Leung Kwok Hung and Another v. Chief Executive of the HKSAR
Read the full judgment text of CACV 73/2006 on BabelCite. This Court of Appeal judgment was delivered on 10 May 2006.
1. The freedom and privacy of communication are fundamental rights. They are protected by the Basic Law as well as the Hong Kong Bill of Rights Ordinance, Cap. 383 ("the Hong Kong Bill of Rights").
Cites 5 cases
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CACV 73/2006 AND CACV 87/2006 CACV 73/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 73 OF 2006 (ON APPEAL FROM HCAL NO. 107 OF 2005) ______________ BETWEEN
______________ CACV 87/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 87 OF 2006 (ON APPEAL FROM HCAL NO. 107 OF 2005) ______________ BETWEEN
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Before: Hon Stuart-Moore VP, Yeung and Tang JJA in Court Date of Hearing: 26 April 2006 Date of Judgment: 10 May 2006 _______________ J U D G M E N T _______________
Hon Tang JA (giving the judgment of the Court): Introduction 1.The freedom and privacy of communication are fundamental rights. They are protected by the Basic Law as well as the Hong Kong Bill of Rights Ordinance, Cap. 383 ("the Hong Kong Bill of Rights"). 2.These fundamental rights and the limited basis upon which they may be infringed can be found in the following provisions:
3.Thus, under Article 30, inspection of communication by the relevant authorities "in accordance with legal procedures to meet the needs of public security or of investigation into criminal offences" is permitted. Under Article 39(2), the rights and freedoms under Article 14 of the Hong Kong Bill of Rights "shall not be restricted unless as prescribed by law". And that such contraventions shall not contravene the provisions of Article 14 of the Hong Kong Bill of Rights, which require that any such law must protect against "arbitrary or unlawful interference". 4.This appeal concerns covert surveillance by government and whether they fall within the limited power of the government to infringe upon the freedom and privacy of communication which are fundamental rights. 5.We have as guidance for our approach, the following observation in the judgment of the Court of Final Appeal in Leung Kwok Hung and Others v HKSAR [2005] 8 HKCFAR 229 at 248C:
Background 6.There is no operative Hong Kong legislation that provides for all forms of covert surveillance. There are, however, a number of operative statutes which provide for secret interception of limited types of private communications. Such statutory provisions included section 33 of the Telecommunications Ordinance ("section 33"), Cap. 106, which gives the Chief Executive power, whenever he considers that the public interest so requires, inter alia, to order the interception or disclosure to the government of telecommunications. 7.On 27 June 1997, the Interception of Communications Ordinance, Cap. 532 ("IOC Ordinance") was passed to:
8.Section 1 of IOC Ordinance provides:
9.No date has been appointed by the Chief Executive. 10.On 5 August 2005, the Law Enforcement (Covert Surveillance Procedure) Order ("the Executive Order") was published to address concerns about non-compliance with the requirements of Article 30. The background to the Executive Order has been dealt with fully by the judge and it is not necessary for us to repeat them. It is the respondent's case that while the Executive Order is an administrative order only and is not law, it constitutes "legal procedures" for the purposes of Article 30. 11.On 9 February 2006, Hartmann J made the following declarations:
12.He also ordered:
13.Both the 1st and 2nd applicants have appealed against the Order. 14.Before the judge, the applicants also sought the following relief in relation to the IOC Ordinance:
15.The 1st applicant has appealed against the judge's refusal to declare that the Chief Executive, in failing to appoint a date for the implementation of IOC Ordinance, has acted unlawfully. 16.There is no appeal against the second declaration. In any event, we agree with the judge's conclusion and the reasons stated by him, namely, that:
17.The respondent has appealed against the 1st declaration. The appeal IOC Ordinance 18.In para. 97 of the judgment, the judge concluded as follows:
19.The 1st applicant (but not the 2nd applicant), has appealed against the judge's decision in this regard. 20.The 1stapplicant relies principally on the submissions made by Mr Dykes SC to the judge, which were dealt with in paras. 47 to 98 of the judgment. On the basis of the leading authority on the subject, namely, the decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Fire Brigades Union & Ors [1995] 2 AC 513, the judge concluded that section 1(2) of IOC Ordinance did not:
21.The relevant wording of the provision under consideration in Fire Brigades Union was:
22.We agree with the judge that although the wording of section 1(2) of IOC Ordinance is different, the meaning and intent is the same. We also agree that, section 1(2) did not impose a duty on the Chief Executive to bring the IOC Ordinance into force at any particular time, although it did impose a continuing obligation on the Chief Executive to consider whether to bring it into force. 23.We also agree with the judge that:
24.The 1st applicant submitted that Article 48(3) of the Basic Law ("Article 48(3)") requires the Chief Executive to sign the IOC Ordinance into law. Article 48(3) provides:
25.Article 48(3) does not assist in the interpretation of section 1(2) of the IOC Ordinance, which gives the Chief Executive the discretion to determine when a law should become operative. The Legislative Council could have provided for the time within which the legislation must become operative, in which event, the Chief Executive would have to sign the legislation, unless he invokes Article 49 of the Basic Law ("Article 49"). 26.Article 49 provides that the Chief Executive may return a bill passed by the Legislative Council to the Legislative Council within three months for reconsideration, if he considers that the bill is not compatible with the overall interests of the Region. But if the original bill was passed by not less than a two-thirds majority, the Chief Executive must sign and promulgate it within one month or act in accordance with the provisions of Article 50 under which he may dissolve the Legislative Council. 27.The judge concluded that Articles 49 and 50 of the Basic Law were not engaged. Rather, the issue is one of construction of section 1(2) of IOC Ordinance. We agree. 28.The 1st applicant's appeal in relation to the IOC Ordinance is dismissed. The First Declaration 29.The Executive Order was issued by the Chief Executive under Article 48(4) of the Basic Law. These are directions of an administrative kind which are made by the Chief Executive for the purpose of implementing laws and carrying out government policies. The Executive Order was gazetted in August 2005. It is directed to and binds officers of the public service responsible for law enforcement. It directs that no exercise in covert surveillance may be carried out without authorization. It also provides for regular reviews by monitoring authorities of the exercise or performance by the authorising officers of the powers and duties conferred or imposed on them by the Executive Order. However, the monitoring authorities are themselves government officers. 30.Mr Zervos SC, appearing for the respondent, submitted the Executive Order came within the meaning of "legal procedures" in Article 30, and that such legal procedures need not be prescribed by law. That insofar as Article 39 requires that any restriction on Article 14 of the Hong Kong Bill of Rights be prescribed by law, it has been qualified by Article 30. Mr Zervos accepted that but for Article 30, any infringement of Article 14 of the Hong Kong Bill of Rights must be prescribed by law. 31.The judge rejected Mr Zervos' submission in the following terms:
32.We agree. 33.The provisions of the International Covenant on Civil and Political Rights ("ICCPR") have been implemented through the Hong Kong Bill of Rights. Article 14 of the Hong Kong Bill of Rights is identical to Article 17 of the ICCPR. Article 39 provides that such rights and freedoms "shall not be restricted unless as prescribed by law". Furthermore, such restrictions shall not contravene the provisions of the ICCPR. 34.We do not agree with Mr Zervos that Article 30 qualifies the rights and freedoms implemented through the Hong Kong Bill of Rights. We read Article 30 as limiting the restrictions that can be placed on such freedoms. In other words, any restriction prescribed by law must be "to meet the needs of public security or of investigation into criminal offences". Furthermore, the restrictions to be prescribed by law under Article 39(2) must be rationally connected with one or more of the legitimate purposes, namely, "the needs of public security or of investigation into criminal offences". Needless to say, any such law must satisfy the principle of legal certainty and be proportionate. 35.The Basic Law gives effect to the basic policies of the People's Republic of China regarding Hong Kong which was formally expressed in the Joint Declaration. In para. 3(5) of the Joint Declaration, the Central Government declared as a basic policy regarding Hong Kong that:
36.In Annex I to the Joint Declaration which elaborated the Central Government's basic policies, Part XIII Basic Rights and Freedoms, provides, inter alia, as follows:
37.We regard the submission that Article 30 should be read as cutting down on the protection provided by Article 39 as misconceived. 38.It follows that, in our view, any restrictions on the fundamental rights must be prescribed by law. The Executive Order is not law. The first declaration was rightly made. 39.The cross-appeal by the respondent is dismissed. The Order 40.The judge described the Order as an exceptional remedy but one which the court has the jurisdiction to make. He said:
41.The judge pointed out that as a result of his declarations, there will be no operative body of law in place which, in compliance with the Basic Law, regulates covert surveillance by law enforcement agencies. He said:
42.He went on to say in paras. 158 and 159 of his judgment:
43.We agree the court can make the Order in truly exceptional circumstances. Here, as the judge said:
44.Mr Dykes SC, for the 2nd applicant, submitted that there is an alternative. The Chief Executive could nominate a date for the operation of the IOC Ordinance. But, the IOC Ordinance is restricted to "the interception of communications transmitted by post or by means of a telecommunication system" and does not cover other aspects of covert surveillance. So, it is not a complete answer. Secondly, we agree with the judge that:
45.The 1st applicant described as paradoxical the judge's refusal to order the Chief Executive to bring the IOC Ordinance into operation on the ground that it would otherwise be in danger of acting unconstitutionally, but would grant a temporary stay of the declarations. There is no paradox. The power to grant a temporary stay depends on the jurisdiction of the court. If there is jurisdiction to do so, the court would be performing its proper constitutional role when it decides whether or not to exercise its jurisdiction. 46.Mr Dykes has further submitted that the Order is inconsistent with Article 160 "which prescribed the only consequences of discovered invalidity as being amendment of the relevant law or that law ceasing to have force." However, in HKSAR v Hung Chan Wa and Another, CACC 411/2003, unreported 26 January 2006, in a different context but having equal application to the present situation, Stock JA, giving the judgment of the court, explained that Article 160 has no application to judicial 'discovery' of contravention with the Basic Law. 47.Article 160 provided, that:
48.What was envisaged by Article 160 were situations such as those in Article 17 of the Basic Law which expressly provides for the invalidation of certain laws passed by the legislature of the HKSAR, but that:
49.Mr Dykes also submitted that the Order is inconsistent with the relevant declaration:
50.But that is in the nature of an order of this kind and does not provide an answer whether the jurisdiction to make such orders exists and if so, under what circumstances should the jurisdiction be exercised. 51.There is strong support for the existence of such jurisdiction in the decision of the Supreme Court of Canada in Manitoba Language Rights [1985] 1 SCR 721. 52.The Manitoba Language case was concerned with the constitutionality of the Official Language Act 1890, which provided, inter alia, that:
53.The Supreme Court of Canada held that the Official Language Act 1890 to be unconstitutional as being contrary to the Manitoba Act, 1870 (which required legislation to be in French and English) and as a result, all laws, passed after 1890, were invalid. 54.The Supreme Court of Canada, however, held that in order to avoid a legal vacuum and ensuring the continuity of the rule of law,
55.The Supreme Court of Canada felt able to do so because:
56.It also held that the constitutional status of the rule of law is beyond question and that:
57.The rule of law also lies at the foundation of Hong Kong. 58.Mr Dykes accepted that dire consequences such as chaos, might justify the upholding of unconstitutional laws. He said the jurisdiction can be found under the doctrine of state necessity. 59.This is how Mr Dykes has put it in para. 8 of his skeleton submissions:
60.The Supreme Court of Canada found "analogous support … under the doctrine of state necessity" (page 29), a doctrine evolved by the common law to deal with:
61.The Manitoba Language case discussed the circumstances in which the doctrine of state necessity have been invoked by the courts. A number of such cases involved challenges to the laws of an illegal and insurrectionary government. Some of these cases arose out of the American Civil War. A more recent example, is the decision of the Privy Council in Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (PC), which was concerned with Southern Rhodesia. In Hong Kong, the Court of Final Appeal upheld the recognition of a Taiwanese Bankruptcy Order on similar principles in Chen Li Hung and Another v Ting Lei Miao and Others [2000] 3 HKCFAR 9, relying on:
62.One common feature of the "state necessity doctrine" is that:
63.We recognise, as was recognised in the Manitoba Language case, that this feature of the doctrine of state necessity is not satisfied in the present case. We agree with the statement in the Manitoba Language case at 31 that:
64.The doctrine of state necessity is part of the common law and is not to be taken as a final or exhaustive statement of the court's jurisdiction to deal with analogous situations. 65.Indeed, as the Supreme Court of Canada's discussion on Special Reference No. 1 of 1955, PLR [1956] WP 598, a decision of the Federal Court of Pakistan, shows:
which is:
66.The approach adopted in the Manitoba Language case, has been applied to different situations in Canada. 67.R v Swain [1991] 1 SCR 933, the provisions of the Criminal Code that required the detention of a person acquitted on the ground of insanity were held contrary to the Charter of Rights. However, the Supreme Court of Canada held that there should be a six-month "period of temporary validity" so that judges would not be compelled to release into the community all insane acquittees. 68.In the judgment of Lamer CJ and La Forest, Sopinka and McLachlin JJ at 1021 it was said:
69.Wilson J agreed at page 1037. 70.In Schachter v Canada [1992] 2 SCR 679, where the Supreme Court of Canada concluded that certain legislation conferring statutory benefits was unconstitutional because it was "under-inclusive", Lamer CJ for the majority of the court said at page 716:
71.At page 715:
72.Mr Dykes accepted that on the facts of the Manitoba Language case, that decision was justified and could be accommodated by the common law. Indeed, he agreed that if it could be shown that a law essential to the maintenance of the rule of law was unconstitutional, the court could give temporary effect to it where this is necessary to preserve the rule of law. 73.This is what the judge said:
We see no reason to disagree with the judge's conclusion. 74.We are of the view that the extraordinary dangers, which Hong Kong might face in the absence of a stay, and which would threaten the rule of law and the fabric of our society, give rise to the jurisdiction to stay. 75.Mr Dykes was more ready to accept that the Order might be made in relation to section 33, but not in relation to the Executive Order. 76.In para. 65 above, we drew attention to the Special Reference No. 1 of 1955, where it was the executive branch of government which proclaimed that laws were retrospectively valid and enforceable, and the role of the judiciary was simply to condone the actions of the executive. See page 34 of Manitoba Language case. Here, the Executive Order was a failed attempt to comply with Article 30, and section 33 was a failed attempt to comply with Article 39. We see no difference in principle between a failed attempt by the executive or the legislature to comply with the Basic Law. Both are unconstitutional. The Order has the same effect on section 33 as it has on the Executive Order. It gives colour to the legality of actions taken under section 33 and the Executive Order. Insofar as a refusal to make the Order has the same direful consequences, we are of the view that there is jurisdiction to make the Order in respect of the Executive Order. 77.The judge also found support in decisions by the Strasbourg Court. He referred to Walden v Liechtenstein (Application No. 33916/96, 16 March 2000, unreported), where the court recognised that the temporary preservation of a law by the domestic courts of Liechtenstein, even though it violated the rights of the applicant, served the legitimate aim of maintaining legal certainty. 78.Mr Dykes accepted that legal certainty is an aspect of the maintenance of law and order, and hence the rule of law. 79.The judge concluded at para. 167 that:
80.The question of a temporary stay is unlikely to arise in the United Kingdom because section 4 of the Human Rights Act 1998, enables the courts (High Court and above) to make a declaration of incompatibility with a convention right but such a declaration:
81.In South Africa, the constitution provides that the courts, in deciding a constitutional matter, may suspend any declaration of invalidity of a legislative provision for any period and on any conditions it sees fit to allow the compliant authorities to enact corrective legislation. 82.We do not believe the fact that in the United Kingdom and in South Africa there are these express provisions necessarily show the absence of any inherent power at common law to deal with situations which might otherwise have arisen. 83.As the judge said:
84.Furthermore, in England, in Re Spectrum Plus Ltd (in liquidation) [2005] 2 AC 680, the House of Lords considered whether the court has the power to make a prospective overruling. It is relevant to note that in Re Spectrum Plus Ltd was not concerned with any fundamental human right. It was concerned with whether the charge over book debts, present and future, granted by Spectrum Plus Ltd ("Spectrum"), to the National Westminster Bank plc ("the bank") under a debenture was a fixed charge, which it was expressed to be, or merely a floating charge. If it was a floating charge, preferential debts have priority under section 175(2)(b) of the Insolvency Act 1986. In deciding that the charge was a floating charge, the House of Lords overruled Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyd's Rep 142, a first instance decision. It was in such context that it was argued that the House of Lords should overrule Siebe Gorman only for the future because that decision had been acted on as correct since its decision. It is not surprising that the argument was rejected. Even so, Lord Nicholls said:
