prohibit or impose conditions (together with reasons having to be provided), these provisions only applying to numbers that exceed 50 : - see sections 7 to 11. The system of no objection does not exist in the case of public meetings. Unless prohibited by the Commissioner of Police, a public meeting can take place : - section 7(1). The important similarity, however, for present purposes, is the provision that the Commissioner of Police can only prohibit or impose conditions on a public meeting where he considers such “to be necessary” by reason of the Permitted Restrictions. Accordingly, just as in the case of section 6 of the POO, although the provisions relating to public meetings are not the direct subject matter for challenge by the Appellants in this case, their objections apply equally to these provisions as well. 36.I now turn to the issues in this appeal. Issues in the appeal 37.Put shortly, the Appellants challenge the constitutionality of those provisions in the POO set out in paragraph 9 above. Particular objection is aimed at the notification system contained in sections 13 to 15 of the Ordinance (the essential features of which I have described in paragraph 32 above). To be even more specific, the objection is over the power of the Commissioner of Police either to object to a public procession or impose conditions thereon where he reasonably considers such “necessary in the interests of national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others”. This proved ultimately to be the only real focus of the arguments in this appeal. 38.Apart from the notification system, the Appellants also challenged two other aspects of the POO : -
39.As to these matters : -
40.Mr McCoy also raised the preliminary argument that in fact the constitutionality of sections 14 and 15 of the POO were not engaged in the present appeal either. Therefore, he submitted, it was not necessary for the Court to determine the issue of whether the words in these provisions giving power to the Commissioner of Police to object to or impose conditions on public processions where he reasonably considered such necessary by reason of the Permitted Restrictions, were constitutional. The basis of Mr McCoy’s submission here was that since the whole notification system was not even embarked on by the Appellants, the relevant provisions were not engaged. It would be academic in these circumstances for the Court to determine the constitutional issues arising out of sections 14 and 15. 41.I regret that I cannot agree with these submissions. The whole basis for the Appellants’ refusal to give notification as required by section 13A of the POO was that they did not want to be subject to a system whereby the Commissioner of Police could object to or impose conditions on a public procession where he reasonably considered such necessary by reason of the Permitted Restrictions. The central feature of the notification system in the POO is not just a mere notification of a procession given to the police, but that the Commissioner of Police is able to object to the planned public procession (and thus prohibit it) or impose conditions thereon where he reasonably considers it necessary to do so by reason of one or more of the Permitted Restrictions. Seen in this light, sections 14 and 15 are integral to the whole notification system. If these provisions are held to be unconstitutional, as the Appellants invite this Court to hold, the whole basis of the notification system for public processions as contained in the POO disappears as well. In these circumstances, I conclude that these sections are engaged in this appeal and the issue of their constitutionality must therefore be resolved. 42.Is the notification system in the POO for public procession constitutional? The constitutionality of the notification system in the POO 43.On a general note, the Appellants’ objection to the notification system in the POO was not directed at the giving of notification of a proposed public procession to the Commissioner of Police as such. The general objection was to any system whereby the Commissioner of Police was in a position to object to or impose conditions on the public procession; in other words, participants in a public procession could not do so as of right and uninhibited in any way, instead being subjected to what was referred to as a licensing or authorization system. 44.I can deal with this general objection quite briefly :-
45.Still on a general note, the 1st Appellant argued in the alternative even if a notification and authorization system were by itself unobjectionable, this was so only if the courts would be the authorizing body rather than the Commissioner of Police. In short, he did not trust the police but trusted the courts instead. Forcefully though this was put, I do not agree with it. No justification, evidential or otherwise, was given for why the Commissioner of Police or his delegates could not properly discharge their responsibilities under the POO, other than the 1st Appellant’s inherent distrust of the police. 46.Generalities aside, I now turn to the arguments that were raised as to the constitutionality of the specific wording of the notification system contained in sections 13 to 15 of the POO. The Appellants made two main points, both by reference to the requirements of Article 39 of the Basic Law and Article 21 of the ICCPR : -
I deal with each in turn. These became the main points in this appeal. 47.In Gurung Kesh Bahadur, the Chief Justice said this about the term “prescribed by law” at 493 A-D (paragraph 34) : -
48.This passage highlights two points of focus. First, the particular law under consideration must be sufficiently precise and clear so that a citizen is given some indication as to how he must regulate his conduct. Secondly, a law must not be so vague as to give too wide a power to those in authority. These points of focus, two sides of the same coin, were referred to as the rationales of the doctrine of vagueness : see the decision of the Supreme Court of Canada in R v Nova Scotia Pharmaceutical Society, 74 CCC (3d) 289, at 306C-D. 49.Reference was made to Gurung Kesh Bahadur by Sir Anthony Mason in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381. There, the Court of Final Appeal had to consider the question whether the offence of misconduct in public office met the requirement in Article 39 of the Basic Law of being “prescribed by law” : - see 401J-403J. 50.I make the following observations in relation to this passage : -
51.These aspects of precision and flexibility apply equally when one considers the second point of focus referred to in paragraph 48 above, namely provisions which give discretionary powers to the authorities or officials such as the police. There is no doubt that sections 14 and 15 of the POO fall within this category. 52.Here, the courts have consistently warned of provisions that allow such a broad discretion to the authorities that the arbitrary exercise of power can take place : - see the decisions of the European Court of Human Rights in Malone v United Kingdom (1984) 7 EHRR 14, at 41 and in Hilda Hafsteinsdóttir v Iceland, Application No. 40905/1998, 8 June 2004 at paragraphs 55 to 56; the decisions of The Supreme Court of Canada in Attorney-General of Quebec v Irwin Toy Ltd at 617, Committee for the Commonwealth of Canada v Canada at 462B, Nova Scotia Pharmaceutical Society at 308E-H (referring to the “standardless sweep”) and 313D-F. 53.The objection here cannot in my view just be to the fact that a broad discretion is given to authorities such as the police. The test is higher. The objection must be that such a broad discretion is given to the authorities that an arbitrary and subjective exercise of power can take place; in other words, this can give rise to abuse. Of course, an arbitrary exercise or power or abuse can take place even in the case of a tightly drafted law, but that is not the situation that is relevant to be considered in this context. The arbitrary exercise of power or abuse is in the context of where such excesses are able to go unchecked. In other words, a provision will be objectionable where it permits the relevant authorities to exercise power in an arbitrary or abusive way without redress. In Nova Scotia Pharmaceutical Society, Gonthier J said this at 308G-H : -
He added at 313E : -
In Malone v United Kingdom, the European Court of Human Rights used the term “unfettered power”. In Re Munhumeso [1994] 1 LRC 282, at 294, Chief Justice Gubbay of the Supreme Court of Zimbabwe referred to “discretionary power of a regulatory authority being uncontrolled”. 54.With the above principles in mind, I now return to the notification system contained in sections 13 to 15 of the POO. The Appellants’ argument here was simply that the power given to the Commissioner of Police under sections 14 and 15 to object to public processions or impose conditions thereon was so vaguely worded that they did not satisfy the requirement of being “prescribed by law”. The concern was that these provisions give the police power that could be arbitrarily or subjectively exercised, or even abused. 55.In his clear and forceful submissions, Mr Blanchflower homed in on the words “national security or public safety, public order (ordre public) or for the protection of the rights and freedoms of others”. The focus was in particular on the concept of “ordre public”. It was argued that these were such difficult and vague concepts that in effect, much too wide a discretion was given to the Commissioner of Police. A subsidiary, but connected, argument was that without adequate guidance given to the police, these concepts could not be readily understood or even applied by a policeman. 56.I am not persuaded by these arguments. In my view, the notification scheme contained in sections 13 to 15 of the POO regarding public processions is not unconstitutional and the provisions contained therein do satisfy the “prescribed by law” requirement : -
57.It is in the nature of legislation dealing with public processions or assemblies or meetings that broad terms are necessarily adopted. To be unduly restrictive or, as the Appellants suggest, actually to enumerate the various situations in which powers of control can be exercised, would be to deny that degree of flexibility that appears to me to be essential for this type of activity. The police must be given necessarily wide powers of control so as to be able to deal with situations which may be difficult, if not impossible, at this stage to envisage. The decision of the Court of Final Appeal in Ng Kung Siu emphasizes the broadness of the concept of ordre public, but justifies by reference to the concept being a “function of time, place and circumstances” thus recognizing the difficulties in predicting situations which may arise. It must be recognized that time, place and circumstances may change in Hong Kong. 58.The point made in the previous paragraph provides in my view the answer as well to the second objection raised by the Appellants against the notification scheme, namely, necessity. Here, the Appellants had complained that no evidence was adduced to show that the amendments to the POO that brought in the concepts of the Permitted Restrictions were necessary to be introduced in Hong Kong. We were taken through various extracts from Hansard and the history of the public order legislation in Hong Kong since 1967. For my part, I have not found this exercise useful. I reject the approach whereby the Court is asked to look at the social position prevailing in Hong Kong at the time of the legislative changes so as to ascertain whether it was in fact necessary for the legislature to have passed the relevant legislation. This approach, quite apart from requiring the Court to second-guess the motives of the legislature in passing any legislation, seems to ignore the preventative nature of legislation. Legislation is not merely passed to deal with present mischiefs but also mischiefs which may arise in the future, the precise nature of which may not always be predictable. 59.I accept that in examining the aspect of necessity, the Court must ask itself the question whether the restrictions on the fundamental right in question are proportionate to the aims sought to be achieved thereby : - see Ming Pao Newspapers Ltd and Others v Attorney-General of Hong Kong [1996] AC 907, at 917D-E. I am of the view that the present POO reflects the legislator’s wish to have as much flexibility as is permitted under the Basic Law. The powers given to the police are not excessive and indeed are strictly within those boundaries expressly marked out in the Basic Law and the ICCPR themselves. The legislation is in my view both rational and proportionate to its aims. 60.When considering constitutional challenges, it may be appropriate for the courts to give weight to the way that the legislature has considered the legislation in question and exercised its judgment. This is sometimes referred to as the “margin of appreciation” accorded by the courts to the legislature. See here the decision of the Court of Final Appeal in Lau Cheong & Another v HKSAR (2002) 5 HKCFAR 415, at 448B-449A (paragraphs 102-4). For my part, I see no reason at all why this Court should not accord the legislature this “margin of appreciation” in its decision to adopt the same terms of limitation as those contained in the ICCPR itself. Quite apart from those aspects already gone into, a strong case can be made out that in choosing to adopt the same terms (which are to be interpreted in the same way as under the ICCPR : - see section 2(2) of the POO), the legislature has sought to avoid any problems that can arise through the use of different terminology. 61.Accordingly, I am of the view that the notification scheme for public processions contained in sections 13 to 15 of the POO is constitutional, whichever test is adopted (see paragraphs 20 to 22 above). It follows from this that section 17A is constitutional as well. 62.Lastly in this context, I should just deal with the decision of the Full Bench of Ciskei in African National Congress (Border Branch) and Another v Chairman, Council of State of the Republic of Ciskei and Another (1992) 4 SA 434. There, one of the issues was whether a provision (section 43 of the National Security Act of Ciskei) which enabled a magistrate to ban or impose conditions on a public gathering was constitutional. The section in question expressly permitted a magistrate to refuse authorization for the holding of a meeting if he was satisfied in the interests of “national security or public safety or for the safeguarding of public health, the preservation of public morale, the prevention of crime or disorder or the protection of the rights or others”. These were in exactly the same terms as the permitted restrictions found in the Ciskei constitution. The Court held that the provision was repugnant to the constitution. Mr Blanchflower relied on this case as authority to support his proposition that where a provision (such as sections 14 and 15 of the POO) merely as a matter of incantation, repeated the same wording as the constitutional limitations, such as those contained in Article 21 of the ICCPR), this was somehow not permissible. I have two comments on this. First, this was not the ground used by the Court to hold the offending provision unconstitutional in that case at all. In fact, nothing was said in the judgment of the Court regarding the coincidence in wording. Secondly, the reasons for the Court outlawing the provision there was that while it provided for safeguards in the case of decisions prohibiting public gatherings on the one hand, yet the power to impose conditions and the discretion there given to the Magistrate on the other hand were by contrast “totally unrestricted” : - at 454E. This was the critical objection in that case as I read it. Conclusion 63.To summarize the position, it is my view that the notification scheme contained in sections 13 to 15 of the POO is constitutional. For the reasons given above, the impugned provisions are not to be regarded as unconstitutional and are not struck down. 64.Accordingly, I would dismiss the appeals of the Appellants and uphold their convictions. Hon Stock JA : Introduction 65.The development of the International Covenant on Civil and Political Rights (“ICCPR”) from preparatory through deliberation phases to acceptance in 1966 was a process that engaged the international community, comprising a host of sovereign states with a wide divergence of legal systems and political philosophies, for about eighteen years. What emerged was the result of consensus on fundamental principles, which catered for widely disparate concerns and systems and to which the States Parties each agreed to give domestic effect. As illustrated by subsequent history, which includes a wealth of comment by the body entrusted with monitoring the implementation of the ICCPR, namely the Human Rights Committee; the work of experts resulting in the Siracusa principles; and the jurisprudence of the constitutional and other courts of States Parties, there is much of the ICCPR, in its detail and in its implied as well as express provisions, that has required interpretation. That is no surprise since:
66.It is important to acknowledge that historical background as well as the truths inherent in Professor Henkin’s analysis, for only by so doing can one recognise that the Covenant, similar agreements such as the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), and any constitutional instrument which echoes or reflects them, are but statements of fundamental rights and standards against which the acceptability of particular domestic measures to give effect to specific rights, and which may limit those rights, are gauged. And it is most particularly important to acknowledge that the Covenant does not absolve the States Parties from their duty to ensure that limitations of fundamental rights go no further than is necessary to achieve the legitimate objective of a particular piece of subject-specific legislation. Indeed, that duty is inherent in the Covenant itself. So too the Covenant does not absolve the States Parties of their obligation to ensure that laws are certain, that discretions reposed in the hands of the government and of public officials are so defined as to prevent or minimise the arbitrary exercise of power, thereby giving life to the principle that powers are subject to the rule of law and not to the rule of whomsoever happens to occupy a post at a given time. It is for such reasons that the Covenant does not envisage the mere incantation, without more, in standard domestic legislation, of the phrases of the Covenant or parts thereof. The Covenant envisages, and the Basic Law insists, that limitations upon rights are so framed as to be consonant with the principle of legal certainty. Beyond that, an assertion that phrases such as ordre public are understandable and can be explained to and applied by the lay official, in the same way as more familiar concepts of law may be said to be ascertainable and readily applied in day-to-day situations by those untrained in the law, is an assertion which is of limited value; for even if in this particular instance that were true – which, in no sense pejorative of the lay official, I very much doubt – that does not of itself validate the limitation. The issue of understanding and legal certainty – a requirement directed at he who wields power, as well as for the benefit of those affected by the use of that power – is only part of the exercise of ascertaining whether a signatory state, to whom is entrusted the encouragement of fundamental rights, let alone their protection, has limited a right in a particular context in a manner or to an extent that is permissible, for it must also demonstrate that it has limited the freedom no further than is necessary to achieve the legitimate objective of that legislation. 67.When the Public Order Ordinance, Cap. 245 (“the Ordinance”) was enacted in its present form in 1997, it prescribed circumstances in which public processions might be prohibited, or made the subject of conditions. In prescribing those circumstances, the legislature used a device, reflected in the subject-specific legislation of no other jurisdiction save one, so far as counsel’s research has revealed. The device was to utilize in subject-specific legislation the very terms (save for one phrase of no present consequence) of article 21 of the ICCPR without further definition, without moulding to the objective of the particular legislation, with no guidance whatsoever (whether in the legislation or in any executive or administrative rules) to those to whom the powers were given as to the permissible circumstances in which the fundamental right enshrined in article 27 of the Basic Law and by article 21 of the ICCPR, as applied by the Basic Law, might lawfully be infringed or limited. 68.It is correctly said on behalf of the respondent that the fact that the device has not been used elsewhere is not of itself determinative of its constitutionality. To the contrary, so goes the argument, the device was enlightened, for how better to ensure compliance with the ICCPR than to repeat its terms? It that is correct, it would follow that all limitations on the enjoyment of fundamental rights, save those that permit of no limitation, could similarly safely be prescribed. It might therefore be thought surprising that such a fool-proof, pre-packaged, and easy measure has not been adopted elsewhere, and that the Human Rights Committee, the very body that monitors compliance, has suggested that the provisions of the Public Order Ordinance do not comply with the Covenant. 69.The absence of precedent for the use of the device should however, in my judgment, be attended by no surprise at all; for in taking that course, the requirements of the Covenant and of article 39 of the Basic Law have been breached, as have the provisions of article 27 of the Basic Law. It seems clear to me that the use of that device without more:
The constitutional provisions 70.Article 27 of the Basic Law provides, in so far as is relevant to this appeal, that:
There is in that Article itself no qualification to those rights. Such qualification as is permitted is found in article 39 of the Basic Law which states that:
71.Article 2 of the ICCPR provides that:
72.Article 19 of the ICCPR recognizes the right of freedom of expression, the exercise of which:
73.Article 21 of the ICCPR is the article with which this case is concerned:
74.It will be noted in relation to these provisions:
Propositions 75.In the context of the issues in this case which arise in respect of sections 14 and 15 of the Public Order Ordinance and the relationship of those sections to articles 27 and 39 of the Basic Law and, therefore, article 21 of the ICCPR, I suggest that the following propositions are not controversial:
76.If these propositions be correct, then it should be apparent that an examination of the compatibility of a legislative provision with constitutional guarantees in the Basic Law can never properly be confined to a comparison of the mere words of limitation in an ICCPR Article with the words of limitation in domestic legislation, even assuming that the meaning and scope of the limiting words in either are clear. That is because there is more to the question of compatibility than appears on the face of the Article. So, for example, article 21 itself does not include the phrase “prescribed by law”, yet we know that that requirement is fundamental to the question of compatibility. So, too, the concept of proportionality is not expressed in the Covenant, but is nonetheless inherent in its scheme and intent. (See a comment to the same effect in relation to the European Convention, by Emmerson “Human Rights and Criminal Justice” 2-99). 77.It inexorably follows that it is not enough to say that since the legislation expressly confines limitations to those necessary in the interests, say, of ordre public, the limitations provided by the legislation necessarily and self-evidently fall within the concept of ordre public; for that is merely the start of any proper analysis of compatibility. What must then follow, quite apart from the issue of legal certainty, is the test of proportionality. So it was that, having determined that “the legitimate societal interests in protecting the national flag and the legitimate community interests in the protection of the regional flag are interests which are within the concept of public order (ordre public)”, the Court of Final Appeal in Ng Kung Siu, (1999) 2 HKCFAR 442, 460, went on to say that:
‘Prescribed by law’ 78.The phrase “prescribed by law” carries within it two concepts: the first is the requirement that the limitation be embodied, or must have a legal basis, within domestic law. The second, the one with which we are concerned, is that:
79.The principle was reviewed by Sir Anthony Mason NPJ in Shum Kwok Sher at pages 401-403:
And he referred to the Sunday Times case where the European Court of Human Rights had said:
80.Much has been made on the respondent’s behalf by Mr McCoy, SC of this last phrase, as if it were somehow a passport to vagueness, acceptable provided that somewhere the term has been explained or applied in practice. The Sunday Times case concerned the law of contempt, but more particularly a concept within that law, that which was referred to as the “pressure principle”; a concept that would, I dare say, easily enough be understood and, more importantly, quite readily be capable of application by newspaper editors and their legal advisers to whom the law of contempt is not unfamiliar. That example shows why rigidity may, in certain contexts, be unnecessary and undesirable, and exactitude difficult to achieve. The application of the principle of legal certainty must, naturally, be sensible and practical; and the point is always a contextual one since one:
The subject at hand in this case lends itself to much greater precision than presently we find in the Public Order Ordinance; and the essential principles of legal certainty remain and, I would say, must be reinforced where an essential freedom is at stake and where the power of limitation is backed by sanction of the criminal law, for the requirement is a doctrine of fundamental fairness not only because fairness requires the citizen to know his rights and the limits upon them with certainty, but also – and perhaps especially - because the official who wields power must know the limits of his power. This theme is constant:
And, to the same effect:
And, further:
81.It was contended that it will be easy enough for the police officer entrusted with the powers conferred upon him by the Public Order Ordinance to know the limits of those powers, for he has only to look at the decision in Ng Kung Siu. I do not share that view. It seems to me that it would be difficult indeed to draw for the public official who is entrusted with the powers of limitation granted him or her by the Ordinance a practical guide to the application of the new and infinitely wide concept of ordre public and, in particular, to its limits. It appears to me to be entirely fanciful to expect its application to be anything other than arbitrary when no such guide even exists. And the wider the limits – and I suggest that they could hardly be wider than as drawn in sections 14 and 15 of the Ordinance – the greater the room for arbitrariness:
82.Much the same concern was apparent in Gurung Kesh Bahadur (2002) 5 HKCFAR 480 where the Chief Justice said, at page 493:
83.It is with these principles in mind that sections 14(1) and (5) and section 15(2) of the Ordinance fall to be examined. In R v Chief Immigration Officer, Ex parte Bibi [1976] 1 WLR 979, Lord Denning in relation to the application of broad Convention principles in the context of immigration powers said this, at pages 984-985:
84.Whilst time has moved on, so that officials are now expected to be more conscious of and familiar with human rights concepts, I would nonetheless apply those sentiments to the terminology and width of sections 14(1) and (5) and section 15(2) of the Ordinance; and point especially to the fact that there exist no rules, no delineation, no guidance, whether within the Ordinance or promulgated under it or issued administratively, for the assistance of the inspector – for that is the level down to which these powers are delegated (see section 52(a) of the Ordinance). 85.It was said in argument that the policeman faced with an application for a procession, or indeed anyone advising the policeman, can go to the cases and commentaries. That is to suggest a novel form of recourse for a police officer. Nonetheless, let us see what the cases, let alone the voluminous commentaries, say. Ordre public 86.Ordre public was the subject of analysis in Ng Kung Siu (1999) 2 HKCFAR 442, the opening sentence of which analysis, at page 457F, is of great importance to this case:
87.I say that it is of great importance because the Ordinance is about public order. That is its title and that is its subject matter. The passage is also important because it illustrates at once that the parameters for limitation of the fundamental right have, by the Ordinance, been widened. To the significance of this I shall return when I address the question of necessity. 88.The Chief Justice then referred, at page 457, to Secretary for Justice v Oriental Press Group Ltd and Others [1998] 2 HKLRD 123 and to the various passages therein, including the following, at page 161:
The Chief Justice continued, at pages 458-460, as follows:
89.I ask then, rhetorically, what it is that the police inspector will say to himself when faced with the question of the extent to which he is empowered to prohibit a procession in a particular case or to impose conditions. “I may do so”, he will accurately say, “if I abide by the imprecise and elusive parameters set by these various passages which, in essence, tell me that I may do so where the common welfare so requires.” And that is the answer he will give whether as a result of his own research, or with the benefit of legal advice. 90.I can imagine few discretions so devoid of precision, so bereft of direction or guidance, so amenable to arbitrary decision. I accept that absolute precision is unattainable and that undue restriction may well be inimical to a legitimate legislative objective; yet I do not by this judgment advocate a public order law of absolute certainty or one that carries no flexibility. The point has been made in relation to the South African Bill of Rights that:
The provisions under attack in the Public Order Ordinance offend, in their effect, in much the same way, for they do little more than say that a police officer of appropriate rank may prohibit or impose conditions upon a procession or assembly in circumstances permitted by the articles of the ICCPR relating to assemblies and processions. There is no attempt at any precision to cater for the ‘nature and content of the subject matter in question’ (see the passage from Gurung Kesh Bahadur at paragraph 18 above); and there is no guidance of any kind. It is not my task to draft a provision that goes no further than is necessary, or which provides suitable safeguards for the proper enjoyment of the fundamental right. That is an objective of that might be achieved in different ways, and we were taken to examples of legislation elsewhere illustrating safeguards and guidelines. Yet the Public Order Ordinance reveals no safeguards. The discretion is left entirely in the hands of the police. The objective to preserve and promote the freedom of assembly is not stated as a consideration. The discretion is not tailored in any way save by reference to the broadest of terms of the Covenant, and there is no guidance whatsoever as to the factors which should, even generally, prevail so as to undermine or affect the fundamental right. 91.I note, in passing, the reservations expressed about the utility of recourse to legislation elsewhere. It seems to me, with respect, an acceptable (and not unusual) recourse, if only as an exercise in illustrating readily achievable attempts, for similar subject matters, to limit the potential for undue intrusion upon a fundamental right. I note, too, reference to the suggested broad terms of legislation elsewhere. I would only respectfully say that there is in my opinion a significant difference in scope and common understanding between “serious public disorder” on the one hand, and “ordre public”, on the other; that the powers of prohibition in the UK Act are materially more circumscribed than under the Public Order Ordinance; that in Queensland, prohibition depends on a court order; and that one knows not whether the width of the Irish provision has been the subject of challenge. 92.It is at the end of the day a question, I suggest, of subject matter and degree, of framing a legitimate objective with due regard to the right affected and to safeguarding the rule of law:
93.Mr McCoy returned, time and again in the course of argument, to the fact that the Ordinance required the officer, if he banned a procession or if he attached conditions to one, to provide reasons for his decision. That, with respect, is not a valid answer to the requirement of legal certainty, for it addresses a phase or stage too late in the analysis of constitutionality. If the requirement that the limitation itself be prescribed by law is not met because the boundaries of a discretion are too ill-defined, then the provision itself is bad. 94.Then reliance has been placed on the comment in Ng Kung Siu that public order (ordre public) is a “function of time, place and circumstances”, as if that justifies the conferment of an almost limitless discretion. That, in my opinion, is to misunderstand the intent of that comment. The intent of the comment, of the reference to time place, and circumstances, is illustrated by the case of Ng Kung Siu itself, where the question was whether a very well-defined limitation, spelt out in section 7 of the National Flag and National Emblem Ordinance and section 7 of the Regional Flag and Regional Emblem Ordinance, was one that fell within the concept of ordre public. The concept was not one to be addressed in some vacuum; and in the time, place and circumstances of Hong Kong, with its new constitutional order and recent history, the court held that the protection of the flags in question was a legitimate interest forming part of the concept of the general welfare of the collectivity as a whole. In other words, whether a restriction (in the case of Ng Kung Siu, a very specific, limited and enacted restriction) can be justified as being consonant with the general welfare is a matter of time, place and circumstances; whereas what Mr McCoy appeared to be asserting was something much narrower in concept than that, namely, that since the time, place and circumstances of demonstrations will vary, the parameters of the statute-specific discretion must necessarily be at large. That is not, to my mind, logical. What is logical is that the parameters of a discretion must be such as to enable it to be exercised in accordance with the facts of each case, which facts will almost inevitably differ from event to event; but that those parameters must nonetheless be clearly defined and go no further than reasonably necessary in achieving a legitimate legislative objective. Whether the clearly defined limiting power falls within the requirements of ‘ordre public’ depends upon what ‘ordre public’ dictates at a given stage of the history and circumstances of the society affected. But the power itself must adequately be circumscribed. “A law which confers a discretion is not in itself inconsistent with this requirement [of sufficient precision] provided that the scope of the discretion and the manner of its exercise are indicated with sufficient clarity, having regard to the legitimate aim in question, to give the individual adequate protection against arbitrary interference”: see Refah Partisi v Turkey (2003) 37 EHRR 1, 26. It is not the fact of the discretion which in the instant case is objectionable. It is its lack of any clarity, any definition, any guide as to its exercise, that leaves it readily open to an interpretation so wide as to erase the very protection that it purports to embrace. 95.The point has been made that any wrongful exercise of power by the police will be checked by the courts, with the Appeal Board as the first avenue of recourse. Yet I would respectfully suggest that that leaves in tact the nature and extent of the power conferred on the police; and if the power is unacceptably broad, recourse to the Appeal Board and to the courts is of no avail so long as the law under which the officer acts is held to be valid. Thus:
‘Rights and freedoms of others’ 96.We have heard little in argument about the width of the phrase “the rights and freedoms of others”. “The rights and freedoms of others” is not a term restricted to the rights and freedoms enumerated in the Covenant. Nor, I suggest, is it, in our present context, restricted to the rights and freedoms specifically enumerated in the Basic Law, for article 39(2) provides that “the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law”, a reference to rights and freedoms at large. So:
97.This Ordinance gives an inspector of police entirely free rein in determining which rights and freedoms to prefer. The absence of any guide as to the particular concerns or rights to which limitations in the context of processions would normally be directed, such as safety, passage, incitement to violence or hatred, preservation of property, excessive noise, itself renders the limitation provisions ripe for arbitrary application. It is however not strictly necessary for me to adjudge this specific point of the width of ‘rights and freedoms of others’, nor the question whether ‘national security’ is sufficiently defined or proportionate, for in my opinion the use of the phrase “ordre public” as it is, and without further delineation of the grounds for interference, itself falls foul of the requirement that the limitations be prescribed by law. ‘Prescribed by Law’: Conclusion 98.In my judgment and for the reasons given, the challenge that has been mounted upon the powers given by the Ordinance to the Commissioner to impose conditions upon and effectively to prohibit the holding of assemblies, as contravening the constitutional requirement that they be ‘prescribed by law’, is a valid challenge; and is one that I would uphold. Necessity (1) The issue 99.Article 21 of the ICCPR precludes the imposition of restrictions on the exercise of the right of peaceful assembly … ‘other than those [restrictions] which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.’ The argument in this case, a point separate from the issue of legal certainty, was that it has not been shown that the impugned restrictions were necessary. 100.As I have intimated at paragraph 75 above, restrictions on fundamental freedoms must be rigorously examined by the courts; and justified by the Government. To show that the restriction is necessary for the protection of one or more of the listed interests, it is not enough to show that the imposed restriction is within a permitted aim. What must be shown is that the restriction imposed is one that is, in the circumstances that prevail, necessary for the protection of one or more of those interests. “‘Necessary’ should be given its ordinary meaning and … no assistance is to be gained by substituting for ‘necessary’ a phrase such as ‘pressing social need’” (Ng Kung Siu, page 460F-G). The burden of showing that necessity is on the Government, and “[to] be justified, any curtailment of freedom of expression must be convincingly established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved” (Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 200). Once that need is demonstrated, it must then be shown that ‘the means used to impair the right or freedom are no more than is necessary to accomplish the objective’ (R v A (No. 2) [2002] 1 AC 44, 65). That must be shown convincingly (Barthold v Germany (1985) 7 EHRR 347, para 58); or compellingly (Committee for Commonwealth of Canada v Canada, (1991) 77 DLR (4th) 385, 462). 101.We were taken at some length to the legislative history of the Public Order Ordinance and to the reasons given before the enactment of the 1997 Ordinance; and in particular to a debate in 2000 in which its provisions were the subject of explanation. Questions of necessity and proportionality are ultimately ones for the courts (see R (Profile) v BBC [2004] 1 AC 185, 240), and it is established that in ascertaining policy objectives, and in addressing the question of proportionality, the court is entitled to look at such material (Wilson v First County Trust Ltd (No 2) [2003]3 WLR 568). 102.In the course of submissions, some degree of emotive advocacy was employed as justification for the change of law in 1997. It should go without saying that it is no part of the court’s role to immerse itself in emotive controversy, and I intend to adhere to the issues raised by reference only to principles that arise as a matter of constitutional and administrative law. The reason for the repeal of the Public Order Ordinance as enacted in 1995 did not purport to be driven by any suggestion that that Ordinance was incompatible with the ICCPR, so the question at hand is not whether there was or was not justification for the repeal, and therefore for an ordinance to replace it, but simply whether the relevant sections of the new Ordinance are or are not consistent with the Basic Law in that Law’s application of the ICCPR. There were some suggestions made, it seemed at one stage, by Mr McCoy, that the promoters of this legislation had in mind to make the Ordinance ICCPR-compliant. That was self-evidently not the reason for the new enactment. By repeating phrases from the ICCPR, it was no doubt the intention of the draftsman and of the Government that the new law should be consistent with the Covenant; yet that was not why the boundaries of the discretion invested in the Commissioner of police were widened, as widened they indeed were. (2) Legislative history 103.The 1967 Ordinance, enacted in the wake of the 1967 disturbances and the unsettled circumstances in which the territory then found himself, carried at its head virtually the same preamble as the 1997 Ordinance:
The 1997 version is different only in that the word ‘processions’ is inserted, an insertion that was first made in 1995. 104.The ground upon which the Commissioner of Police was then (1967) empowered to control public gatherings was:
He was required to grant a licence for a public meeting or procession:
and he had the discretion to refuse a licence if the applicant had previously contravened the law or the Ordinance, or if the procession had been advertised in contravention of the requirements of the Ordinance (Section 7). 105.He was further empowered to cancel a licence or amend its conditions only if:
106.It is not necessary to decide for the purpose of the present case whether a licensing system, whether or not actually so called, is or is not constitutional. All we need to know at this point is the clear and limited circumstances in which, even in troubled times, the powers to stop a procession were defined, still leaving an element of discretion to the Commissioner of Police to enable him to address the circumstances of each case. That was at a time when the ICCPR and the dictates of human rights instruments were not part of the daily diet of the Hong Kong constitutional lawyer, or the draftsman. 107.Changes were made in 1980 and again in 1995 by the details of which changes this already long judgment need not be burdened. It suffices to say that in 1980 there was introduced the concept of an ‘unauthorized assembly’ and the grounds then, and in 1995, for prohibition referred to likely prejudice to ‘maintenance of public order’, to ‘use for an unlawful purpose’, and to ‘the interests of public safety’. 108.By a decision of the Standing Committee of the National Peoples Congress adopted on 2 February 1997, the Public Order Ordinance of 1995 was declared to be in contravention of the Basic Law. Why it was in contravention was not explained in that Decision, but it suffices for present purposes to say that it was not because the previous law was said to contravene the Covenant. There is some indication in a debate of the Provisional Legislative Council on 14 June 1997 that repeal followed a determination that the 1995 Ordinance was not acceptable because it was not a law that was “basically unchanged” from that enforced in 1984, which was the date of the Joint Declaration which provided that the Hong Kong’s laws would remain basically unchanged. 109.It is obvious that the circumstances in which assemblies may be curtailed, have, by reason of the 1997 Ordinance been very considerably widened by comparison to any of the previous Ordinances. There can be no argument but that ‘ordre public’ and ‘in the interests of the rights and freedoms of others’ are in conception, and in scope for application, considerably wider than ‘public order’, ‘public safety’ and ‘unlawful purpose’. (3) The Government’s case 110.The Ordinance itself gives no hint of the factors which demand such wide powers, powers covering all conceivable circumstances and conditions. So we need to turn to the material to which our attention has been drawn. 111.In April 1997, the Chief Executive’s Office issued a Consultation Document, entitled “Civil Liberties and Social Order”. Paragraph 3.3. of that Document stated that although Hong Kong took great pride in the exercise of freedoms by the community:
Then:
Then the proposals which run along the lines of the present Ordinance were summarized. 112.I pause to make the following comments:
113.The position of the Regional Government–in–waiting is to be identified in the speech of the Secretary for Policy Co-ordination to the Provisional Legislative Council on 10 May 1997, in the Official Record at page 75. In that speech, the basic principles of the proposal are stated to be:
114.There then follows a discussion of the definitions of “national security”, “political organizations”, and “foreign connection”, the latter two in relation to proposed amendments to the Societies Ordinance. The speech is notable for its absence of any reference to the reach of the “rights and freedoms of others”; and for the absence of any attempt at making the limitations as narrow as may be. Subsequent debates of the Provisional Legislature provide no further illumination or purported justification for the breadth of the powers of prohibition. 115.The only other official statements to which one has recourse for statements of justification are those of the Secretary for Security and the Secretary for Justice in a Legislative Council debate on 20 December 2000, reported in Hansard at pages 2154 and 2171 respectively. The assertion is there made by the Secretary for Security that the new arrangements “have generally struck a proper balance in the broader interests of the community” (page 2156); that “history tells us that a single spark can start a prairie fire” (page 2157); a denial that the system was a licensing system in disguise; and that the Ordinance “… clearly states that such powers [of the Commissioner of Police] must not be exercised wantonly and the police must comply with the restrictions imposed by law” (pages 2159-60). One pauses to note in this speech, as elsewhere in the material we see, an apparent assumption that the repetition in the legislation of the words of article 21 as to the extent of limitation of the right was all that was needed, and an absence of specificity in respect of, or justification, for the breadth of the powers conferred. 116.The Secretary for Justice, at page 2173, recognised the principle of proportionality and “the principle of the margin of appreciation”, and then we find this:
And then again this, at page 2175:
117.I had until recently thought that there was considerable significance in the fact that the Secretary for Justice had told the legislature that one of the purposes intended was for minimizing ‘public order’ problems, in that if that were the legislative objective (and the same term is used in the other Government speeches to which we were referred) then the use of the words ‘public order (ordre public)’ in the legislation self-evidently went further than was required to achieve the stated objective. But I now note that the speeches were delivered in Cantonese, and we were only provided with the English translations; and that the words used by the Secretary were in fact the same in Cantonese as the words used in the Ordinance which my Lord, Yeung JA has identified in his judgment as carrying the same meaning as ‘ public order (ordre public)’. (4) Analysis 118.One is bound recognize that the concerns attendant upon major political changes in the history of any territory may very well require particular attention and also changes in legislation; and policy considerations are pre-eminently for the policy makers, not for the courts. Yet the law is for the courts, and the issue of law which this court has to decide is whether it has been compellingly demonstrated by the Respondent in this appeal that the impairments on the freedom of assembly, as they appear in the new Ordinance were or are, in their extent, necessary for the protection of the various interests prayed in aid. The aim of the restrictions was said to be to protect those interests. So far so good; but to say that the overall aim is itself a permitted aim is not enough. Article 21 requires that such restrictions as are imposed (‘those imposed’) must be shown to be necessary in the interests of national security, public safety, public order (ordre public) and so on. 119.In 1967, for example, restrictions were imposed on meetings and the parameters of those restrictions were specified: where apparently necessary to protect public order. Clearly it would then have been easy to demonstrate that it was necessary to curtail freedom of assembly to that extent and for that purpose. Whether the means used then went beyond what was required would have been the next question. 120.If the question were asked: what is the extent of the restrictions imposed in 1997 on the freedom of assembly, the answer would have to be: the widest possible to accord with the words used in article 21; much wider than ever before. The next question would then have to be: well, what is the demonstrable need for, or the demonstrable problem which requires, curtailment of the freedom on the most extensive grounds possible? That it is the question that, in my opinion, had to be answered in this case; for it seems to me that it would only be in wholly unusual and special circumstances or for unique problems that could render necessary the power to prohibit assemblies on the most extensive grounds possible. 121.It also seems to me that in order to show that a stated objective justified a restriction, and that the extent of the restriction was proportionate to that objective, the objective must be delineated or explained with sufficient clarity to enable those assertions properly to be tested; and I confess that I have some difficulty in culling a clear objective from these debates and other explanations. Be that as it may,in my judgment the burden of showing the need for the very extensive powers of curtailment has not been discharged; and for this further reason, I would allow this appeal. Whilst I can see justification put forward in the papers for a ‘national security’ ground, the respondent has not demonstrated the need to import the width of restrictions in so far as they go beyond public order, public safety, and national security and in so far as they permit curtailment of the freedom of assembly in the interests of the rights of others, regardless of the nature of the right and without reference to the extent of any infringement of such a right. Ramifications 122.I find disturbing the notion that the terms of limitation in Article 21 imported without more into a subject-specific item of legislation will suffice, for that notion, if correct, carried to its logical conclusion, provides a recipe for wide-scale encroachment upon fundamental freedoms. Whilst I accept, indeed endorse, the contention that some subject matters will allow of broader discretions and terms than others, I nonetheless use an example of another ordinance to illustrate my point. The example I use is the Film Censorship Ordinance, Cap. 392. The freedom which it most obviously affects is the freedom of expression which we see in Article 19 of the Covenant, which is there said to be one that may be restricted, where necessary:
123.Section 10(4) of the Film Censorship Ordinance enables the censor to refuse to approve a film for exhibition “because of a matter referred to in subsection (2)”. Subsection (2) of section 10 provides as follows:
And subsection (3) provides:
124.I hardly think that it would do for the power to be drawn in such a way so as to enable the censor to prohibit exhibition merely where he “reasonably considers prohibition to be necessary for the protection of national security or of public order (ordre public) or of public health or morals”. One has only to compare the provision now in place with the broader provision that simply imports article 19 to see why that is so. Section 10 is an instance of what is required to make a limitation subject–specific, to mould the boundaries of a discretion to the legitimate (and clear) objective of a statute, and to render the exercise of that discretion a practical and clear matter for those who are affected by it and for those who possess it. The example I have injected into the Film Censorship Ordinance may be thought to be an example ad absurdum. Yet it is sought to uphold precisely the same manner and breadth of limitation in respect of the Public Order Ordinance upon that which is essentially the same freedom. 125.I commented at an early stage of this judgment that there was but one instance found by counsel where the terms of, or similar to that of, an international instrument has been incorporated in unqualified fashion as the scope of limitation in a subject-specific statute. The instance is seen in ANC v Chairman, Council of State of Ciskei (1992) 4 SA 434; and it will be seen that the court in that case viewed the section as far too wide to survive constitutional scrutiny. Fall-back position 126.Mr McCoy was driven to argue that if he failed on the primary points of legal certainty and necessity, he would invite the court to ‘read down’ the sections so that the term “ordre public” be deleted leaving only public order. That was permissible, he said, because the Chinese version of the Ordinance did not include the phrase “ordre public” in parenthesis. 127.I do not find this an attractive argument because, quite apart from remaining problems that may exist in relation to the requirements of legal certainty (for example, as to the rights and freedoms of others), it can never have been intended that ‘public order’ be read in the Chinese version in a way different from that in the English, as if divorced from the concept of ordre public. My own expertise is not such that I can comment on problems of translation, but there was, I suspect, difficulty in encapsulating the concept of ordre public in a few Chinese characters; and since the objective of the exercise was clearly to copy the terms of article 21 of the Covenant, we can safely proceed on the basis that there is no disparity between the English and Chinese versions; the more so because
128.I am in the event comforted in this approach by the expert and better informed analysis of this issue by my Lord, Yeung JA. The Basic Law, and Sections 14 and 15 of the Ordinance 129.For the reasons I have provided, it is my opinion that the need for the extent of the powers conferred on the police by this Ordinance to curtail assemblies and processions has not been demonstrated by the Respondent and, further, that the powers conferred are so wide and so drawn as to fail the test of legal certainty. If the question were asked how widely the power to ban processions was drawn, the true answer would have to be: “As widely as was conceivable given the terms of the ICCPR”. If the question were asked what guidance has been given to the Commissioner of Police, either in the legislation or elsewhere, to the interpretation and limits of his power, the truthful answer would have to be: “None whatsoever”. If the further question were asked what attempt has been made at legal certainty so that those affected by the power, and those who are to wield it, understand the governing terms, the answer would have to be: “None at all”. 130.I am satisfied that sections 14(1), 14(5) and 15(2) and, in so far as may be relevant to this case, section 6 of the Public Order Ordinance are inconsistent with articles 27 and 39 of the Basic Law and, in so far as may be necessary, I would make a declaration to that effect. The consequences for section 13 131.The charges against the appellants were (in the case of the first appellant) of holding and (in the case of the other two appellants) of assisting in the holding of “a public procession after the same had become an unauthorized assembly by virtue of section 17A(2) of the Public Order Ordinance, Cap. 245”. 132.Section 17A(2) provides, in so far as is germane to this case:
133.The factual basis upon which the appellants were convicted was that they had failed at the first hurdle, namely, the giving of notice. That is an accepted fact. The question therefore arises whether the issues about the validity of sections 14 and 15 are properly engaged in this appeal. At one stage, Mr McCoy was minded to say that they were not. The court therefore adjourned to enable counsel to prepare full argument specifically on that point. Mr McCoy came to concede that the offence created by section 17A could not survive a finding that sections 14 and 15 were unconstitutional. Whilst section 13(1)(a) was severable in the sense that the section on its own made sense were paragraphs (b) and (c) to be deleted, severance was not conceptually, as he put it, acceptable. In my judgment, that concession and that approach is correct. 134.As was said in the debate in the Legislative Council in December 2000, the provisions of the Public Order Ordinance for the holding of processions “should be taken as an integrated whole” (page 2156); and (at page 2174) that:
135.The offence is that of holding a procession that is unauthorized, not an offence of holding a procession without giving notice. Authorization is the key to the scheme. Notice is given, not for its own sake, but in order to enable the Commissioner of Police to decide one way or the other how to exercise a power. If the power thus conferred is not constitutional, the rest falls away. What would remain if deletions were made to section 13, leaving only the requirement to give notice is:
Conclusion 136.It follows therefore, in my judgment, that once sections 14 and 15 in their material parts go, so does the offence of holding an unauthorized assembly where the absence of authorization results from a failure to comply with the requirement of section 13(1)(a) of the Ordinance. 137.That being so, the convictions cannot, in my opinion, stand. I would allow the appeals and quash the convictions in the case of each appellant. Hon Yeung JA : 138.I have the advantage of reading the draft judgment of Ma CJHC. I agree with his judgment. I only wish to add the following. 139.The Public Order Ordinance (the POO), before its amendments in 1997, empowered the Commissioner of Police (the Commissioner) to prohibit the holding of any public procession or impose conditions in respect of any public procession, if he reasonably considered it necessary in the interests of public safety or public order. 140.The Chinese text of the relevant sections referred to “public safety” as “gongzhong an’quan” (公眾安全) and “public order” as “gong’an” (公安). 141.The POO, with its amendments in 1997, allows the Commissioner to control and direct conduct of all public gatherings and procession if he reasonably considers it necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others. 142.The Chinese text of “public safety” after the amendments becomes “gonggong an’quan” (公共安全) instead of “gongzhong an’ quan” (公眾安全) and “public order (ordre public)” becomes “gonggong zhixu” (公共秩序). The reference to “public order”- “gong’an” (公安) is obliterated all together. 143.The Chinese text of the amended POO does not draw any distinction between “public order” and “ordre public” as they are referred collectively as “gonggong zhixu” (公共秩序). 144.Mr McCoy SC, as part of his contention that the provisions in the amended ordinance do not constitute unnecessary restrictions in a democratic society, suggests that there are discrepancies between the authentic texts of the POO in the two official languages. 145.He suggests that in so far as “ordre public”denotes aconcept wider than the common law notion of law and order (public order), such distinction is not borne out by the use of the single Chinese term-“gonggong zhixu” (公共秩序) which appears to refer to “public order” only. 146.In the light of such discrepancies, Mr McCoy argues, as his fall-back position, that the term “public order (ordre public)” should be “read down” to mean just “public order”, in which event, there would be no extension of the scope of “public order” despite the use of the term “public order (ordre public)”. 147.He seeks reliance on the case of R v Tam Yuk Ha [1996] 3 HKC 606. 148.Mr McCoy’s reasoning is premised on his incorrect assumption that “public order” and “ordre public” as used in the POO are to be read separately as two words, each with a distinct meaning and that “gonggong zhixu” (公共秩序) refers just to “public order”. Only with this incorrect assumption would it appear that there is any discrepancy in the two authentic texts of the relevant provisions in the POO. 149.The term used in the amended POO is not “public order” and/or “ordre public”, but “public order (ordre public)” and it denotes one concept only, however wide the scope of such concept may be. 150.The following passage from the judgment of Li CJ in HKSAR v Ng Kung Siu & Another (1999) 2 HKCFAR 442 at p. 457 perhaps demonstrates the point aptly:
151.I accept that the various Chinese terms that had been used or are being used in the POO may be imprecise, elusive, and possibly confusing. 152.“gong’an” (公安) in its normal usage, is just an abbreviation for “gongzhong an’quan” (公眾安全) or “gonggong an’quan” (公共安全), yet in the Chinese text of the POO “public order” becomes “gong’an” (公安) and “public safety” becomes “gongzhong an’quan” (公眾安全) before the 1997 amendments and “gonggong an’quan” (公共安全) after the 1997 amendments. 153.“zhixu” (秩序) means orderly and not chaotic. When it is prefixed by “gonggong” (公共) (public) to become “gonggong zhixu” (公共秩序), its precise meaning may not be easy to comprehend fully although reasonable people should have no difficulty in understanding what in substance the term embodies, in the context of Hong Kong. 154.It is important, however, not to equate ““gonggong zhixu” (公共秩序) to “gong’an” (公安). The legislature created a new term “gonggong zhixu” (公共秩序)- “public order (ordre public)” in place of “gong’an” (公安) - “public order” in 1997; the obvious intention is distinguish one from the other. 155.With the creation of any new term in legislation, there are bound to be associating difficulties, but such difficulties do not make the term “gonggong zhixu” (公共秩序) - “public order (ordre public)” too vague or too uncertain so as to be constitutionally objectionable. They do not create discrepancies between the Chinese and English texts of the term to justify the “reading down” of “public order (ordre public)” to mean simply “public order” as suggested by Mr McCoy. 156.Indeed, the imprecise and elusive nature of the term “public order (ordre public)” itself was also recognized by Li CJ in Ng Kung Siu (supra) when he said the following at p. 459:
157.When “public order (ordre public)” is taken as one term and not separately as “public order” and/or “ordre public” and “gonggong zhixu” (公共秩序) as meaning more than just “public order”; there is, in my view, no discrepancies between the authentic texts in the two official languages as suggested by Mr McCoy. 158.Even if there were the discrepancies, I do not accept Mr McCoy’s suggestion that the term “public order (ordre public)” should be “read down” so that the reference to (ordre public) could be ignored. 159.Section 10B(3) of the Interpretation and General Clauses Ordinance, Cap. 1 provides:
160.The court is not entitled to “read down” an authentic text in either of the official languages, but is obliged to reconcile the authentic texts in both official languages, having regard to the object and purposes of the Ordinance (Emphasis added). In so far as Tam Yuk Ha (supra) adopted a different approach, such approach had been held by the Court of Appeal to be incorrect (see HKSAR v Tam Yuk Ha [1997] 2 HKC 531). 161.The 1997 amendments to the POO have introduced in a completely new term of “public order (ordre public)”- “gonggong zhixu” (公共秩序) in place of “public order”- “gong’an” (公安). 162.Article 39 of the Basic Law (the BL) stipulates that “the provisions of the International Covenant on Civil and Political Rights (the ICCPR), 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”. 163.Article 21 of the ICCPR recognizes the right of peaceful assembly and provides that “no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others”. The terms “public safety”, “public order (ordre public)”, “the protection of public heath” and “the protection of rights and freedoms of others” in the POO are to be construed in the same way as the ICCPR (see s 2(2) of the POO). In the Chinese text of the POO, there is, of course, the express reference to “gonggong zhixu” (公共秩序). 164.The 1997 amendments to the POO were made clearly to ensure that the domestic legislation of the Hong Kong Special Administrative Region (the HKSAR) complies with provisions of the ICCPR and hence the reproduction of the terms - “national security or public safety”, “public order (ordre public)”, …”protection of the rights and freedoms of others”. 165.Mr McCoy’s suggestion that we should “read down” public order (ordre public) to mean simply public order is not the proper way to reconcile the differences (even if such differences do exist) in the two authentic texts of the relevant provisions in the POO. 166.If there is indeed any difference between “public order (ordre public)” and “gonggong zhixu” (公共秩序) as suggested by Mr McCoy, the only proper way to reconcile the discrepancies, having regard to the object and purposes of the POO, is to construe “gonggong zhixu” (公共秩序) to have the same meaning as “public order (ordre public)” as articulated by Li CJ in Ng Kung Siu (supra). 167.Mr Blanchflower SC argues that there is no pressing social need for the introduction of the “notification system” under the POO and in so far as sections 13, 13A, 14, and 15 constitute restrictions to the freedom guaranteed under Article 27 of the BL and Article 17 of the Hong Bill of Rights Ordinance Cap 383, such restrictions are unconstitutional. 168.Mr Blanchflower suggests that the 1997 amendments expand the scope of the restrictions when there is no need for such extension. On this issue, it is perhaps helpful to recite Li CJ’s comments in Ng Kung Siu (supra) at p 460, on the meaning of “necessary” in the context of the POO:
169.Article 27 of the BL is one of the articles under Chapter III, with the title: “Fundamental Rights and Duties of the Residents”. It must be recognized that for every right, there is a corresponding duty. 170.It must also be remembered that the rights guaranteed under the BL are not exclusive to a few or a small group of Hong Kong residents, but to all Hong Kong residents. 171.Article 4 of the BL obliges the Government of the HKSAR to safeguard the rights and freedoms of the residents and other persons of the HKSAR in accordance with law. 172.The Government of the HKSAR is entitled to impose restrictions on the exercise of freedom of assembly if the restrictions are necessary in a democratic society in the interests of national security or public safety, public order (ordre public). 173.The Government of the HKSAR is obliged to ensure that the exercise of the rights by some residents will not adversely affect the rights and freedoms of other residents and other persons in the HKSAR. 174.The right of public assembly is of course a fundamental right, being one aspect of freedom of expression. However rights and freedoms cannot be absolute or else they are no different from anarchy and can lead to mayhem and lawlessness. 175.Mr Blanchflower accepts this, but seeks to argue that the restrictions imposed under sections 13, 13A, 14, and 15 of the POO are unnecessary. 176.In particular, he suggests that in so far as the 1997 amendments to the POO enlarge the scope (from public safety or public order to national security or public safety, public order (ordre public) or the protection of rights and freedoms of others) upon which the Commissioner can exercise control and direct conduct of all public gatherings and procession, such enlargement has not been shown to be necessary. 177.The preamble to the BL refers to the signing of the Joint Declaration …“affirming that the Government of the People’s Republic of China will resume the exercise of sovereignty over Hong Kong with the effect from 1 July 1997…” It also refers to the establishment of the HKSAR as “Upholding national unity and territorial integrity…” 178.Apart from Article 4 (safeguarding the rights and freedoms of the residents of the HKSAR), Article 39 (implementing the provisions of the ICCPR), other Articles in the BL also obliges the Government of the HKSAR to enact necessary laws to comply with the provisions of the BL. 179.Thus, the 1997 amendments to the POO, including the restrictions on the exercise of the right of peaceful assembly, were brought about by the implementation of the BL on the resumption of sovereignty over Hong Kong by the Government of the People’s Republic of China with effect from 1 July 1997 and could not be said to be unnecessary. As Li CJ commented in Ng Kung Shu (supra) also at p. 460:
180.Mr Blanchflower also complains that “gonggong zhixu”(公共秩序) “public order (ordre public)” had not been formulated precisely enough to meet the requirement of being “prescribed by law”. I do not agree. 181.I have commented that reasonable people should have no difficulty in understanding what in substance the term (both in Chinese and in English) embodies. Despite its elusive nature, which is necessary as articulated by Ma CJHC in his judgment, the term is certainly sufficiently precise from a legal point of view. 182.I am of the view that the restrictions imposed under the POO are necessary in a democratic society in the interest of national security or public safety, public order (ordre public), and for the protection of the rights and freedoms of others. The relevant provisions in the POO are not vague or uncertain and are not constitutionally objectionable. 183.For the reasons given by Ma CJHC, I would also dismiss the appeals of the Appellants and uphold their convictions. Hon Ma CJHC : 184.It follows from the above that, by a majority decision, the appeals are dismissed and the convictions upheld.
Mr Gerard McCoy SC, Mr Gavin Shiu SADPP & Mr David Leung SGC of the Department of Justice for the Respondent/HKSAR Mr Michael Blanchflower SC & Mr Y L Cheung instructed by Messrs Ho, Tse, Wai & Partners for the 2nd and 3rd Appellants 1st Appellant in person Remarks: Application for leave to appeal by 1st, 2nd and 3rd Appellant to Court of Final Appeal. Leave to appeal granted. Please refer to FAMC60 and 61/2004. (1) Application for leave to appeal by 1st, 2nd and 3rd Appellant to Court of Final Appeal. Leave to appeal granted. Please refer to FAMC60 and 61/2004.(2) Appeal by the 1st, 2nd and 3rd appellants appeal dismissed. Please refer to the appeal judgment of FACC1 and 2/2005. |
Cases cited in this judgment