85.Lord Hope of Craighead at para. 74 and Lord Walker of Gestingthorpe at para. 161 expressed agreement with Lord Nicholls' views. Lord Hope of Craighead said at para. 69:
86.The majority view on the court's jurisdiction in Spectrum is consistent with the views expressed in the Manitoba Language case that:
That is to say the court must have the inherent power to do whatever is necessary to preserve the rule of law. In highly exceptional circumstances, the power included the power to uphold temporarily otherwise unlawful laws or acts. 87.In Bellinger v Bellinger (Lord Chancellor intervening) [2003] 2 AC 467 which was concerned with the capacity of a transsexual to undergo a marriage under the Matrimonial Cases Act 1973 in the reassigned gender, Lord Nicholls observed that:
88.In R(Hooper) v Secretary of State for Works and Pensions [2003] 1 WLR 2623, Lord Phillips of Worth Matravers MR in the judgment of the court said at para. 77:
89.However, the House of Lords in R (Hooper) v Secretary of State for Works and Pensions [2005] 2 FCR 183 at 201, Lord Hoffmann described Walden as a puzzling decision. 90.Although the English decisions are not directly applicable, they provide some support for the jurisdiction to make the Order. 91.In Ha v State of New South Wales [1997] 189 CLR 465, the High Court of Australia was unanimous that the court had no power to overrule cases prospectively. It said at 504:
92.Ha was concerned with a state law imposing tobacco wholesalers' and retailers' licence fees and the issue was whether the licence fees were duties of excise within section 90 of the constitution and fell within the exclusive power of the Commonwealth Parliament. It held by a majority that they were. Ha was not concerned with the question whether there was jurisdiction to recognise as temporarily valid otherwise invalid laws or acts in order to preserve the rule of law. So we do not regard it as an authority against making the Order. Lord Hope of Craighead in Spectrum at para. 68 said he did not think Ha could be taken as the last word on this issue. 93.It was also tentatively suggested that since a stay of the effect of the declaration was possible pending appeal, it was unnecessary for the judge to make the Order. He could have stayed the declarations pending appeal. 94.When important constitutional points are involved, and where it is legitimate for the parties to want a determination by the Court of Final Appeal, it may be that the court can stay the effect of the declarations pending appeal. If the judge had stayed the 1st declaration pending appeal, it seems that Mr Dykes would not complain. However, there was no application for a stay on this basis. In any event, there was no appeal so far as the second declaration was concerned so no stay pending appeal could have been made in relation to section 33. 95.We are of the view that the judge has jurisdiction to make the Order. The making of the Order was an exercise of discretion. We see no reason to interfere. In any event, on the basis that the maintenance of the rule of law requires it, we would have exercised our discretion in the same way. 96.The appeal by the 1st and 2nd applicants is dismissed. 97.At the conclusion of the hearing of the appeal, the parties asked us to grant leave to appeal to the Court of Final Appeal and to certify the following as question of great general public importance:
98.We were also asked to dispense with a Notice of Motion under section 24(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 ("HKCFAO") and to impose no conditions under section 25 of HKCFAO other than that the Appellant in the Court of Final Appeal should file a Notice of Appeal to the Court of Final Appeal within 7 days of the judgment. 99.It was said that dispensing with the Notice of Motion would save time and costs. 100.The court should not have been asked to make such a highly unusual order without the benefit of any submission on our power to make such an order. We make no such order. 101.The appeal and cross appeal are dismissed. We make an order nisi that there be no order as to costs save that the 2nd applicant's costs be taxed in accordance with Legal Aid Regulations.
1st Applicant (Appellant in CACV 87/2006), in person, present. Mr Philip Dykes, SC and Mr Hectar Pun, instructed by Messrs K M Cheung & Co, for the 2nd Applicant (Appellant in CACV 73/2006) Mr Kevin P Zervos, SC, SADPP and Mr Alexander Stock, instructed by Department of Justice, for the Respondent. Appeal by the Applicant to the Court of Final Appeal. Appeal allowed. Please refer to FACV12/2006 dated 12 July 2006. |
Cases cited in this judgment
Further hearings and rulings under CACV 73/2006